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2014 DIGILAW 309 (PAT)

Tapeshwar Prasad v. State of Bihar

2014-03-04

HEMANT KUMAR SRIVASTAVA

body2014
ORDER Petitioner has filed this writ petition under Article 226 of the Constitution of India for issuance of direction to the respondents to make payment of balance amount of contributory provident fund for deputation period, to make payment of balance amount of gratuity for deputation period, to make payment of balance amount of unutilized earned leave salary for 101 days, to make payment of arrear of monthly salary from August, 2006 to 20.11.2006 and to pay panel and statutory interest for delayed payment of legitimate claim of the petitioner. 2. Petitioner was appointed as assistant on 17.07.1974 in the Bihar State Industrial Development Corporation and while he was working in the aforesaid Corporation on the post of accounts assistant, he was transferred/ deputed in the account section of Industries department, State of Bihar vide memo. no. 778 dated 27.01.1998 and he worked on deputation in Industries department from 28.02.1998 to 31.07.2006. During the period of deputation, the State Government took a decision on 16.05.2002 that whoever has been deputed in Industries department of State Government under various undertakings prior to 16th November, 1999, their fate will be decided by Economic committee. 3. It is the case of petitioner that people similarly, situated to that of the petitioner were absorbed permanently in the Industries department of State Government but the petitioner was not intimated as to what decision was taken in relation to him and thereafter, he preferred CWJC no.5914/2006 and the aforesaid CWJC no.5914/2006 was disposed of by a bench of this court vide order dated 20.07.2006 directing the respondents to consider and decide the case of the petitioner in the light of the decision of the Government and in the light of order dated 16.05.2002 and furthermore, a bench of this court observed that until decision is taken in terms of the above stated order, petitioner shall continue to serve in the same fashion even after crossing the age of 58 years. The concerned respondent did not take any decision and in the meantime, petitioner being age of 58 years attained age of superannuation on 31.07.2006 and superannuated from service but no order of superannuation was communicated to him and accordingly, he continued in service from August, 2006 to 20.11.2006 in light of order dated 20.07.2006 passed by this court in CWJC no.5914/2006. 4. 4. It is further case of the petitioner that when he was on deputation, he deposited 12 % amount of basic salary + D.A and I.R to the Corporation in his share towards CPF but the above stated Corporation did not deposit its contribution towards CPF between 27.02.1998 to 31.07.2006. 5. The Chief Personnel officer of the Corporation wrote a letter to the Principal Secretary, Industries department, Govt. of Bihar, Patna on 31.07.2009 requesting to consider for making the payment of amount of gratuity, leave encashment of the petitioner for deputation period by Industries department, Govt. of Bihar which is evident from annexure 3 to the petition. 6. It is further case of the petitioner that said Corporation paid amount of unutilized earned leave only to the extent of 199 days and amount of unutilized earned leave of 101 days was neither paid by the Corporation nor the Industries department. Similarly, arrear of salary from August, 2006 to 20.11.2006 was also not paid to the petitioner by Industries department and amount of CPF for deputation period was also not paid to him. It is further case of the petitioner that when his above stated retiral dues were not paid, he filed CWJC no.2899/2010 before this court and a bench of this court disposed of the aforesaid CWJC no.2899/2010 vide order dated 19.02.2010 directing the petitioner to file representation before the respondents stating details of unpaid claim within a period of six weeks and if representation is filed on behalf of the petitioner, respondents shall consider each of the claims raised by the petitioner in his representation in accordance with law expeditiously preferably, within a period of four months on receipt of the said representation so-that grievance of the petitioner could be settled without delay and necessary order could also be passed for payment of admitted dues. 7. In the light of direction of this court, petitioner filed representation raising his grievance before respondent no. 3 who disposed of representation petition vide order dated 02.06.2010 observing that claims regarding payment of contributory fund, grant of second time bond promotion and payment of T.A are related with the Corporation and so far as claims of earned leave and gratuity for deputation period are concerned, the same are not admissible to the petitioner because he was not employee of State Government and the aforesaid claim can be raised before the Corporation. Similarly, claim for payment of salary of the petitioner from 01.08.2006 to 20.11.2006 was also refused on the ground that the petitioner was repatriated from Industries department vide letter no 1643 dated 26.07.2006 and after repatriation, he fraudulently made his presence on absentee register for the above stated period. 