Ravindra Kumar vs The State Of Bihar And Ors
2021 Latest Caselaw 2 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.5792 of 2018
     ======================================================

Ravindra Kumar Son of late Dr., Ram Govind Singh Resident of Chief Engineer's Residence , P.O. GPO, P.S. Kotwali, District- Patna.

... ... Petitioner/s Versus

1. The State Of Bihar and Ors

2. The Principal Secretary, Urban Development and Housing Department, Govt. of Bihar, Vikas Bhawan, Ba

3. The Patna Municipal Corporation through Municipal Commissioner, Maurya Lok Complex, Patna.

4. The Municipal Commissioner, Patna Municipal Corporation, Maurya Lok Complex, Patna.

5. The Additional Municipal commissioner Establishment, Patna Municipal Corporation, Patna.

6. The Executive Officer, Patna Nagar Nigam Water Supply.

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s   :     Mr.Kunal Tiwary
     For the Corporation    :     Mr.Prasoon Sinha
                                  with Mr. Prabhakar Singh, Advocates

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH CAV JUDGMENT Date : 04-01-2021

The petitioner retired while holding the rank of

Superintending Engineer in Patna Municipal Corporation

(PMC) with effect from 30.04.2017. In the present application

filed on 28.032018, the petitioner has sought for a direction to

the respondents to pay his post retiral dues. It has been

specifically asserted in the writ application that till the date of

the filing of the writ application, not even a single penny has

been paid to him against post retiral dues, despite the fact that Patna High Court CWJC No.5792 of 2018 dt.04-01-2021

there was no department proceeding ever initiated, against the

petitioner.

2. The present case was heard online through video

conference, during the course of which Mr. Kunal Tiwary,

learned counsel for the petitioner and Mr. Prasoon Sinha, with

Prabhakar Singh, learned counsel, representing the Patna

Municipal Corporation made their extensive arguments on

behalf of the rival parties.

3. A counter affidavit and a supplementary counter

affidavit have been filed on behalf of the Corporation. The

petitioner has filed reply to the counter affidavit. A counter

affidavit has also been filed on behalf of the State of Bihar.

4. Briefly narrated, the case of the petitioner is that

after his appointment as Assistant Engineer in Patna Water

Board in 1983, he was granted promotion to the post of Chief

Engineer of the Board, which is equivalent in rank to the post of

Executive Engineer in the Government. At the said point of

time, the Patna Water Board was part of Patna Municipal

Corporation. The petitioner, it has been asserted was granted

promotion to the post of Chief Engineer of the Board

( equivalent to Executive Engineer in the Government) on the

recommendation of the Bihar Public Service Commission vide Patna High Court CWJC No.5792 of 2018 dt.04-01-2021

office order as contained in Memo No. 1895 dated 01.11.1996.

Patna Municipal Corporation, Patna Regional Development

Authority and the Board were decided to be merged by the State

Government in the year 2006 and three posts equivalent to the

post of Superintending Engineers under the State Government

were created, which were to be filled up by granting promotion

to the Engineers working in the Corporation. Kalawadhi of

eight years was prescribed for promotion to the rank of

Superintending Engineer from the rank of Executive Engineer

and the petitioner having completed the said Kalawdhi was

entitled to be considered for upgradation of his status to the rank

of Superintending Engineer of the State Government. Before the

petitioner's case could be considered for promotion, he was

diagnosed suffering from cancer for which, with permission of

the authority, he had left to the United States of America for

proper medical treatment and he remained there from April

2010 to September, 2010. Apart from the difficulties, which

arose in respect of the payment of regular salary after the

petitioner rejoined the post on return from USA, he has asserted

that as the respondents were not considering his case for

promotion, he had to approach this Court invoking writ

jurisdiction with filing of an application, which had given rise to Patna High Court CWJC No.5792 of 2018 dt.04-01-2021

CWJC No. 15242 of 2012. The said writ application was

disposed of by an order dated 05.10.2012 with a direction to the

Corporation to consider his case for promotion to the next

sanctioned post equivalent to the Superintending Engineer in the

Government for which the petitioner was eligible since 2004.

