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2013 DIGILAW 428 (PAT)

Vijay Kumar Thakur v. State of Bihar

2013-04-01

NAVANITI PRASAD SINGH

body2013
JUDGMENT Counter affidavit, rejoinder and supplementary affidavit are on record. Heard learned counsel for the petitioner, Mr. Piyush Lall, learned counsel for the Bihar Industrial Area Development Authority and learned counsels for the State and the Accountant General. 2. The petitioner has come to this Court primarily with regard to five grievances all related to retiral and post retiral claims. The first grievance of the petitioner is that for the period he rendered service under the State Government, he is entitled to pro-rata pension in a manner similar to a co-employee as per the decision of this Court in the case of Hem Chandra Jha versus the State of Bihar & Ors., being C.W.J.C. No.5570 of 1999 disposed of on 12.04.2001 (part of Annexure-16 series). His second grievance is that for the period he was under Government employment deductions of G.P.F. were made, he is entitled to refund thereof with statutory interest up to date. His third grievance is that he has not been extended the benefit of 6thPay Revision recommendations which were effective from 01.01.1996 and connected therewith is the fourth that his gratuity needs to be revised accordingly. His last and fifth grievance is that certain recoveries have been made from his pensionary benefits much after his superannuation without any proceeding on the ground that his pay fixation upon first and second time bound promotion was wrongly made. Those recoveries are unsustainable at this point of time. 3. The facts are not in dispute. The petitioner whose date of birth is 17.11.1944 was selected and appointed as Typist Clerk in the office of Technical Manager of Large Industrial Estate, Muzaffarpur on 21.11.1964. In 1974, the Bihar Industrial Area Development Authority Act, 1974 (hereinafter referred to as the “Act”) was enacted by the State Legislature. All the Industrial Estates large or small were transferred to the Bihar Industrial Area Development Authority, which was an autonomous body under the Act. State was divided into different zones. For different zones there were different Industrial Area Development Authority. The petitioner thus became an employee of the North Bihar Industrial Area Development Authority, being part and parcel of Large Industrial Estate, Muzaffarpur, who stood transferred lock, stock and barrel to the Industrial Area Development Authority. State was divided into different zones. For different zones there were different Industrial Area Development Authority. The petitioner thus became an employee of the North Bihar Industrial Area Development Authority, being part and parcel of Large Industrial Estate, Muzaffarpur, who stood transferred lock, stock and barrel to the Industrial Area Development Authority. It may be mentioned here that though the petitioner was appointed at Large Industrial Estate, Muzaffarpur in 1971, he was transferred to Rural Industrial Estate, Ramnagar, West Champaran, which, ultimately, vested lock, stock and barrel in the North Bihar Industrial Area Development Authority in the year 1978. Petitioner worked there and, ultimately, superannuated on 30.11.2002. Keeping in view the aforesaid facts, this Court has to examine the grievances of the petitioner. 4. Mr. Piyush Lall, learned counsel for the Bihar Industrial Area Development Authority (hereinafter referred to as the “BIADA”) submits that there are two different status of service of the petitioner. First as a Government employee from 1964 to 1978 for a period of 14 years. From 1978 up to his superannuation in the year 2002, he was not a Government employee, but an employee of an autonomous statutory body, i.e., the North Bihar Industrial Area Development Authority. The service conditions are not common. It is not a case of deputation. In 1978, the petitioner was in the Rural Industrial Estate, Ramnagar, West Champaran. This estate stood transferred to the North Bihar Industrial Development Authority under the Act lock, stock and barrel. All assets and liabilities stood transferred including that of the petitioner who then became absorbed as a part and parcel of the Industrial Area Development Authority. In my view, the stand is correct and we have to examine the five grievances of the petitioner keeping in view this distinction in mind. 5. The first grievance of the petitioner is with regard to pension. Petitioner submits that being a Government employee he is entitled to receive pension. State and learned counsel for the BIADA, Mr. Piyush Lall on the other hand submits that in view of the undisputed facts, petitioner was a Government employee only up to 1978 and thereafter he was a permanent employee of the North Bihar Industrial Area Development Authority, which is an autonomous statutory body distinct from the Government. Thus, petitioner cannot claim full pension as a Government servant. He can at best claim pro-rata pension for the period served under Government. Thus, petitioner cannot claim full pension as a Government servant. He can at best claim pro-rata pension for the period served under Government. Learned counsel for the State points out that so long as the petitioner was with the Government he was a temporary employee. For temporary employee to be entitled to pension he had to be in service as such for minimum 15 years. Learned counsel for the petitioner points out that this condition of 15 years of temporary service was subsequently amended and made as 10 years. Petitioner had admittedly worked in the Government for 14 years in temporary capacity, thus, he had completed the qualifying period. Learned counsel has referred to the judgment of this Court which has considered different aspects of the matter, namely, the case of Hem Chandra Jha (supra). 6. In my view, the petitioner is entitled to only pro-rata pension on the basis of the authority aforesaid. The implication of change in qualifying service, which was reduced from 15 years earlier to 10 years and, is applicable to persons like the petitioner. Thus, on parity of reasoning, the petitioner is entitled to pro-rata pension from the State Government for the period he has served under the State Government, which would be from 1964 to 1978. I, therefore, direct the Industries Development Commissioner-cum-Principal Secretary, Industry Department, Government of Bihar to ensure that necessary formalities for payment of pro-rata pension from the Government for the aforesaid service be made in respect of petitioner within a period of eight weeks from the date of production of a copy of this order before him. 7. Here, it may be noted that State rightly pointed out that petitioner cannot claim full pension, especially in view of his own undertaking given, while he claimed payment of full amount of C.P.F., which is Annexure-A to the counter affidavit of the State. In that undertaking petitioner has categorically stated that if the amount of C.P.F., as apportioned by the Industrial Area Development Authority, is paid to him with interest he will lay no claim for pension. It is elementary that a person cannot be permitted to probate and reprobate. Upon this undertaking, C.P.F. contribution with interest has been paid to him. He cannot now turn around and claim full pension. 