8. Petitioner filed MJC no.4534/2010 on the ground of non-compliance of order dated 19.02.2010 passed in CWJC no.2899/2010 and the aforesaid MJC no.4534/2010 was disposed of because of the fact that cheque no. 44589 dated 20.03.2013 for sum of Rs 70, 479/- in respect of payment of unutilized earned leave for 199 days was produced on behalf of the Corporation and in respect of remaining grievances, petitioner agreed to take appropriate recourse and after disposal of the aforesaid MJC no.4534/2010, petitioner again filed this writ petition before this court. 9. Counter affidavit has been filed on behalf of the respondent nos.2 and 3 in which it has been averred that the present writ petition is not maintainable as earlier for the same relief, writ petition filed on behalf of the petitioner had already been disposed of and furthermore, it has been averred that deputation of the petitioner in the Industries department was accepted with condition that the petitioner will draw his salary and other allowances from Corporation but later on, on the request of the Corporation, Industries department agreed to pay salary and other allowances as admissible to him in Corporation and thereafter, Industries department made payment of salary of the petitioner for the period from 28.02.1998 to 26.07.2006. It has further been averred that deputation of the petitioner was cancelled vide letter dated 26.07.2006 and service of the petitioner was returned to his parents cadre fromwhere he was superannuated from service on 31.07.2006 and nothing is due against Industries department and so far as arrear of salary from August, 2006 to 20.11.2006 is concerned, petitioner fraudulently got signed absentee and other documents. 10. 10. Counter affidavit has also been filed on behalf of the respondent no.4 who took stand that payment of contributory provident fund during the deputation period is liability of Industries department and, as a matter of fact, the Corporation has not received petitioner’s contribution while he was on deputation in Industries department and so far as payment of gratuity is concerned, the same has already been paid to the petitioner and calculation given by the petitioner in respect of his gratuity amount is totally wrong because he has calculated the amount of gratuity on the basis of the last pay drawn by him from Industries department whereas admittedly, petitioner was employee of the Corporation and amount of gratuity of the petitioner will be calculated on the basis of the pay scale for which petitioner was entitled, if he would have been working in the Corporation. Similarly, it has been mentioned in counter affidavit that total earned leave of the petitioner was counted 287 days but till 27.02.1998, petitioner has earned 199 days leave that was the reason Rs 70, 479/- was paid by the Corporation to the petitioner under the head of earned leave for 199 days and Corporation is not responsible for making payment of earned leave for the period of deputation of the petitioner. Furthermore, it has been averred in the counter affidavit that Corporation was not liable to deposit its contribution for contributory provident fund for the period 27.02.1998 to 31.07.2006 when petitioner was on deputation in Industries department, Govt. of Bihar and, accordingly, the Corporation denied its liability for making payment to the petitioner. 11. Learned counsel appearing for the petitioner submits that balance amount of contributory provident fund for deputation period has not been paid to the petitioner and it is not in dispute that petitioner deposited his share in contributory provident fund but Industries department of Govt. of Bihar as well as the Bihar State Industrial Development Corporation are shifting their liability to each others in making payment of employer’s share in respect of contributory provident fund. Similarly, Industries department as well as concerned Corporation are shifting their liability in making payment of balance amount of gratuity as well as amount of unutilized earned leave salary for 101 days for deputation period. Similarly, Industries department as well as concerned Corporation are shifting their liability in making payment of balance amount of gratuity as well as amount of unutilized earned leave salary for 101 days for deputation period. He further submits that no order of cancellation of his deputation was communicated to him and he worked in Industries department till 20.11.2006 in the light of order of this court and, therefore, it can not be said that petitioner played any fraud. He continued in service even after his superannuation and therefore, he is entitled to get salary for the period from August, 2006 to 20.11.2006. He also submits that the petitioner is also entitled for statutory interest as well as panel interest for delayed payment. 