Respondent No. 1/ vs Umesh Prasad Choudhary
2021 Latest Caselaw 1062 Jhar

                            1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 L.P.A. No. 280 of 2019
                         with
                  I.A. No. 1370 of 2020
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The Jharkhand State Electricity Board (Now J.U.V.N.L.) through its Chairman, Project Bhawan, P.O & P.S. - Dhurwa, District - Ranchi, through its Law Officer Arun Kumar Srivastava, Aged About - 52 years, son of late Sri R.K. Lal, resident of - Gas Godown Road, P.O & P.S. - Namkum, District - Ranchi (Jharkhand).

..... Respondent No. 1/Appellant

Versus

1.Umesh Prasad Choudhary, S/o Late Mukhlal Choudhary, R/o - Second House, Behind Swapna Market, Bhagwanpur Chowk, P.O & P.S. - Muzaffarpur, District- Muzaffarpur. ... Petitioner/Respondent

2.The Secretary, Jharkhand State Electricity Board, Project Bhawan, P.O & P.S. Dhurwa, District - Ranchi.

3.The General Manager-cum-Chief Engineer, Electric Supply Area, Jamshedpur, P.O & P.S. Bistupur, District - Singhbhum East.

4.The Electrical Superintending Engineer, Electric Supply Area, Jamshedpur, Bikash Bhawan P.O & P.S. Adityapur, District Singhbhum East.

5.Director of Accounts, Jharkhand State Electricity Board, Project Bhawan, P.O & P.S. Dhurwa, District - Ranchi.

6.Accounts Officer, Electric Supply Area/Circle, Jamshedpur, P.O & P.S. Adityapur, District Singhbhum East. ... .... Respondents

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CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant : Mr. Pratyush Kumar, Advocate For the Res-writ petitioner:

: Mr. Dhananjay Kr. Pathak, Advocate

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Oral Judgment Order No. 09 : Dated 3rd March, 2021:

With consent of the parties, hearing of the matter

has been done through video conferencing and there is no

complaint whatsoever regarding audio and visual quality.

I.A. No. 1370 of 2020

2. This Interlocutory Application has been filed for

condoning the delay of 361 days, which has occurred in

preferring this appeal.

3. Heard learned counsel appearing for the parties.

4. Having regard to the averments made in this

application, we are of the view that the appellant was

prevented by sufficient cause from preferring the appeal

within the period of limitation.

5. Accordingly, I.A. No. 1370 of 2020 is allowed and delay

of 361 days in preferring the appeal is condoned.

L.P.A. No. 280 of 2019

6. The instant intra-court appeal is preferred against

the order/judgment dated 12.02.2018 passed by learned

Single Judge in W.P. (S) No. 6492 of 2011, whereby and

whereunder the writ Court while allowing the writ petition

has quashed and set aside order dated 17.09.2005, by

which the representation dated 23.06.2005 submitted by

the writ petitioner, with regard to payment of recovered

amount of gratuity, as also for payment against medical

reimbursement, has been rejected; and the writ Court

directed to make payment to the tune of Rs. 2,05,090/-

on account of gratuity with interest from the date it

became payable and further directed to make payment of

Rs. 2,10,100/- on account of medical reimbursement

within a period of six weeks.

7. The brief facts of the case, which are required to be

enumerated herein for proper adjudication of the lis, are

as under:

The writ petitioner joined services of Bihar State

Electricity Board (now Jharkhand Urja Vikas Nigam

Limited) on 22.02.1965 and after rendering satisfactory

service of 37 years, he retired from services on

30.06.2003 on attaining the age of superannuation from

the post of Assistant Electrical Engineer, Electrical

Central Store, Jamshedpur. The respondents-Board, in

terms of notification no. 275 dated 24.10.2000 had fixed

the basic pay of the petitioner, on the basis of last basic

pay drawn to the tune of Rs. 13,650/-.

The writ petitioner, while in service of the

respondents-Board, underwent Coronary Artery Bypass

Surgery, for which, after duly abiding by the regulations

and provisions as laid down by the Medical Attendance

Rules, 2001 approved by Board's Resolution No. 7773, he

was admitted in one of the hospitals recognized by the

said Rules and after being operated, he submitted the

medical bills given by the hospital vide representation

dated 15.06.2002 before the respondents-Board, but for a

long period of time no step was taken for reimbursement

of medical expenses borne out by him and the claim of

the writ petitioner was not decided.

