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2015 DIGILAW 67 (JHR)

Brajesh Kumar v. State of Jharkhand

2015-01-15

SUJIT NARAYAN PRASAD

body2015
ORDER : The writ petitioner has filed the instant writ petition praying, inter alia, therein :- (i) For a direction upon the respondents to fix and pay the pension and other retiral benefits on the basis of last pay drawn i.e. Rs.21,900/- which was payable to the petitioner as on 28.2.2004. (ii) For issuance of direction to pay the arrears of salary from 18.11.2000 to 28.2.2004. (iii) To pay interest on the provident fund amount from 1.9.2004 to 31.1.2007 as also to pay the additional interest @ 5% in terms of circular no. P.C.-2-1-16/79/3155 dated 7.11.1981. (iv) For payment of interest on the group insurance deposit from 28.2.2004 to 7.6.2008. 2. Heard the parties and perused the documents on record. 3. For deciding the issue it is necessary to briefly state the facts of the case of the petitioner. The petitioner was appointed as an Assistant Professor, Humanities on 30th May, 1968, joined in the Government Polytechnic, Gulzarbagh, Patna. He was promoted to the post of Associate Professor vide notification dated 20th January, 1990, as contained in notification no.178 with retrospective effect from 7.6.1981. He was further promoted as Professor vide notification dated 27th February, 1992 as contained in notification no.204 with retrospective effect from 1.2.1985. 4. The petitioner was transferred as Professor in Bihar Institute of Technology, at Sindri vide notification issued in this regard on 4th September, 1995. Accordingly, the petitioner joined his place of posting on 18th September, 1995. 5. On one pretext or the other, salary of the petitioner was stopped w.e.f. 3rd February, 1997 by the Director, BIT, Sindri. When the salary of the petitioner was withheld vide order dated 11.7.1997, the petitioner had preferred a writ petition being C.W.J.C. No. 68430/1997 which was disposed of vide order dated 13.1.1998 by giving liberty to the petitioner to file a detailed representation before the respondent no.1 within two months in the light of the observations made in the order. 6. The petitioner made due representation in terms of order passed on 13.1.1998 in C.W.J.C. No.68430/1997 and an order was passed by the Department of Science and Technology on 3rd August, 1998 as contained in order no.11 by which the withheld salary of the petitioner was ordered to be released. It was also observed that enquiry will be conducted against the petitioner with respect to the allegation leveled against him. 7. It was also observed that enquiry will be conducted against the petitioner with respect to the allegation leveled against him. 7. After bifurcation of the State, the petitioner was finally allocated the cadre for State of Jharkhand. The petitioner made due representation in terms of Section 75(b) of the Bihar Reorganization Act, 2000 which was directed to be disposed of vide order dated 25th February, 2003 passed in C.W.J.C. No.1842 of 2003 by which the petitioner requested for his transfer from B.I.T. Sindri to any other Polytechnic Institute. While the case of the petitioner was pending, the petitioner applied for his voluntary retirement vide his letter dated 3rd April, 2003 under Rule 74(b) of the Service Code and conveyed his intention to retire w.e.f. 28.2.2004. 8. When the request of the petitioner was under consideration, the Accountant General, Bihar issued his pay/leave salary slip on 16th February, 2004 for payment of his salary from 1.2.1999. The petitioner has also claimed his entire retiral benefits and arrears of salary on account of his voluntary retirement w.e.f. 28th February, 2004. 9. In the meantime, the authorities of the State of Jharkhand issued two orders: one of dated 16th July, 2004 by which the petitioner was served with a charge-sheet and other of dated 19th July, 2004 placing the petitioner under suspension. 10. The petitioner preferred another writ petition being W.P.(S) No.3079 of 2004 praying therein to make payment of retiral benefits w.e.f. 1.3.2004 and to release all retiral dues including gratuity, GPF, group insurance, etc. This Court after passing the reasoned order dated 25.9.2006 and after considering all aspects of the matter came to a finding that the orders dated 16th July, 2004 and 19th July, 2004 are redundant and of no consequence being without jurisdiction and nonest in the eyes of law and, accordingly, the writ petition was allowed directing the petitioner deemed to have been retired on 28th February, 2004 with a direction to the authorities to settle the claim of the retiral benefits of the petitioner taking into account his voluntary retirement w.e.f. 28.2.2004 and pay all such dues within a period of three months with statutory interest. 11. When the grievance of the petitioner was not redressed, he filed a contempt petition before this Court being Cont. 11. When the grievance of the petitioner was not redressed, he filed a contempt petition before this Court being Cont. Case (Civil) No.682/2007 and the same was dismissed after making substantial payment, but the pension was not fixed on the basis of the date of retirement as has been held to be with effect from 28.2.2004 by learned Single Judge of this Court in W.P.