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2013 DIGILAW 994 (JHR)

Sunimoy Bhattacharjee v. State of Jharkhand

2013-08-31

APARESH KUMAR SINGH

body2013
ORDER 1. Heard counsel for the parties. 2. The petitioner is seeking quashing of part of the notification no. PPO No. GMLCSP057 and GPO No. 1395/2010 dated 11th November 2010, whereby an amount of Rs. 2,02,805/- has been adjusted from the Head of Gratuity against the pensionery dues of the petitioner. Petitioner has also made a prayer for commanding upon the respondents to count the period of his services under the Bihar State Food and Civil Supplies Corporation Ltd in continuity and accordingly, pay full pension / family pension, gratuity and other post retiral benefits on prorata basis and not to discriminate the petitioner with similarly situated person. Consequently, he has made a prayer that the respondents be directed not to recover the amount of Rs.2,02,805/- from the head of Gratuity. 3. The case of the petitioner in short is that he was appointed in the Bihar State Food and Civil Supplies Corporation Ltd (hereinafter to be referred as 'Corporation') on 5th June 1975 (Annexure-1) as a Lower Division Clerk, whereafter, he joined on 9th June 1975. He continuously served in the Corporation till his services were placed at the disposal of the Deputy Commissioner, Gumla for posting in the District Consumer Forum vide Memo No. 1488 dated 31st March 1997. He accordingly joined in Gumla District Forum on 8th April 1997 on the post of Personal Assistant. According to the petitioner, appointment of the petitioner in the District Consumer Forum from his earlier services under the Corporation was in the nature of absorption, as per the communication contained in Memo No. 1488 dated 31st March 1997 (Annexure-2) issued by the Food, Supply and Commerce Department, Government of Bihar. According to the petitioner, this communication also indicated that the incumbents whose services were placed in different districts forums from erstwhile services of the Corporation were to be given the same scale on which they had left the Corporation. In such circumstances, the petitioner served the District Consumer Forum after his joining on 8th April 1997 and finally, superannuated on 31st March 2009. 4. In such circumstances, the petitioner served the District Consumer Forum after his joining on 8th April 1997 and finally, superannuated on 31st March 2009. 4. Counsel for the petitioner has also referred to the office order contained at Annexure-3 issued by the Corporation which is an order of relieving from the Corporation for being absorbed in the District Consumer Forum in view of the decision taken on 31st March 1997 (Annexure-2) issued by the Department of Food, Supply and Commerce, Government of Bihar. The petitioner's grievance in the present writ application arose as after his superannuation, the office of Accountant General has taken a decision to adjust an amount of Rs. 2,02,805/- from his Gratuity head apparently on the grounds that the services of the petitioner under the Corporation have not been counted for calculating such post retiral benefits like Gratuity. It is further contended on behalf of the counsel for the petitioner that the pension of the petitioner has rightly been fixed in the last pay that he has drawn as, the petitioner was allowed the same pay scale at the time of his absorption in the District Consumer Forum, Gumla after being relieved from the Corporation as such. However, in the matter of gratuity, they have taken a wholly erroneous view by the discounting the earlier services of the petitioner under the Corporation. Learned counsel for the petitioner has relied upon a judgment rendered in the case of Bihar State Non-Gazetted Employees Federation vs. The State of Bihar and others on 1st September 2011 in WPS No. 3285/1998 (R). The said writ application was preferred by the Association, members of which were employed in Bihar State Food and Civil Supplies Corporation. Federation had reason to move the High Court, as while absorbing the services of surplus staff of the Corporation in different departments of the State Government i.e. different District Consumer Forums, salaries of the Members of such Association which they were drawing in the Corporation, was lowered down. In the said writ petition, two questions were framed: i. Whether the petitioner is entitled to same scale which he was drawing while he was employed in the Corporation? ii. Whether the services rendered during employment in the Corporation is to be taken into account for the purpose of pension? 5. In the said writ petition, two questions were framed: i. Whether the petitioner is entitled to same scale which he was drawing while he was employed in the Corporation? ii. Whether the services rendered during employment in the Corporation is to be taken into account for the purpose of pension? 