Damodar Sinha vs The Bihar State Power Holding ...
2021 Latest Caselaw 843 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                Civil Writ Jurisdiction Case No.6936 of 2018
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Damodar Sinha son of Lat Mahabir Sinha, Resident of New Kunj Colony, Bahadurpur, P.S. Bahadurpur, District- Patna.

... ... Petitioner Versus

1. The Bihar State Power Holding Company Ltd. Vidyut Bhawan, Bailey Road, Patna through its Chairman-cum-Managing Director.

2. The Chairman-cum-Managing Director, Bihar State Power Holding Company Ltd, Vidyut Bhawan, Bailey Road, Patna.

3. The General Manager, Bihar State Power Holding Company Ltd, Vidyut Bhawan, Bailey Road, Patna.

4. The Additional Secretary, Bihar State Power Holding Company Ltd, Vidyut Bhawan, Bailey Road, Patna.

5. The Joint Secretary, Bihar State Power Holding Company Ltd, Vidyut Bhawan, Bailey Road, Patna.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr.Arjun Kumar, Advocate For the Respondent/s : Mr.Ranjit Sinha, Assistant Standing Counsel ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 11-02-2021

Heard learned counsel for the petitioner and

learned counsel representing the Bihar State Power Holding

Company Limited (hereinafter referred to as the 'BSPHCL')

and it's authorities (hereinafter referred to as the

'Respondents').

Petitioner in this case is seeking quashing of the

order passed by Chairman-cum-Managing Director of the

'BSPHCL' by which he has rejected the representation of the

petitioner and refused to release the gratuity and leave Patna High Court CWJC No.6936 of 2018 dt.11-02-2021

encashment of the petitioner. A writ in the nature of mandamus

has also been sought for directing the respondents to release

the gratuity and leave encashment amount in favour of the

petitioner.

Learned counsel for the petitioner submits that

during pendency of the writ application the gratuity amount has

already been released, therefore the relief is now restricted to

the entitlement of the petitioner as regards the leave

encashment amount and payability of statutory interest for the

delayed period of payment of gratuity. The grievance of the

petitioner is that the respondents have not paid any interest for

the delayed payment.

The facts in brief are as under:-

(1) The petitioner retired from service as

Chief Engineer on 31.03.2004. While he was posted

as Chief Engineer in the Dehri-on-Sone Electrical

Circle, a First Information Report giving rise to

Vigilance Case No. 02 of 2002 was instituted

wherein several persons including the petitioner has

been made accused. There was an allegation that

one crusher owner was engaged in electricity theft

and the employees of the erstwhile electricity board

were made accused alleging that they had

conspired with the said crusher owner.

Patna High Court CWJC No.6936 of 2018 dt.11-02-2021

(2) After retirement when the petitioner was

denied his retiral benefits he filed a petition bearing

CWJC No. 8781/2008 which was disposed off with a

direction to the competent authority to take a

decision for release of the gratuity and leave

encashment. It is in the light of the said order that

the petitioner represented before the respondent

authorities. The said representation has been

rejected vide letter no. 554 dated 09.07.2015

(Annexure '3' to the writ application).

Learned counsel for the petitioner submits that on

perusal of the Annexure '3' it would appear that the Chairman-

cum-Managing Director of the respondent no. 1 has rejected

the representation of the petitioner taking a view that he was

facing a charge on the date of his retirement. In the same

order, it has come that in the case of Sri Saryu Prasad Singh,

who, according to the petitioner, was similarly situated as an

accused in the said Vigilance Case the respondents had

sanctioned his leave encashment amount but then his case

has been distinguished saying that on the date of retirement of

Sri Saryu Prasad Singh i.e. 30.11.2001 the charge-sheet was

not filed against him and the same came to be filed only on

02.07.2002.

Learned counsel submits that at this stage the Patna High Court CWJC No.6936 of 2018 dt.11-02-2021

respondents have brought on record the standing order no.

1/Pension-EEB-4244/97 784/Dated, the 21.08.97 and a

reading of the same would show that it talks of those

employees/officers who were facing 'charges' on the date of

their superannuation. It nowhere mentions about the pendency

of a criminal proceeding or filing of a charge-sheet being a

ground of withholding of the leave encashment.

It is submitted that admittedly in the case of the

petitioner as also in the case of Sri Saryu Prasad Singh no

departmental proceeding has been initiated as neither the

petitioner nor said Sri Saryu Prasad Singh was served with

any memo of charge. In his submissions, the standing order

dated 21.08.1997 (Annexure 'B' to the supplementary counter

affidavit of the respondents) would be applicable only when the

employee is facing a charge in a departmental proceeding on

the date of his superannuation.

Learned counsel further submits that on the date of

retirement of this petitioner there was no standing order

allowing withholdment of the leave encashment benefit of a

retired employee who is facing a criminal case. It is pointed out

that a criminal case against the petitioner is pending since the

year 2002, and even at this stage, there is no chance of early

conclusion of the trial. Almost 20 years have gone past

institution of vigilance case.

