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2009 DIGILAW 812 (JHR)

Muneshwar Tiwari v. Bihar State Electricity Board

2009-05-21

AJIT KUMAR SINHA

body2009
ORDER The present writ petition has been preferred for following reliefs:- W.P.(S ) No. 3651 of 2002 In the present writ petition the petitioner prays for issuance of a writ/order/direction in the nature of certiorari for quashing of office order no. 1686 dated 10.5.2002 by which the Joint Secretary, Patna, Bihar State Electricity Board (respondent no.1) has dismissed the petitioner from the service with immediate effect and for issuance of an appropriate writ commanding upon the concerned respondents to revoke the dismissal order of the petitioner. In the present writ petition the petitioner prays for issuance of a writ/order/direction in the nature of mandamus commanding upon the concerned respondents to immediately and forthwith release the legally payable dues of the petitioner which has not been paid to the petitioner till date. The second writ petition has been preferred for consequential benefit/relief which is dependant on the first writ petition and thus, both the writ petitions are disposed of by this common order. 2. The facts, in brief, are set out as under: W.P.(S ) No. 3651 of 2002 The petitioner was appointed as Junior Accounts Clerk on 28.6.1967 in the office of Bihar State Electricity Board, Patna. After bifurcation of State as per his option he was allocated to Jharkhand State and continued therein. According to the petitioner, he worked with full satisfaction with respondent Board and had a unblemished service record till 1996. A departmental enquiry was initiated against him on 2.11.1998 and the enquiry officer was appointed to conduct the proceeding and after giving opportunities to the petitioner he submitted enquiry report on 27.8.2001 and as per his report the charges levelled against the petitioner was found to be proved. The charges levelled against the petitioner relate to illegal realization of money from the consumers on alleged charges of meter tampering. The charges framed against the petitioner are as under: 1. During his tenure in January, 1986, with a view to black mail the consumer namely Jaybali Dubey he prepared wrong energy bill amounting to Rs.4977/-whereas actual bill due was Rs.14/-only and for that reason meter reading of that consumer was found ‘zero’. 2. The charges framed against the petitioner are as under: 1. During his tenure in January, 1986, with a view to black mail the consumer namely Jaybali Dubey he prepared wrong energy bill amounting to Rs.4977/-whereas actual bill due was Rs.14/-only and for that reason meter reading of that consumer was found ‘zero’. 2. In the month of June 1986, with a view to black mail the consumer namely, Kameshwar Sahay he prepared wrong energy bill amounting to Rs.5772/-whereas actual bill dues was Rs.385/-only and in this regard audit team also reported that an excess bill of Rs.5335.85 was found against the said consumer. 3. He adjusted a sum of Rs.1506.86 towards the bill charged against one consumer namely, Ram Ratan Singh without recommendation or order passed by superior authority. 4. He prepared an average bill in spite of correct meter of consumers namely, Shyam Lal and Jerrudin Ansari and after fulfillment of his personal interest, he adjusted the same. Finally, the joint secretary, Bihar State Electricity Board vide its impugned order dated 10.5.2002 after giving second show cause notice on 12.2.2002 dismissed the petitioner from service which is sought to be challenged in the present writ petition. After dismissal, being agriieved by the conduct of the concerned respondent authority the petitioner preferred a representation on 23.4.2004 for payment of his admissible dues which is still pending. He preferred the present Writ Petition (S) No.3360/2007 for payment of dues of salary for the period from 1.4.1992 to 22.4.1992 along with interest, payment of subsistence allowance to him for the period from 23.4.94 to 22.1.96, dues of increment w.e.f. 1994 to 2002 along with interest and pecuniary benefits of pay revision from 1.4.97 to 31.10.2000, transfer allowance on account of transfer from Gomia Sub-Division to Ganeshpur Sub-Division and amount of G.S.S. which has been deduced since May, 1987. 3. The respondent Board in their reply submitted that full opportunity was given including Second Show Cause Notice and since it is a case of dismissal for misconduct and thus the question of payment of salary and other dues as claimed was not maintainable. 4. 3. The respondent Board in their reply submitted that full opportunity was given including Second Show Cause Notice and since it is a case of dismissal for misconduct and thus the question of payment of salary and other dues as claimed was not maintainable. 4. The main contention raised by the learned counsel for the petitioner is that the Joint Secretary, Bihar State Electricity Board had no jurisdiction to dismiss the petitioner from service after cadre allocation and bifurcation of State since at the relevant time he was working at Nirsa, Dhanbad when the charges was framed and even at the time of dismissal in 2002 he was within the territorial jurisdiction of State of Jharkhand. In this regard, he has referred to and relied upon 2002 (2) JCR pg. 602 and 2002(1) JCR pg. 401 to support his contention. 