Manoj Kumar vs The State Of Jharkhand
2021 Latest Caselaw 1007 Jhar

                                               1                    [W.P.(S) No. 6079 of 2016]




            IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No. 6079 of 2016

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Manoj Kumar, aged 38, son of late Kameshwar Prasad, residing at Village- Tanti, PO-Tehra Bali, PS-Paraiya, Dist.-Gaya(Bihar)..... Petitioner

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1.The State of Jharkhand, through its Secretary, Urban Development Department, Project Building, Dhurwa, PO Dhurwa, PS Jagannathpur, District-Ranchi

2.Municipal Commissioner, Dhanbad Municipal Corporation, Bank More, Dhanbad, PO Dhanbad, PS Bank More(Dhanbad), District-Dhanbad

3.Executive Officer, Dhanbad Municipal Corporation, Dhanbad, PO Dhanbad, PS Bank More(Dhanbad), District-Dhanbad... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Rajendra Prasad, Advocate For Resp.-State :- Mr. Manoj Kumar, Advocate For Resp.Nos.2-3 :- Mr. Vipul Poddar, Advocate

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10/01.03.2021 Heard Mr. Rajendra Prasad, the learned counsel for the petitioner, Mr.Manoj Kumar, the learned counsel for the respondent State and Mr. Vipul Poddar, the learned counsel appearing for the respondent nos. 2 and 3.

2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

3. The petitioner has preferred this writ petition for direction upon the respondents to pay the gratuity with statutory compound interest @ 9% as per the Payment of Gratuity Act. The petitioner has also prayed for grant of ACP.

4. Mr. Rajendra Prasad, the learned counsel for the petitioner at the outset submits that now everything has been paid to the petitioner except, the pension and the ACP. He submits that during pendency of the writ petition, the original petitioner has died and subsequently when it

came to the knowledge of the son about the pendency of this writ petition from a good friend of his father the amendment petition was filed for deleting the name of the petitioner and substituting the present petitioner which was allowed by this Court by order dated 09.02.2021. He further submits that the identical matter was subject before the Division Bench in L.P.A No.459/2018 which was disposed of vide order dated 14.12.2020 and in the light of that judgment, the writ petition can be disposed of.

5. Mr. Poddar, the learned counsel appearing on behalf of the respondent nos. 2 and 3-Dhanbad Municipal Corporation submits that the LPA order has been passed and in the light of that order, this writ petition can be disposed of.

6. The Division Bench in the said LPA has considered this aspect of the matter in paragraph no.6 which is quoted hereinbelow:

"6. In pursuance to the aforesaid direction dated 28.09.2020, the State has filed an affidavit stating inter alia therein that in pursuance to the provision of Rule 44 of the Rules, 1987 no sanction of the State Government is required for revision of pension for the municipal employees and when the Government from time to time revises the pension of the Government servants, it also becomes admissible to the Municipal employees.

Further, it has been stated at paragraph-8 that the provision of Rule 43 of the Rules, 1987 gives power to the State Government to increase or give relief in pension beyond what is already prescribed and the local body will be bound to pay it. For ready reference, paragraphs 7 & 8 are being reproduced hereinbelow:

"7. That it is humbly stated and submitted that from Rule 44 of Bihar Municipal Officers and Servants Pension Rules, 1987 it is evident that revision of pension for Municipal employees does not require sanction of State Government and when the Government from time to time revises the pension of Government servant, it also becomes admissible to the Municipal employees.

8. That it is humbly stated and submitted that it is relevant to mention here that Rule 43 of the Bihar Municipal Officers and Servants Pension Rules, 1987 gives power to the State Government to increase or give relief in pension beyond what is already prescribed and the Local Body will be bound to pay it."

7. Paragraph no.8 of the said judgement is also relevant for disposing of this writ petition, which is also quoted hereinbelow :

"8. When the matter was taken up today, Mr. Satendra Kumar, at present working as Municipal Commissioner, Dhanbad Municipal Corporation, Dhanbad has appeared and tendered unqualified apology for not filing affidavit in terms of the order dated 09.11.2020.

It has been stated in the affidavit dated 01.12.2020 that the provision of Rules 43 and 44 of the Rules, 1987 is binding upon the Municipal Corporation, in exercise of its power vested in absence of the elected body has decided to implement the decision and direction of the Government of Jharkhand.

It has been stated in the said affidavit that the matter was discussed with the Accounts Department and as such it has taken some time but from the discussion it transpires that it has huge financial implications.

It has further been stated that since the provision of Rules 43 and 44 of the Rules, 1987 is applicable and as such the appellant/writ-petitioner is entitled to get the pension at par with the State Government employees as has been revised from time to time."

8. The submission on behalf of Dhanbad Municipal Corporation was also considered by the Division Bench in paragraph no.9, which is also quoted hereinbelow:

"9. Learned counsel for the Dhanbad Municipal Corporation, however, has sought for some time to make payment in favour of the appellant/writpetitioner on the basis of the revised pension. The relevant part of the paragraph of the affidavit filed by the Dhanbad Municipal Corporation dated 01.12.2020 is being reproduced hereinbelow:

"3. That after deliberations and discussions, it is submitted that interpretation of Rules 43 and 44 of the Rules, 1987 given by the State of Jharkhand is binding on the Dhanbad Municipal Corporation and, therefore, no contrary view or interpretation can be place on record by the Municipal Corporation. Accordingly, the Municipal Commissioner in exercise of its power vested in absence of the elected body has decided to implement the decision and direction

of the Government of Jharkhand.

4. That I say that the delay in filing this affidavit is only on account of the fact that some time was consumed in deliberating the matter amongst officers concerned and also consulting the Accounts Department as it has huge financial implications. Furthermore, at present the elected body of the Dhanbad Municipal Corporation is not in existence. The department had no intention to delay the filing of the affidavit in response to the State Government's affidavit."

9. Considering all these aspects of the matter, in paragraph no.13 of the said judgment, the direction has been issued, which is quoted hereinbelow:

"13. Accordingly, and as agreed by Mr. Indrajit Sinha, learned counsel for the Dhanbad Municipal Corporation in presence of Mr. Satendra Kumar, the Municipal Commissioner, Dhanbad Municipal Corporation, Dhanbad, this Court, hereby, directs the Dhanbad Municipal Corporation, Dhanbad to disburse the amount pertaining to pension in favour of the appellant/writ- petitioner on the basis of the revised rate within a period of three months from the date of receipt/production of copy of the order.

10. In the light of the said judgment of the Division Bench, 6% interest is allowed to the petitioner.

11. Accordingly, the writ petition is disposed of directing the respondent Dhanbad Municipal Corporation to pay the amount pertaining to pension within three months from the date of receipt of the order.

12. The respondent Dhanbad Municipal Corporation shall also examine the entitlement of the petitioner with regard to the ACP and will pass a reasoned order.

13. The petitioner shall be entitled for interest @ 6% in the light of the said judgment of the Division Bench.

14. With the above observation and direction, the writ petition disposed of.

( Sanjay Kumar Dwivedi, J) SI/,