Patna High Court CWJC No.6936 of 2018 dt.11-02-2021

Learned counsel further points out from Annexure

'A' to the supplementary counter affidavit filed on behalf of the

respondents that the standing order relating to withholdment of

leave encashment benefit has been modified vide memo no.

1167 dated 17.12.2004 i.e. after the retirement of the

petitioner. The said modification was necessitated in view of

the court cases faced by the board and upon deliberation the

board modified the standing order by including the

departmental as well as criminal proceeding against any

employee/officer of the board as a ground for withholdment.

Learned counsel submits that so far as the modified standing

order dated 17.12.2004 (Annexure 'A' to the Supplementary

counter affidavit) is concerned, the same would not be

applicable in respect of the petitioner.

Mr. Ranjit Sinha, learned counsel representing the

respondents submits that earlier the petitioner has been paid

all his retiral benefits save and except the leave encashment

amount. Reliance was placed on the standing order dated

21.08.1997 but very soon Mr. Sinha, learned counsel, has

accepted the legal position as regards applicability of the

modified standing order which came into effect few months

after retirement of this petitioner. Realizing that the Annexure

'A' to the supplementary counter affidavit has included the

pendency of the criminal proceeding as a ground for Patna High Court CWJC No.6936 of 2018 dt.11-02-2021

withholdment of the leave encashment benefit to a retired

employee only with effect from 17.12.2004 when the standing

order was modified and the modified order came into effect,

Mr. Sinha agrees to the extent that so far as Annexure 'A'

dated 17.12.2004 is concerned, it would not be applicable in

case of the petitioner.

Learned counsel for the respondents submits that

the gratuity amount has been paid with statutory interest.

Having heard learned counsel for the parties and on

perusal of the records, this court finds that entitlement of the

petitioner to get the leave encashment benefit is not in dispute.

The only issue which has arisen for consideration is as to

whether on the face of the standing order no. 784 dated

21.08.1997 (Annexure 'B' to the second supplementary

counter affidavit), the respondents may be held justified in

withholding of leave encashment amount of the petitioner. The

standing order dated 21.08.1997 reads as under:-

"BIHAR STATE ELECTRICITY BOARD, PATNA (DEPARTMENT OF GENERAL ADMINISTRATION) STANDING ORDER No. 1/pension-EEB-4244/97 784/Dated, the 21.08.97 The issue with regard to payment of cash in lieu of unavailed period of earned leave and commutation of pension of the employees/officers committed irregularities and facing charges which remained undecided till the date of superannuation was under consideration of the Board for some time past.

After careful consideration it has been decided that commutation of pension and payment of cash in lieu of unavailed period of earned leave may be sanctioned after the charges against the concerned employees/officers are closed.

Patna High Court CWJC No.6936 of 2018 dt.11-02-2021

The order comes into force with immediate effect but all un-decided cases shall be covered by the above decision.

By order of the Bihar State Electricity Board (Shivendu) Secretary

Memo No. 1923/EB/Patna, Dated, the 21.08.97 Copy forwarded to Member (F)/Member (Gen.)/Member (Trans.)/Tech. Sec. To Chairman/Private Secretary to Secretary for Information.

(Shivendu) Secretary

Memo No. 1923/Eb. Patna, Dated, the 21.08.97 Copy forwarded to Engineer-in-Chief/All General Manager- cum-Chief Engineers/All Chief Engineer/All General Managers/All Project Managers/All elect. Superintending Engineers/All Director of Account/Director of Finance/All Director of Personnel/Sr. Law Advisor/Director, Departmental Proceedings/All Dy. Law Advisor/All Joint Secretaries/All Elect. Executive Engineers/All Dy. Director of Accounts/All Under Secretaries/All Personnel Officers/All Asst. Elect. Engineers/All Labour Welfare Officers/All Administrative Officers for information and necessary action.

(Shivendu) Secretary"

The answer to the aforesaid issue is not difficult on

the face of the material by way of modified standing order

dated 17.12.2004 which is admittedly not applicable to the

petitioner. The modified standing order dated 17.12.2004 is

extracted herein for ready reference"-

"BIHAR STATE ELECTRICITY BOARD, PATNA DEPARTMENT OF GENERAL ADMINISTRATION.

STANDING ORDER NO. 1/Pen-EEB-4244/97(part)/850 dtd. 17.12.2004

The issue with regard to payment of cash in lieu of unavailed period of earned leave and commutation of pension to the employees/officers of the Board committed irregularities and facing charges till the date of superannuation was reviewed by the Board in light of the observation of the Hon'ble High Court in some of the court cases faced by the Board and after due consideration, it has, ultimately been decided that only in cases of pending Depttl./criminal proceedings against any employee/officer of the Board, payment of leave encashment and commutation of pension shall be withheld otherwise not.