(S) No.3079/2004, rather the retiral dues was fixed on the basis of the pay scale which the petitioner had drawn on 17.11.2000 i.e. at the basic pay of Rs.20,000/-. Hence, grievance of the petitioner is that since the date of retirement has been held to be w.e.f. 28.2.2004 and as such, the pension ought to have been fixed on the basis of the pay scale which the petitioner was entitled to get as on 28.2.2004. 12. Accordingly, the petitioner also prayed for payment of salary from 18.11.2000 to 28.2.2004 and other consequential benefits thereof. 13. Learned counsel for the respondents-State of Jharkhand as well as Accountant General has taken a common plea while contesting case of the petitioner by way of filing counter affidavit stating therein that the petitioner was unauthorisedly absent from 18.11.2000 to 28.2.2004 and, as such, the pension was fixed on the basis of the pay scale which the petitioner had withdrawn as on 17.11.2000 i.e. the basic pay of Rs.20,000/- and on the basis of the said pay scale all retiral dues has already been paid. 14. Further submission has been made on behalf of the respondents that the petitioner had filed contempt case in which the petitioner had made specific plea that he is not claiming salary for the period from 18.11.2000 to 28.2.2004 and if the petitioner thereafter earns any leave during this period, the petitioner is not claiming that also but the petitioner is entitled to encashment of earned leave prior to 18.11.2000. 15. Further the petitioner is also not entitled to get salary because he himself has given statement/ undertaking before the contempt Court in Cont. Case (Civil) No.682/2007 which is being quoted herein below :- “Mr. 15. Further the petitioner is also not entitled to get salary because he himself has given statement/ undertaking before the contempt Court in Cont. Case (Civil) No.682/2007 which is being quoted herein below :- “Mr. Mehta further submitted that petitioner is not claiming salary for the period from 18.11.2000 to 28.2.2004 and if the petitioner would have earned any leave during this period, petitioner is not claiming that also, but the petitioner is entitled to encashment of leave earned prior to 18.11.2000, and therefore, the respondents cannot adjust his earned leave/half pay leave against the said period of absence.” 16. Thus, on the basis of this undertaking the authorities have acted upon and passed the order dated 16.4.2009. Hence, the petitioner cannot claim the salary for the period from 18.11.2000 to 28.2.2004 17. The contention of the respondents that the petitioner has filed a contempt petition which has been dismissed, hence this writ petition is not maintainable. 18. This contention of respondents cannot be accepted in view of liberty to take recourse to any other remedy that may be available under the law. In terms of this liberty, this writ petition has been filed and, as such, it cannot be said that this writ petition is not maintainable. 19. The petitioner, during the said period of absence, made application on 03.4.2003 for his separation from service under the provision of Rule 74(b) of the Service Code. 20. The respondents issued memorandum of charge to the petitioner vide order dated 16.7.2004 for his unauthorized absence and for not discharging his duty. The petitioner was put under suspension vide order dated 19.7.2004 for his unauthorized absence. When the authorities took no decision in terms of application of separation filed by the petitioner under Section 74(b) of the Service Code, the petitioner filed writ petition being W.P.(S) No.3079/2004 for issuance of declaration to treat the petitioner retired from service w.e.f. 28.2.2004. 21. During pendency of the writ petition only the orders dated 16.7.2004 and 19.7.2004 were issued which were challenged by the petitioner by way of filing I.A. in W.P.(S) No.3079/2004 which was allowed. 22. 21. During pendency of the writ petition only the orders dated 16.7.2004 and 19.7.2004 were issued which were challenged by the petitioner by way of filing I.A. in W.P.(S) No.3079/2004 which was allowed. 22. Learned Single Judge of this Court while deciding W.P.(S) No.3079/2004 came to a finding regarding the unauthorized absence of the petitioner which is being reproduced herein below :- “The contention of the respondents is that the petitioner remained absent from 1995 onwards, hence the period of absence is to be excluded while calculating the total service of the petitioner. Admittedly, no disciplinary proceedings had been initiated against the petitioner from 1995 till 16th of July, 2004. There is no finding of absence from duty by any competent authority. Apart from above, in the year 2000 a cadre bifurcation statement was prepared in respect to the petitioner along with others and forwarded to the competent authority. There was a specific column no.12, whereunder it was required to be indicated whether the employee is “untraceable, absconding or retired after 14th of November, 2000 or dead”. This statement was prepared on 9th of August, 2002. Petitioner's name figures at serial no. 35 (Annexure - 9) and no remark is made in Column 12, meaning thereby that he was not absent or absconding till then.” “In view of the above circumstances, the plea of respondents that the petitioner was absent from 1995 is of no consequence. In view of my finding that Rule 74 B envisage automatic acceptance of the voluntary retirement on the expiry of three months period or on the date specified in the notice, petitioner is deemed to have retired on 28th of February, 2004. Any action initiated thereafter vide memo dated 16th of July, 2004 and 18th of July, 2004 is redundant and of no consequence.” “In view of the clear legal position, orders dated 16th of July, 2004 and 19th of July, 2004 are illegal, without jurisdiction and non-est in the eyes of law. This writ petition, accordingly, succeeds and respondents are directed to settle the claim of the retiral benefits of the petitioner taking into account his voluntary retirement with effect from 28th of February, 2004 and pay all such dues within a period of three months with statutory interest wherever applicable.” 