The petitioner, however, started getting salary from the month of

August, 2012. It is the petitioner's case that the petitioner was

not paid his salary from the month of April, 2010 to July, 2012

and August, 2014. This made the petitioner file another writ

application, giving rise to CWJC No. 6014 of 2014, seeking

direction for payment of salary for the said period(s). It has also

been asserted that the petitioner had filed a writ application,

bearing CWJC No. 6014 of 2017 on 08.04.2017. It is his

grievance that as counter blast of the filing of the writ

application, the respondents issued show cause notice on

20.04.2017, which was served on 27.04.2017, hardly two days

before the date of superannuation, alleging that the petitioner

was absent since the Month of August, 2014. The petitioner had

submitted his show cause reply on 29.04.2017 itself

categorically denying the allegation against him. He asserted in

his reply that the allegation of his remaining unauthorized

absent from duty was baseless and as a matter of fact, he had Patna High Court CWJC No.5792 of 2018 dt.04-01-2021

remained on duty under the direction of the senior authorities. It

is the petitioner's case, in the aforesaid background that his post

retiral benefits have been illegally withheld.

5. In the counter affidavit filed on behalf of the

Corporation, it has been stated that no document relating to

appointment and service of the petitioner was available and,

therefore, the petitioner was repeatedly asked to make available

the required documents for preparation of second (duplicate)

service book but he ignored the request as well as the direction

issued by the Corporation. It has further been stated that vide

Memo No. 1605 dated 03.04.2012 a direction was issued by the

Municipal Commissioner of the Corporation to the petitioner to

join his post and to execute his work regularly. It has been

admitted that the petitioner submitted his joining on 03.04.2012

but from the records it did not appear that the petitioner

performed any work. It has also been asserted that the petitioner

remained absent from August, 2012 till date of his

superannuation without any approval of the higher authorities.

Accordingly, a show cause notice was sent to the petitioner on

29.04.2017 to his residence. For the aforesaid conduct a charge-

sheet in parpatra 'ka' was issued on 04.05.2017 by the

Additional Municipal Commissioner (Establishment) of the Patna High Court CWJC No.5792 of 2018 dt.04-01-2021

Corporation.

6. The copy of the said charge-sheet issued after

petitioner's superannuation on 04.05.2017 has been brought on

record by way of Annexure R-6/B of the counter affidavit. It is

apparent on reading of the said charge-sheet dated 04.05.2017

that the same has been issued under the Bihar Government

Servant (Classification Control and Appeal ) Rules, 2005, when

the petitioner had already retired.

7. The petitioner has controverted the assertion in the

rejoinder affidavit that because of absence of records, the

petitioner's post retiral dues have remained pending. The

petitioner has termed the statement in the rejoinder affidavit

regarding his absence from August, 2014 as incorrect. It has

been stated that the petitioner had approached this Court under

contempt jurisdiction, alleging disobedience of this Court's

order dated 05.10.2012 passed in CWJC No. 15242 of 2012, in

relation to grant of promotion to the rank of Superintending

Engineer. In the said proceeding the same stand was taken that

there were no documents relating to the petitioner's appointment

and service of the petitioner and that the service book of the

petitioner was untraceable and further that the petitioner was not

cooperating in reconstruction of the service book. The Court Patna High Court CWJC No.5792 of 2018 dt.04-01-2021

had taken serious note of such stand taken on behalf of the

Corporation and had directed the Corporation to file an affidavit

placing on record the name of the persons responsible for

missing of the records and the action taken by the Corporation

in this regard, to fix the accountability. This Court had taken

note in the order dated 03.10.2018 passed in MJC No. 505 of

2016 that on the one hand the authorities were giving frivolous

excuses of not having documents with respect to appointment

and service of the petitioner, on the other hand, the Corporation

had issued show cause notice and initiated departmental

proceeding after his superannuation. The Court had opined that

the plea of Corporation for not being able to comply with the

order of the writ Court was a mere pretext in the garb of which

the petitioner was being deprived of the benefits, which had

already accrued to him under the orders of this Court passed in

the writ jurisdiction. It has specifically been stated in the

rejoinder affidavit that it was because of this Court's

intervention that the service book of the petitioner was prepared

by the Corporation, which fact was communicated by the

learned counsel for the Corporation on 18.02.2019, when the

said contempt application was taken up and when the Court had

directed the petitioner to comply with the formality of signing Patna High Court CWJC No.5792 of 2018 dt.04-01-2021