12. Learned counsel appearing for respondent nos. 2 and 3 submits that the present writ petition is not maintainable as dispute between the parties had already been settled by this court in earlier writ petition and MJC filed on behalf of the petitioner. He further submits that petitioner was not an employee of Industries department, Govt. of Bihar and Industries department, Govt. of Bihar was only liable to pay salary and other allowances for deputation period and same had already been paid to the petitioner. He further submits that deputation of the petitioner was cancelled vide letter dated 26.07.2006 and after 26.07.2006, there was no relation of employee and employer between the petitioner and Industries department, Govt. of Bihar and therefore, Industries department, Govt. of Bihar is not liable to pay any salary after 26.7.2006. He also submits that moreover, petitioner got signed some documents playing fraud. Therefore, he is not entitled to get any salary from Industries department after 26.7.2006. In support of his contention, he refers a decision reported in 1998 (I) PLJR page 628 in which it has been held by Hon’ble single Judge of this court that if a person remains in service beyond the date of superannuation by playing a fraud, then he is not entitled to salary as he has worked beyond the period of his superannuation. Another decision cited by learned counsel appearing for the respondent nos. Another decision cited by learned counsel appearing for the respondent nos. 2 and 3 is 2011 (I) PLJR page 208 in which it has been held by Hon’ble single bench of this court at para 6 of the judgment as follows:– “A stand is taken by the petitioner that he should be actually paid for the period he had worked and the recovery made by the respondents for the extended period of his retirement ought not to be allowed. But this stand would have merited consideration provided the petitioner continued on the post due to some omission on the part of the respondents and was allowed to work on the post after the date of his actual retirement. But it is case of fraud having been played by the petitioner for which he can not be rewarded or awarded by stoppage of recovery of the amount for the period he continued in service beyond the actual date of superannuation which is 31.8.93. It is well established principle that the fraudulent act goes to the root of the matter and equity can not flow in favour of the petitioner. This Court is not inclined to interfere with the action taken against the petitioner in this regard. The petitioner would be treated to have retired on 31.8.93 for the purpose of his retiral benefits etc. and the same will accrue only from that period.” 13. Learned counsel appearing for the respondent no. 4 submits that petitioner worked in Industries department from 28.02.1998 to 31.07.2006 and therefore, whatever due of the petitioner accrued between the aforesaid period, it is the Industries department who will pay dues of the petitioner for the above stated period. He further submits that admittedly, respondent no.4 has already made payment of earned leave of 199 days which had accrued to the petitioner while he was working in Corporation and remaining days of unutilized earned leave accrued to the petitioner while he was working in Industries department and therefore, for making payment of remaining earned leave, respondent no. 4 is not liable. He further submits that petitioner deposited his share in contributory provident fund while he was on deputation and therefore, it is the liability of Industries department to pay employer share and respondent no. 4 is not responsible for making payment of employer share towards contributory provident fund during deputation period. 14. 4 is not liable. He further submits that petitioner deposited his share in contributory provident fund while he was on deputation and therefore, it is the liability of Industries department to pay employer share and respondent no. 4 is not responsible for making payment of employer share towards contributory provident fund during deputation period. 14. Certain facts are admitted in this case. It is an admitted position that petitioner was appointed as assistant on 17.07.1974 and later on, he was deputed in Industries department, Govt. of Bihar vide memo no.778 dated 27.01.1998 and thereafter, he started working in Industries department, Govt. of Bihar since 28.02.1998. It is also admitted position that date of superannuation of petitioner was 31.07.2006 but according to the petitioner, he worked in Industries department, Govt. of Bihar till 20.11.2006 whereas stand of respondent nos. 2 and 3 is that deputation of the petitioner was cancelled on 26.07.2006. 