In the meantime, the writ petitioner superannuated

from services but after his superannuation, the payment

of gratuity, G.P.F., Group Saving Schemes etc., which

was payable to the writ petitioner, was stopped.

Aggrieved thereof, the writ petitioner approached

this Court by filing writ petition, being W.P. (S) No. 6532

of 2003, which was disposed of vide order dated

06.01.2004 directing the respondent-Board to release the

sanctioned retiral dues of the petitioner within a period of

two months. In compliance thereof, the respondents-

Board though released the retiral dues but after

deducting major chunk of amount from it, as such, the

writ petitioner moved this Court by filing contempt

petition being Cont. Case (C) No. 1066 of 2004, which

was dropped holding that grievance of the writ petitioner

has substantially been complied with however, liberty

was granted to the petitioner to question the illegal

deduction before appropriate forum.

With the liberty aforesaid, the writ petitioner

submitted representation dated 23.06.2005 before the

respondents-Board for redressal of his grievance with

respect to illegal deduction from gratuity and

commutation of pension and also for reimbursement of

medical expense incurred by the petitioner during his

service period, which was disposed of vide Memo No.

5038 dated 17.09.2005, whereby claims of the petitioner,

with regard to payment of gratuity, commutation of

pension and medical reimbursement, was denied.

The writ petitioner, being aggrieved by order dated

17.09.2005, again approached this Court by filing writ

petition, being W.P. (S) No. 6492 of 2011, wherein the

respondents-Board have contested the case by filing

counter affidavit justifying the reason for denial of the

claim of the petitioner, inter alia, on the ground that

actual last basic pay of the writ petitioner ought to have

been fixed at Rs. 13,350 instead of Rs. 13,650, as such

he got excess amount due to wrong fixation of pay and,

therefore, the claim of gratuity and other retiral benefits

was not disbursed in favour of the writ petitioner.

The writ Court, after considering the provisions of

Payment of Gratuity Act, 1972 as also provisions of

Medical Attendance Rules, 2001, quashed the impugned

order dated 17.09.2005 and directed to make payment

towards gratuity and medical reimbursement bills, which

is the subject matter of present intra-court appeal.

8. Mr. Pratyush Kumar, learned counsel for the

appellant at the outset has submitted that matter ought

to have been remitted before the authorities concerned for

fresh consideration on the issue of entitlement of pay of

the writ petitioner as to whether he was entitled to get

pay of Rs. 13,650 or Rs. 13,350, but the learned Single

Judge has simply quashed the impugned order and

directed to disburse the entire amount without

considering the fact that it is not the issue of recovery

from gratuity rather the matter pertains to wrong fixation

of pay, which needs to be rectified.

According to learned counsel, pay of the writ

petitioner was wrongly fixed on the date of his retirement,

but it is settled position of law that if any mistake has

been committed that has to be rectified on the principle

that illegality cannot allowed to be perpetuated.

9. Per contra, Mr. Dhananjay Kumar Pathak, learned

counsel for the writ petitioner, respondent no. 1 herein,

has submitted that there is no illegality in the order

passed by the learned Single Judge as learned Single

Judge, after taking into consideration the impugned

decision whereby and whereunder the issue pertaining to

the non-disbursement of the amount of gratuity and

medical reimbursement has been denied, and further

taking into consideration the factual aspect of the matter

vis-à-vis the legal position i.e. entitlement with respect to

the medical entitlement since was based upon the Board

Medical Attendance Rules, 2001 and further there cannot

be any recovery from the gratuity, quashed and set aside

the impugned order with a direction to disburse the said

amount in favuor of the writ petitioner and since the

matter was adjudicated by the learned Single Judge,

there was no question of remitting the matter before the

competent authority for fresh consideration on the issue

of wrong fixation of pay that too now after lapse of 18

years after retirement of the writ petitioner.