5. Learned Single Bench of this Court by the judgment dated 01st September 2011 held that since it was stipulated in the order contained in Memo No. 1488 dated 31st March 1997 that after absorption, salaries of the employees be fixed to the same scale which the persons who were getting earlier while employed in the Corporation, the State authority cannot now turn back to fix salary less than what the persons of the Association were getting while they were employed in the Corporation. The Court further held that if they were drawing salary in the regular pay scale, the period of service rendered in the Corporation needs to be taken into account for the purpose of pension. Court also referred to the judgment rendered in WPS No. 186/2006 in the case of Suresh Tiwary and others vs. State of Jharkhand and others on this point and accordingly, held that the Members of the Association are entitled to have period of service rendered in the Corporation counted for the purpose of pension. Another judgment of this Court passed in the case of Rama Bahadur Mukhiya vs. State of Jharkhand & others (WPS No. 3756/2012) has been relied upon by the petitioner. In the said case, similar amount of Rs. 2,02,805/0 was shown to be deducted from the said petitioner's gratuity and instead of fixing pension at a particular scale on the basis of last pay drawn, pension was fixed at reduced rate. In such circumstances, it is submitted on behalf of the learned counsel for the petitioner that taking into account the judgment rendered in the case of Bihar State Non-Gazetted Employees Federation (Supra), it was once reiterated that the period of service rendered by the petitioner in the Corporation has to be counted for the purpose of pension. The impugned orders deducting the amount of gratuity from the said petitioner and fixing pension at reduced rate was held to be illegal and accordingly, quashed with a direction to the respondents to issue fresh orders of fixation of pension and gratuity of the said petitioner including consequential order of refund. The impugned orders deducting the amount of gratuity from the said petitioner and fixing pension at reduced rate was held to be illegal and accordingly, quashed with a direction to the respondents to issue fresh orders of fixation of pension and gratuity of the said petitioner including consequential order of refund. In these backgrounds, learned counsel for the petitioner submits that there is no reason why the present petitioner be denied the same relief, as his case is fully identical and covered by the judgment referred to herein above. 6. Counsel for the respondent State, on the other hand, have taken a stand that the erstwhile services of such employees like the petitioner who had worked in the Corporation, could not be counted for the purposes of grant of continuity of service in the matter of pensionery dues as his services in the Corporation were not pensionable. Learned counsel for the State also submits that against the orders passed in the writ petition in a similar case i.e. in the case of Parsuram Choudhary & Others, the State has preferred Letters Patent Appeal being LPA No. 393/2011 which is pending for adjudication before learned Division Bench of this Court. In such circumstances, when the issues are still alive, no such direction should be given in favour of the petitioner. Learned counsel appearing on behalf of the State again submitted that the petitioner's claim for pension benefits could not have been sustained on account of the fact that he had continued in the services of the Corporation where such services are not pensionable. 7. Learned counsel appearing on behalf of the petitioner submits that this issue now no longer remains open in view of the judgment rendered on identical issue raised in the case of similarly situated employees whose services were absorbed in different District Consumer Forum by conscious decision of the State of Bihar vide order dated 31st March 1997. It is further submitted that the Division Bench of this Court in LPA No. 393/2011 has not granted any stay of the impugned order and in fact, has observed that the State may comply with the order, which however is subject to the result of the LPA. The matter has been admitted vide order dated 03rd September 2012, copy of which has also been produced by the counsel for the petitioner. 8. The matter has been admitted vide order dated 03rd September 2012, copy of which has also been produced by the counsel for the petitioner. 8. It is further submitted on behalf of the learned counsel for the petitioner that the orders passed by the learned Single Benches of this Court have been complied with in some of the cases in the district of Chatra and Giridih and in some cases, it is in the process of being complied. 