15. It is also not in dispute that the petitioner contributed his share towards contributory provident fund while he was on deputation. The controversy in the present matter is that who is liable to pay employer share towards contributory provident fund. The stand of respondent nos. 2 and 3 is that petitioner was employee of Corporation and therefore, Corporation was liable to contribute employer share towards contributory provident fund and the stand of respondent no. 4 is that since petitioner deposited his share towards contributory provident fund while he was on deputation, Industries department was liable to deposit employer share towards contributory provident fund. 16. Admittedly, petitioner was not an employee of State of Bihar and he was working in the Industries department, Govt. of Bihar on deputation basis and therefore, it was the duty of respondent no. 4 (Corporation) to deposit employer share towards contributory provident fund. 17. Admittedly, respondent no. 4 had already paid amount of unutilized earned leave for 199 days and furthermore, it is admitted position that 287 days of earned leave was counted in the account of the petitioner. It is also an admitted position that amount of unutilized earned leave for 101 days has not been paid to the petitioner. 18. It would appear that respondent no. 4 has taken stand that the above stated 101 days earned leave was accrued to the petitioner while he was on deputation. It is also an admitted position that amount of unutilized earned leave for 101 days has not been paid to the petitioner. 18. It would appear that respondent no. 4 has taken stand that the above stated 101 days earned leave was accrued to the petitioner while he was on deputation. In this regard, annexures 7 and 8 of the reply to counter affidavit of respondent nos. 2 and 3 filed on behalf of the petitioner reveals that at the time of deputation, it was observed in the deputation order dated 27.01.1998 that salary and other allowances of the petitioner will be paid by the Bihar State Industrial Development Corporation but again, vide annexure 8, the State Government agreed to pay salary and other allowances of the petitioner vide memo no. 40/3 dated 16.05.2002 with rider that withdrawal of salary and other allowances from State Government shall not make entitled to the petitioner to be treated as Government’s employee. Therefore, it is apparent from the above stated annexure 8 that State Government only acknowledged his liablity to pay salary and other allowances to the petitioner during his deputation period. 19. Earned leave does not come under the purview of salary and other allowances rather earned leave comes under the category of leave which accrues to the employee during his service period. Therefore, in the light of annexure 8 to the reply to counter affidavit, it is obvious that State Government is not liable to pay the amount of earned leave which has accrued to the petitioner during his entire service period and respondent no. 4 is liable to make payment of amount of earned leave even the said earned leave accrued to the petitioner while he was working on deputation. 20. Similarly, payment of gratuity is concerned, the same is also made to an employee by his employer and in the present case, admittedly, petitioner was employee of Corporation and he was not employee of State Government and therefore, it is the duty of Corporation to make payment of amount of gratuity to the petitioner. 21. Now, question arises as to whether petitioner is entitled for arrears salary for the period August, 2006 to 20.11.2006 or not. 21. Now, question arises as to whether petitioner is entitled for arrears salary for the period August, 2006 to 20.11.2006 or not. Admittedly, date of superannuation of the petitioner was 31.07.2006 and prior to his superannuation, he filed CWJC no.5914/2006 which was disposed of by a bench of this court vide order dated 20.07.2006 directing the concerned respondent to consider and decide the case of the petitioner in the light of order dated 16.05.2002 which was annexed as annexure 2 to the aforesaid writ petition and furthermore, it was observed by the above stated bench of this court in order dated 20.07.2006 passed in CWJC no.5914/2006 that until such decision is taken in terms of the said order, petitioner shall continue to serve in the same fashion even after crossing the age of 58 years. 22. The case of the petitioner is that he worked in Industries department till 20.11.2006 in the light of the above stated order of this court and no order of cancellation of his deputation was served upon him. There is nothing on record to show that order of cancellation of deputation of the petitioner was ever served upon the petitioner and annexure 6 to the main writ petition reveals that the petitioner worked in Industries department, Govt. of Bihar till 20.11.2006. Furthermore, there is nothing on record to show that the petitioner played a fraud and on the basis of the aforesaid fraud, he continued in service even after repatriation from Industries department, Govt. of Bihar. 