8. The second grievance of the petitioner with regard to General Provident Fund is correct. It is elementary that a person cannot be permitted to probate and reprobate. Upon this undertaking, C.P.F. contribution with interest has been paid to him. He cannot now turn around and claim full pension. 8. The second grievance of the petitioner with regard to General Provident Fund is correct. This is a deduction which had been made from petitioner’s salary while he was under the services of the State Government as between the year 1964 to 1978. There is no denial by the State that deductions were made. If deductions were made then at least upon petitioner superannuating he was entitled to full refund thereof along with interest. That cannot be denied to the petitioner. It is not in dispute that it was petitioner’s money deducted by the State and kept by the State. State was a trustee on behalf of the petitioner who was beneficiary. It is for the State to account for the money and pay the same to the petitioner with due interest. As per earlier order passed by this Court, petitioner was asked to make a representation to the Industry Development Commissioner-cum-Secretary, Industry Department, Government of Bihar. In the supplementary affidavit, it is stated that such a representation was made but there has been no response. A copy of that representation was also forwarded to the Director, Provident Fund, Government of Bihar, respondent no.12, but there was no response. 9. In such a situation, I am left with no option but to direct the Industry Development Commissioner-cum-Principal Secretary, Industry Department, Government of Bihar as well as the Director, Provident Fund, Government of Bihar to make necessary enquiries and ensure payment of G.P.F. of the petitioner for the period 1964 to 1978 along with interest up to date within a period of eight weeks from the date of production of a copy of this order before them. 10. The third grievance of the petitioner is with regard to the 6thPay Revision recommendation with effect from 01.01.1996. Learned counsel for the petitioner submits that the 6thPay Revision recommendation was effective from 01.01.1996. Mr. Piyush Lall on the other hand submits and rightly so that it was so effective for Government employees in 1996. Petitioner was no more in Government employment rather since 1978 he was a permanent employee of the North Bihar Industrial Area Development Authority. Thus, the 6th Pay Revision recommendation would not apply to him. Mr. Piyush Lall on the other hand submits and rightly so that it was so effective for Government employees in 1996. Petitioner was no more in Government employment rather since 1978 he was a permanent employee of the North Bihar Industrial Area Development Authority. Thus, the 6th Pay Revision recommendation would not apply to him. It was pointed out that so far as the Industrial Area Development Authority is concerned, later it accepted the recommendations and it was made applicable only with effect from November, 2006 by when petitioner long since superannuated. 11. In my view, this stand is correct. Pay Revision recommendation was for Government employees. It did not automatically apply to Corporation or autonomous bodies unless and until they accepted it and extended the benefit therein to its employees. So far as the Industrial Area Development Authority is concerned, it extended the benefits only with effect from November, 2006. As noted earlier, petitioner had superannuated on 30th November, 2002, long before such benefits were extended, thus he is not entitled to the said benefit. Consequently, his fourth grievance with regard to calculation of gratuity, accordingly, cannot be acceded to. The gratuity as has been calculated and paid has been so done correctly and, thus, his fourth grievance also cannot be acceded to. 12. Now, we come to the last grievance, i.e., with regard to recovery which has been made. The ground for making substantial recoveries and, that too, without any proceeding and much after superannuation is that though the petitioner was entitled to first and second time bound promotion, he was granted the pay-scale in the next higher grade to which he was entitled to. There is no denial that petitioner had no role to play in this regard. 13. In my view, had these corrections been made while petitioner was in service or at a time proximate to grant to pay-scale, the matter would have been totally different. But, these pay-scales were granted to the petitioner decades earlier and now much after his retirement are being sought to be corrected and, consequently, recoveries have been made from the retirement benefits. This is not permissible. The right to correct and recover monies paid out of mistake is right of an employer as has been held by the Full Bench of this Court in the case of Ram Binod Singh Vs. the State of Bihar & Ors. This is not permissible. The right to correct and recover monies paid out of mistake is right of an employer as has been held by the Full Bench of this Court in the case of Ram Binod Singh Vs. the State of Bihar & Ors. since reported in 2007(3) PLJR 398 and also by the Apex Court in the case of Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. since reported in (2012) 8 Supreme Court Cases 417. But, in the second judgment itself and in particular paragraph-15 thereof, the Apex Court has noticed an exception in the shape of the decision of the Apex Court in the case of Abdul Kadir wherein it has been held that even though a mistake was committed while there is right to correct such recoveries cannot be made as a result of correction after the person has superannuated. That would be patently unjust. 14. Thus, on the authority aforesaid, it has to be held that the recovery of Rs.65,629.90 from the retiral dues of the petitioner on account of wrong pay fixation cannot be sustained. I, therefore, direct the Managing Director of BIADA to ensure refund thereof of the aforesaid amount to the petitioner within six weeks from the date of production of a copy of this order before him. If it is not so refunded within six weeks from today then the authority would be liable to pay interest at the rate of 6% per annum on the aforesaid dues from the time the deduction was made up to the time it is refunded. 15. In view of the aforesaid observations and directions, this writ petition stands disposed of.