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2009 DIGILAW 1295 (JHR)

Bharat Bhushan Prasad v. State of Jharkhand

2009-09-15

D.G.R.PATNAIK

body2009
JUDGMENT : By filing IA No. 2854 of 2009, the petitioner informs that during the pendency of the writ petitioner he has retired from service under the Board on 31.8.2008 and therefore he wants to add further relief by way of amendment to the writ petition for issuance of a direction to the respondents to pay his retiral benefits. Considering the nature of the prayer and the fact that the amendment would not change the relief sought for, prayer for amendment to the writ petition is allowed. The IA No. 2854 of 2009 shall form part of the writ petition. Heard the learned counsel for the petitioner and the learned counsel for the respondent Jharkhand State Electricity Board and the respondent BSEB. The petitioner in this writ petition has prayed for quashing the letter dated 24.3.2007 (annexure 2) whereby increment earlier granted to him has been cancelled, in pursuance of the order no. 847 dated 30.9.2003. The petitioner has also prayed quashing of the order dated 30.9.2003 ( annexure 3) whereby the penal provision has been given retrospective effect and the increment has been sought to be withdrawn by way of recovery from the petitioner. The petitioner has also prayed for direction to the respondents to pay him the arrears of increment due from 5.8.89 to 5.9.1998 as also arrears of subsistence allowance @ 75% which was allowed by memo dated 17.3.2002 since despite such order, 50% only has been paid to the petitioner. Further prayer has been made for a direction to the respondents to pay difference of arrears of pay scales pursuant to the benefits of selection grade w.e.f. 5.8.1992 and that of super selection grade from 8.5.2000 and lastly for payment of retiral benefits. The petitioner was originally appointed under the respondent Bihar State Electricity Board and in due course, he was posted as an Account Assistant in the Electricity Department, Karandih, Jamshedpur, under the jurisdiction of the JSEB. Earlier, he was placed under suspension by order dated 12.9.1998 and departmental proceeding was initiated against him. At the conclusion of the proceeding, order of punishment of censure and payment of subsistence allowance during the period of suspension, was passed. Earlier, he was placed under suspension by order dated 12.9.1998 and departmental proceeding was initiated against him. At the conclusion of the proceeding, order of punishment of censure and payment of subsistence allowance during the period of suspension, was passed. It is contended that on the relevant date, by virtue of the Standing Order no 817 dated 2.6.1999 which was in force, the petitioner was entitled for notional increment for the period of suspension and accordingly, he was granted notional increment for the period of suspension i.e. 12.9.1998 to 9.7.2001. The grievance of the petitioner is that the benefit of notional increments already paid to the petitioner has been abruptly ordered to be withdrawn by order dated 24.3.2007 (annexure-2) without giving any prior notice or opportunity of hearing to the petitioner. Learned counsel for the petitioner submits that as per the contention of the respondents , the above order of withdrawal of benefit of notional increment has been passed purportedly on the basis of the earlier order dated 30.7.2003 passed by the Bihar State Electricity Board. The petitioner has assailed both the impugned orders on the ground that order dated 30.9.2003 does not apply to the petitioner, since the said order was passed by the Bihar State Electricity Board and after formation of the State of Jharkhand, the aforesaid circular cannot be implemented against the employees of the JSEB. It is further submitted that the aforesaid order of withdrawal of notional benefits of increment with retrospective effect is apparently penal in nature and the same cannot be given effect to or acted upon by the respondnets. Furthermore, since in the departmental proceedings, the petitioner has already been given punishment by way of censure and payment of subsistence allowance during the period of suspension, no further punishment could be imposed by way of withdrawal of notional increment. In the counter affidavit of the JSEB, the stand taken is that the Jharkhand State Electricity Board, by notification dated 20.3.2001 has adopted all the rules, sub rules, ordinance of the Bihar State Electricity Board, Patna which was issued under order of the JSEB. In the counter affidavit of the JSEB, the stand taken is that the Jharkhand State Electricity Board, by notification dated 20.3.2001 has adopted all the rules, sub rules, ordinance of the Bihar State Electricity Board, Patna which was issued under order of the JSEB. It is sought to be explained that though the BSEB had allowed notional annual increment to the petitioner in accordance with earlier circular dated 2.6.1999, but such benefit has been withdrawn by the JSEB and as such, the excess payment made to the petitioner is legally recoverable from him for which necessary orders, vide annexure 2, has been passed. From the rival submissions, it is apparent that before passing the impugned order of withdrawal of notional increment granted to the petitioner and proceeding to recover the purported excess amounts paid to him, no prior notice was given to him and he was not given an opportunity of hearing. It also appears that the petitioner has taken reasonable ground that the order of withdrawal of benefit of the notional increment and recovery of the amount on the ground of excess payment is in the nature of penal action and the same cannot be taken recourse to without affording the petitioner a reasonable opportunity of hearing . In the light of the above facts and circumstances, the impugned order (annexure 2) is hereby quashed. The matter is remitted to the concerned authority of the respondent Jharkhand State Electricity Board to reconsider the entire issue and to take an appropriate decision within three months from the date of this order and to communicate the decision taken to the petitioner effectively. The respondents shall take decision also within the period stipulated above on the petitioner’s claim for arrears of salary due for payment as also the benefit of selection grade and super selection grade from the date it fell due. Pending decision on the above issue, the respondents shall assess and pay to the petitioner all the retiral benefits which is due and payable to him since the date it fell due for payment. With the above observations, this application is disposed of. Let a copy of this order be given to the learned counsel for the respondents.