23. This writ petition, accordingly, succeeds and respondents are directed to settle the claim of the retiral benefits of the petitioner taking into account his voluntary retirement with effect from 28th of February, 2004 and pay all such dues within a period of three months with statutory interest wherever applicable.” 23. Thus, learned Single Judge of this Court has been pleased to hold that the petitioner will retire from service w.e.f. 28.2.2004 and, accordingly, the authorities have been directed to settle the claim taking into account his voluntary retirement w.e.f. 28.2.2004. 24. The office of the Accountant General, although, has issued pay/leave salary slip dated 16.2.2004 fixing the pay scale of the petitioner on the basis of the pay scale of Rs.21,900/-which was payable to the petitioner as on 28.2.2004, but since the petitioner was Drawing and Disbursing Officer and by that time when the pay slip reached the office, the petitioner stood superannuated from service w.e.f. 28.2.2004 and, as such, he has not withdrawn the said salary in terms of the pay slip issued on 16.2.2004, but the pay slip has been issued fixing the pay scale of the petitioner on the basis of the pay scale of Rs.21,900/-. 25. The contention of the respondents that the pension which has been fixed to the petitioner on the basis of the last pay drawn by him as on 17.11.2000 i.e. the basic pay of Rs.20,000/-, cannot be acceptable in view of the following facts : (i) Admittedly, the petitioner has been directed to retire w.e.f. 28.2.2004 and, as such, the petitioner is entitled to get the pay scale which he was entitled to get as on 28.2.2004 which was 21,900/-. (ii) The reason given by the respondents that the petitioner was unauthorizedly absent from 18.11.2000 to 28.2.2004 can also not be accepted in view of the clear-cut finding of this Court in W.P.(S) No.3079/2004, as quoted herein above to the effect that he was not absent or absconder for the said period. (iii) The reason given by the respondents in the counter affidavit with respect to the unauthorized absence from 18.11.2000 to 28.2.2004 is absolutely contrary to the finding given by the learned Single Judge of this Court in W.P.(S) No.3079/2004. (iii) The reason given by the respondents in the counter affidavit with respect to the unauthorized absence from 18.11.2000 to 28.2.2004 is absolutely contrary to the finding given by the learned Single Judge of this Court in W.P.(S) No.3079/2004. (iv) The office of the Accountant General has also issued pay/leave salary slip fixing the pay scale of the petitioner which he was entitled to get as on 28.2.2004 i.e. the pay scale of Rs.21,900/-. Admittedly, the office of the Accountant General has issued the pay slip on 16.2.2004. 26. The respondent-State has also passed an order on 16.4.2009 which is Annexure-C to the supplementary counter affidavit filed on behalf of the respondent no.2 and the period from 18.11.2000 to 28.2.2004 has been regularised by adjusting the said period from earned leave/half pay/leave without pay, etc. This order suggests that the respondent has accepted that the petitioner was not in unauthorized absence and it was treated on duty. 27. On the basis of the facts and reasons stated herein above, prayer of the petitioner regarding fixation of his pension on the basis of the last pay drawn as on 28.2.2004 i.e. on the basis of pay scale of Rs.21,900/-is just and proper and, as such, the same is allowed with a direction to the authorities concerned to fix pension of the petitioner on the basis of the pay scale of Rs.21,900/-and accordingly release the arrears of difference of pensionary benefits. 28. So far as the relief's sought for by the petitioner regarding payment of arrears of salary for the period from 18.11.2000 to 28.2.2004, the same cannot be allowed in view of the order dated 16.4.2009 by which the period from 18.11.2000 to 28.2.2004 has already been regularized by adjusting with encashment of earned leave, half pay, leave without pay, etc. The petitioner has not challenged the said order dated 16.4.2009, in terms of which the office of the Accountant General has also acted and the period has been regularised by adjusting it from earned leave, half pay and leave without pay vide order dated 21.8.2009 which is Annexure-D to the supplementary counter affidavit filed on behalf of the respondent no.2. 29. 29. Regarding payment of interest over the delayed payment of G.P.F. and group insurance, the petitioner is being given liberty to approach the authorities concerned by way of filing proper representation in this regard and if rule permits, the consequential amount of interest may be released within a reasonable period. 30. With the above directions, this writ petition stands disposed of.