He has further submitted by refuting the contention

agitated by learned counsel for the appellants-Board that

if any mistake has been committed the same has to be

rectified in order to rectify the wrong perpetuated but that

position of law is not applicable in the facts and

circumstances of the case as the same is to be taken into

consideration within reasonable period of time but herein

the liberty is sought for after lapse of 18 years from the

date of superannuation of the writ petitioner and as such

prayer for remitting the matter for consideration of matter

afresh with respect to pay-scale cannot be said to be

proper and justified, therefore, the instant appeal is fit to

be dismissed.

10. We have heard learned counsel for the parties,

perused the documents available on record and also

finding recorded by learned Single Judge in the impugned

order.

11. Admitted fact herein is that the writ petitioner

superannuated from service w.e.f. 30.06.2003 and on the

date of superannuation, he was getting the basic pay of

Rs. 13,650 but the appellant-Board is claiming that the

writ petitioner was entitled to get pay-scale of Rs.

13,350/- and therefore, there was error in fixation of pay-

scale, hence when the writ petitioner retired from service,

the alleged excess amount paid due to wrong fixation of

pay was recovered as also claim on account of medical

reimbursement of the writ petitioner was denied.

The writ petitioner has approached to this Court by

filing writ petition being W.P. (S) No. 6492 of 2011 and

the learned Single Judge after taking into consideration

the fact that there cannot be any recovery from the

gratuity in any circumstance unless the rule so provides

and further if the writ petitioner was entitled for the

medical reimbursement as per Medical Attendance Rules,

2001, the same cannot be denied, allowed the writ

petition and directed to make payment within a period of

six weeks from the date of receipt of copy of the order.

12. The appellant-Board has questioned the said order

that the learned Single Judge after having passed order

with respect to disbursement of amount claimed

pertaining to gratuity and medical reimbursement, ought

to have been remitted the matter before the competent

authority for fresh consideration about fixation of pay,

but having not done so, gross illegality has been

committed.

Learned counsel for the appellant has further

submitted that it is well settled principle that illegality

cannot be allowed to be perpetuated.

13. There is no quarrel over the settled position of law

that if any illegality has been committed the same cannot

be allowed to be perpetuated, but this Court is of view

that the said principle is not applicable in the case at

hand, as the writ petitioner has retired from services on

30.06.2003 and at the time of his retirement he was

getting basic pay of Rs. 13,650 and it is only after his

superannuation the respondents-authorities have raised

the issue of consideration about wrong fixation of the

pay-scale.

Admittedly, the writ petitioner retired from

services and he is leading the life of retired public servant

for the last more than 18 years and, therefore, it would

not be proper for this Court to remit the matter before the

concerned authority for consideration of the fixation of

the pay-scale after lapse of more than 18 years from the

date of superannuation.

Even accepting the principle that illegality cannot

be allowed to be perpetuated but it is equally settled

position of law that it is incumbent upon the State

authorities to take a decision within a reasonable period

of time. Reasonable period would not be said to be 18

years from the date of retirement of the public servant.

14. We have further found from the memo of appeal

that the order passed by the learned Single Judge has

been challenged in entirety meaning thereby entire order

dated 17.09.2005 which has been interfered with by the

learned Single Judge by quashing and setting aside, has

been challenged by filing present memo of appeal but the

appellant-Board at this stage has made a oral submission

to remit the matter before the authority concerned.

It is well settled position of law that Court of law

cannot pass any direction upon the oral prayer that too

after deviating from the pleading made in the memo of

appeal.

15. This Court, in the facts and circumstances of the

case and looking to the reasons assigned by the learned

Single Judge for disbursement of the entire amount of

gratuity, which is based upon legal position that Payment

of Gratuity Act does not provide any provision to recover

from the gratuity amount, and it being a Central

legislation having overriding effect and further the non-

disbursement of the medical reimbursement under

Medical Attendance Rules has also been found to be

illegal in view of specific provision under Clause 11(c) of

Medical Attendance Rules which contains reference of

hospitals at which treatment for life threatening diseases

like cancer, heart disease etc. can be availed by an

employee, which has been found to be complied with, is

of the view that no interference is required to be made in

the order passed by the learned Single Judge.

16. Accordingly, the present intra-court appeal fails

and, is dismissed.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Alankar/ -

A.F.R.