5. In 2002 (2) JCR pg 602, this court had remitted the matter back without deciding the issue on merit and thus, the same cannot be treated as binding precedent since the issue was not decided on merit. As regards, the second case the same relates to a Government servant. 6. This Court in the case of State of Bihar vs. Arvind Vijay Bilung & Anr. reported in 2002(1) JCR page 401 (Jhr) at paragraph-12 held as under:- “2. In such a situation and in such a background where the State is carved out of an existing State the cooperation between the two States becomes meaningful. If, therefore, the State of Bihar has, in its possession any material against a Government servant who by virtue of Section 74 of the Act, is now in the service of the State of Jharkhand and if the State of Bihar thinks that such material warrants initiation of an action against such a person it is open to the State of Bihar to forward such material to the State of Jharkhand for such action as it considered appropriate by the State of Jharkhand. Let it be very clearly understood that only role of the erstwhile State in such a situation is merely to pass on the information or the relevant material to the State of Jharkhand and leaving the rest for the State of Jharkhand to do. Let it be very clearly understood that only role of the erstwhile State in such a situation is merely to pass on the information or the relevant material to the State of Jharkhand and leaving the rest for the State of Jharkhand to do. Similar would be the case for the State of Jharkhand if an employee is in a place in Bihar and if the State of Jharkhand has any material in its possession which may be required to be forwarded to the State of Bihar for appropriate action against such an employee.” 7. This found favour in subsequent judgement in the case of Arbind Kumar Sinha vs. State of Bihar (Now Jharkhand) & Ors. reported in 2006 (4) JCR page 285 (Jhr) and a direction was issued at paragraph-3 as under:- “3. The State of Bihar at its own or on the request of the State of Jharkhand may forward such materials, which are in its possession against the petitioner for taking action against him and the State of Jharkhand on receipt of such materials from the State of Bihar may pass an appropriate order in accordance with law within a period of six months from the date of receipt / production of a copy of this order.” .8. The Central Government is the authority under Section 72(2) of the Reorganisation Act, 2000, to determine the successor-State to which every person to be finally allotted for service, including the effective date from which such allotment is to take effect or deemed to have taken effect. A period of one year prescribed under Proviso to sub-section (1) to Section 72 for Central Government to issue general or special order provisionally allocating a person to serve the State of Jharkhand. 9. Section 74 of the Reorganisation Act, 2000, is a deeming provision whereunder a person, who was holding or discharging duties of any post or office in connection with the existing-State of Bihar prior to November 15, 2000. On and from November 15, 2000 such person shall continue to hold the same post or office, in that successor-State under which the area falls, and shall be deemed, on and from November 15, 2000, to have been duly appointed to the post or office by the Government or appropriate authority in that successor-State, under whom the posts and office falls. 10. 10. Admittedly, every person, who immediately before November 15, 2000, was serving ‘the existing-State of Bihar’, their appointing authority was the ‘existing-State of Bihar’, or the appropriate authority of said ‘existing-State of Bihar’. 11. On and from November 15, 2000, for all purpose, the ‘existing-State of Bihar is not in existence having bifurcated and two successor-States, both came in existence since November 15, 2000, one cannot compare the ‘existing-State of Bihar’, as was existing prior to November 15, 2000, nor can make it synonymous to successor-State of Bihar, which came into existence on November 15, 2000. 12. As there should be an appointing authority for every person, ‘the existing-State of Bihar’ for all purpose having become non-existence, as it become necessary to make one or other successor-State or appropriate authority of that successor-State to be the appointing authority, the provision of Section 71 of Reorganisation Act, 2000 seems to have been incorporated by the Parliament. 13. In view of the provisions referred to and discussions as made above, the present State of Bihar has no jurisdiction to take disciplinary action against persons holding posts and office in the State of Jharkhand, like petitioners. 14. Relying upon the aforesaid judgements the matter is remitted to the Joint Secretary, Jharkhand State Electricity Board, to take a fresh decision based on the records available in the matter in accordance with law, after affording opportunity to the petitioner and dispose of the same in accordance with law preferably within a period of six months from the date of receipt of a copy of this order.