Patna High Court CWJC No.6936 of 2018 dt.11-02-2021

2. Board's Standing Order no. 784 dated 21.08.97 read with Standing Order No. 836 dated 01.01.2001 is hereby modified to the above extent.

By order of the Bihar State Electricity Board (Dipak Kumar Singh) Secretary

Memo No. 1167 /EB., Patna, dated 17.12.2004 Copy forwarded to Under Secretary to Chairman/Under Secretary to Member (Finance)/Under Secretary to Member (T&D)/under Secretary to Member (Generation)/Under Secretary to Secretary, Bihar State Electricity Board, Patna for information.

(Dipak Kumar Singh) Secretary

Memo No. 1167 /EB., Patna, dated 17.12.2004 Copy forwarded to Al General Manager-cum-Chief Engineers/All Chief Engineers/All Project Managers/All Elect. Superintending Engineers/All Financial Controllers/All Directors/Dy. Law Advisor (Sri R.K. Sahay)/All Joint Secretaries/All Deputy Director of Accounts/All Dy. Director of Personnels/All Elect. Executive Engineers/All Personnel Officers/Under Secretary (Sri Hari Das Rajak)/All Administrative Officers/All Assistant Elecl. Engineers/All Labour Welfare Officers/All Accounts Officers, Bihar State Electricity Board for information and necessary action.

(Dipak Kumar Singh) Secretary"

It is an admitted position that this modified standing

order came into effect much after retirement of the petitioner.

The fact that the respondents had to come out with modified

standing order to cover those cases in which retired

employees are facing criminal proceeding indicates that prior

to the standing order dated 17.12.2004 the respondent

Corporation had not come out with a categorical decision to

withhold the leave encashment benefit of the retired employee

against whom no departmental proceeding is pending. It is

only after the modified standing order now the employees of

the respondents who are facing departmental as well as Patna High Court CWJC No.6936 of 2018 dt.11-02-2021

criminal proceeding on the date of their retirement would be

covered.

The fact that Saryu Prasad Singh who was also an

accused in the vigilance case had been sanctioned the

payment of leave encashment benefit would be another

indication of the fact that the respondents themselves

understood the erstwhile standing order to mean and

understand that the employees against whom no departmental

proceeding was pending would be entitled for the benefit of

leave encashment benefit.

Although learned counsel for the respondents has

pointed out from one of the affidavits that said Saryu Prasad

Singh had not received the leave encashment benefit but the

facts as appearing from the impugned order (Annexure '3') that

he was sanctioned the leave encashment benefit and the said

sanction was never cancelled is not in dispute.

In view of the aforesaid discussions, this Court finds

that as on date of retirement i.e. 31.03.2004 the petitioner was

entitled to get the leave encashment benefit and there was no

standing order covering the case of the petitioner so as to

allow withholdment of the retiral benefits such as leave

encashment benefit. Needless to say that the Hon'ble Apex

Court in the case of D.K. Nakara & Ors. Vs. Union of India

reported in (1983) 1 SCC 305 and Deokinandan Prasad Vs. Patna High Court CWJC No.6936 of 2018 dt.11-02-2021

State of Bihar & Ors. reported in (1971) 2 SCC 330 as also in

the case of D.V. Kapoor Vs. Union of India reported in AIR

1990 SC 1923, has held that the retiral dues are in the nature

of constitutional right granted to an employee and such rights

cannot be taken away without there being a law on the subject.

No doubt in this case the benefit of leave

encashment has been conferred by a standing order but to

withhold such benefit there must be a categorical standing

order providing the circumstances under which such benefit

may be withheld. Since in this case it has been admitted that

Annexure 'A' i.e. the modified standing order dated 31.12.2004

came into effect much after the retirement of the petitioner, the

court would take a view that Annexure '3' by which the

representation of the petitioner has been rejected would not

sustain the test of law. Annexure '3' being an order which has

been passed ignoring that the modified standing order cannot

be applied against the petitioner, this Court sets-aside the

same and directs the respondent authorities to release the

leave encashment benefit due to the petitioner with statutory

interest within a period of 60 days from the date of

receipt/production of a copy of this order.

As regards the payment of gratuity, it has been

contended on behalf of the petitioner that no statutory interest

has been paid, however, learned counsel for the respondents Patna High Court CWJC No.6936 of 2018 dt.11-02-2021

has repelled this contention and submitted that the statutory

interest is always calculated while paying the gratuity and the

same has been done in the case of the petitioner.

Be that as it may, in case the petitioner is of the

opinion that no statutory interest has been paid on the gratuity

amount, he may represent in this regard to the respondent

authorities who will look into the same and will take an

appropriate decision thereon in accordance with law within the

aforesaid period.

In the nature of the dispute, however there would be

no order as to cost.

This Writ Application stands allowed.

(Rajeev Ranjan Prasad, J) Rajeev/-

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