9. I have heard counsel for the parties at length and gone through the relevant materials on record. The only issue in the present writ application is, whether respondents are entitled to discount the services of the persons like the petitioner whose services were absorbed in different District Consumer Forums by considered decision of the State of Bihar dated 31st March 1997 (Annexure-2). It is not in dispute that these employees including the petitioner were in the services of the Corporation before 1997. This petitioner had joined the Corporation on 9th June 1995 as a Lower Division Clerk. The decision contained at Annexure-2 also shows that the employees like the petitioner who were absorbed in the District Consumer Forum in various districts of erstwhile State of Bihar, now also falling within the State of Jharkhand, were to be granted the same salary as they were drawing lastly under the Corporation. It also appears that after their appointment, services of these employees including the petitioner were absorbed in the District Consumer Forum. 10. In any case, the issue had earlier been raised before this Court on behalf of Bihar State Non-Gazetted Employees Federation (Supra) whose services were absorbed in the State of Bihar in different District Consumer Forum. The question raised in the said writ application was related to reduction of pay scale of such employees who were absorbed in different District Consumer Forums as Personal Assistant, from what they were drawing under the Corporation. Another question which was considered by the learned Single Bench of this Court was, whether the services rendered during employment in the Corporation is to be taken into account for the purpose of pension. Another question which was considered by the learned Single Bench of this Court was, whether the services rendered during employment in the Corporation is to be taken into account for the purpose of pension. Both the issues were decided in favour of the petitioner Federation and it was held that the salary of such incumbents who had been absorbed in different District Consumer Forum, could not be reduced from what they were drawing while they were employed in the Corporation in view of the condition stipulated in the order dated 31st March 1997 (Annexure-2). On the second question, learned Single Bench of this Court held that the Members of the Association are entitled to have the period of service rendered in the Corporation counted for the purpose of pension. The petitioner is one of such employees whose services were also absorbed in the District Consumer Forum, Gumla after being relieved from the Corporation by the decision dated 31st March 1997 taken by the Bihar State Food and Civil Supplies Department, Government of Bihar. 11. In similar circumstances, in the case of Ram Bahadur Mukhiya (Supra), where a sum of Rs. 2,02,805/- was deducted from the gratuity and pension was fixed at reduced rate, the learned Single Bench of this Court held the action of the respondents to be illegal and arbitrary and accordingly, the said adjustment and reduction of pension at lower rate was quashed. The learned Single Bench also took into account the judgment rendered in the case of Bihar State Non-Gazetted Employees Federation (Supra) and directed the respondents to issue fresh orders of fixation of the petitioner's pension and gratuity. The interim order passed in LPA No. 393/2011 which has been referred to by the learned State counsel however shows that the matter has been admitted without granting any stay of the impugned order. Moreover, it has been observed in the interim order dated 03rd September 2012 passed in the said LPA that the State may comply with order, however payment shall be subject to the result of the LPA. 12. In the aforesaid facts and circumstances therefore, it appears that the petitioner's case also falls in the same category as the petitioner in the judgment referred to herein above. 12. In the aforesaid facts and circumstances therefore, it appears that the petitioner's case also falls in the same category as the petitioner in the judgment referred to herein above. Therefore, there is no occasion to make departure from the judgment what has been rendered in the case of Ram Bahadur Mukhiya (Supra) whose case appears to be exactly similar. In the aforesaid background, the impugned order of deduction of gratuity amount of Rs. 2,02,805/- vide Notification No. GMLCSP057 and GPO No. 1395/2010 dated 11th November 2010 issued by the office of Accountant General, cannot be sustained in law and the same is hereby quashed. Respondents are directed to issue fresh orders for fixation of pension and gratuity of the petitioner and consequential order of refund of the amount. Writ petition is allowed in the aforesaid terms.