23. No doubt, annexure A and annexure B to the counter affidavit filed on behalf of the respondent nos. 2 and 3 reveal that when it came to the notice of the Director, Industries department, Govt. of Bihar, Patna that the petitioner was still working, he issued show cause notice to concerned official and thereafter, concerned official made allegation against the petitioner that he continued in service by playing a fraud but the aforesaid annexures A and B, at least, confirm this fact that even after issuance of cancellation letter dated 26.07.2006, petitioner was working in Industries department, Govt. of Bihar and there is nothing on entire record to show that any fraud was played by the petitioner for his continuous service in Industries department, Govt. of Bihar. Furthermore, annexure 6 to the writ petition reveals that the petitioner worked in Industries department even after date of his superannuation. of Bihar and there is nothing on entire record to show that any fraud was played by the petitioner for his continuous service in Industries department, Govt. of Bihar. Furthermore, annexure 6 to the writ petition reveals that the petitioner worked in Industries department even after date of his superannuation. 24. It appears to me that the petitioner continued in service even after date of his superannuation in the light of order of this court passed on 20.07.2006 in CWJC no.5914/2006. Therefore, in my view, petitioner is entitled to get salary from August, 2006 to 20.11.2006. 25. So far as maintainability of this writ petition is concerned, it has been argued on behalf of the respondents that earlier petitioner filed CWJC no.2899/2010 for the same relief and the above stated writ petition was disposed of by a bench of this court vide order dated 19.02.2010 with liberty to the petitioner to file fresh representation in respect of his unpaid claims and the concerned authority should dispose of the aforesaid representation in accordance with rule expeditiously. It is further argued on behalf of the respondents that after disposal of the aforesaid writ petition, petitioner filed MJC no.4534/2010 and in course of hearing of the aforesaid MJC no.4534/2010, a cheque amounting to Rs 70, 479/- was produced on behalf of the Corporation towards payment of unutilized earned leave for 199 days and after that aforesaid MJC no.4534/2010 was disposed of by a bench of this court vide order dated 20.03.2013 and therefore, petitioner has got no right to raise similar issue in this writ petition and the writ petition of the petitioner is barred by principle of res judicata. 26. No doubt, after disposal of CWJC no.2899/2010, petitioner preferred MJC no.4534/2010 which was disposed of by a bench of this court vide order dated 20.03.2013 but admittedly, at the time of disposal of MJC no.4534/2010, it was argued on behalf of the petitioner that petitioner reserved his right to take appropriate recourse for redressal of his unsettled grievance and after taking into consideration the above stated submission, MJC no.4534/2010 was disposed of by a bench of this court. Therefore, in my view, it can not be said that petitioner has got no right to raise his grievance by filing another writ petition. Therefore, in my view, it can not be said that petitioner has got no right to raise his grievance by filing another writ petition. Moreover, MJC no.4534/2010 was filed by the petitioner for initiation of contempt proceeding against the respondents for violation of court’s order and a bench of this court, having considered the materials, disposed of MJC no.4534/2010. In my view, mere disposal of MJC no.4534/2010 does not bar the petitioner to raise his grievance in respect of his unsettled dues and therefore, I am of the opinion that this writ petition is maintainable. 27. On the basis of the aforesaid discussions, this writ petition stands disposed of with liberty to the petitioner to file fresh representation before respondent no. 3 within one month from today for claiming his salary for the period from August, 2006 to 20.11.2006 and if he does so, respondent no. 3 shall ensure payment of arrears salary of the petitioner for the above stated period within four months from the date of fling of representation petition and similarly, petitioner is also granted liberty to make representation before respondent no. 4 claiming his grievance regarding payment of balance amount of gratuity for deputation period, balance amount of unutilized earned leave for 101 days and payment of balance amount of contributory provident fund for deputation period and if he does so, respondent no. 4 shall ensure payment of the above stated dues of the petitioner within four months from the date of fling representation petition. ?