duplicate service book by approaching the Additional

Commissioner of the Corporation on or before 15th March,

2019. It has further been stated that in compliance of this

Court's order, the petitioner had approached the Additional

Commissioner of the Corporation and had put his signature at

the required place in the duplicate service book. It has also been

asserted that the petitioner had put his signature on the duplicate

service book before the same Additional Commissioner of the

Corporation, who has sworn the counter affidavit filed in the

instant case to demonstrate that the deponent of the counter

affidavit was personally, fully aware with the development of

the petitioner's case in MJC NO. 505 of 2016. It has been

accordingly asserted that the deponent has sworn an incorrect

affidavit by stating that there was no document of the petitioner

available and that the service book of the petitioner had been

lost and that the petitioner was not cooperating in reconstruction

of the service book because of which the retiral benefits of the

petitioner was not being paid. It is, thus, the specific case of the

petitioner that his service book has duly been reconstructed and

the stand taken in the counter affidavit alleging non-cooperation

by the petitioner in relation to reconstruction of the service book

is palpably wrong, frivolous and just in order to harass the Patna High Court CWJC No.5792 of 2018 dt.04-01-2021

petitioner in one manner or the other. The petitioner has

narrated the harassment, which he had to suffer at the hands of

the respondents in the matter of grant of promotion and has

asserted that it was only because of strong exception taken by

this Court to recalcitrant and harassing attitude of the

respondents that a finally the petitioner was granted promotion

to the rank of Superintending Engineer. It has also been pointed

out in the rejoinder affidavit that on an undertaking given on

behalf of the Corporation in a contempt proceeding bearing

MJC No. 505 of 2016 that this Court had directed the

respondents to ensure payment of admissible dues, which

despite the Court's observation and direction has not been paid

so far.

8. After filing of the rejoinder affidavit a supplementary

counter affidavit has been filed on behalf of the Corporation. No

statement made in the rejoinder affidavit has been denied in the

counter affidavit. It has been merely stated in the

supplementary counter affidavit that after reconstruction of

petitioner's service book the Executive Officer, Water Supply

Circle, PMC has perused the records, has taken steps for

redressal of the petitioner's grievance and has found that the

account number, IFSC Code, name of the bank and the Branch Patna High Court CWJC No.5792 of 2018 dt.04-01-2021

as well as pension application in proper form had not been made

available by the petitioner for which several letters were issued

to the petitioner. He has been requested now to make available

the said documents as soon as possible. A communication dated

05.10.2020 in this regard, has been brought on record by way of

Annexure R6/D. It has further been stated that the Executive

Engineer, Water Supply Circle of the Corporation has passed an

order on 12.10.2020 and has granted sanction for payment of the

amount of gratuity, cash equivalent to unutilized earned leave,

differential amount of salary and re-fixation of pay on the basis

of 2nd promotion from 01.04.2010 to 29.02.2012 and differential

amount of dearness allowance for the period of 01.07.2010 to

28.02.2012. The sanction order has been brought on record by

way of Annexure R6/E from which it transpires that a total sum

of Rs. 27,45,395.00 has been found admissible by the

Corporation itself against the aforesaid four heads. It has been

stated in paragraph 5 of the supplementary counter affidavit that

because of latches on the part of the petitioner, who did not

supply the required information and documents, payment of

retirement benefits as well as pension is not being paid to him in

respect of which, learned counsel for the petitioner has been

communicated by the learned counsel for the Corporation. To Patna High Court CWJC No.5792 of 2018 dt.04-01-2021

say the least, the statement made in paragraph 5 of the

supplementary counter affidavit is shameless, which reads as

under:-

"5. That it is humbly submitted that due to latches opf the part of the petitioner who has not supplied the required informant and documents, payment of retirement benefits as well as pension is not being paid to him for which counsel for the PMC also communicated to the counsel appearing for the petitioner."

9. As has been noticed hereinabove, initially, the

Corporation took a plea that no document in relation to

petitioner's appointment and service was available and he was

not cooperating in reconstruction of the service book. The said

aspect was described in the counter affidavit as the main reason

for non-payment of retirement benefits and other dues. In any

event, the service book was reconstructed with this Court's

intervention that too, in the contempt proceeding registered as

MJC No. 505 of 2016. The payment of sum which the petitioner

was admittedly entitled to receive as on the date of his

superannuation on 29.02.2017 has been computed to be Rs.

27,45,395/- against four heads, namely, gratuity, leave

encashment, differential amount of salary on the basis of second Patna High Court CWJC No.5792 of 2018 dt.04-01-2021

promotion and differential amount of dearness allowance

payments of which have been sanctioned nearly three and half

years after his retirement. The explanation given in the counter

affidavit for delay in payment is not acceptable to this Court. In

view of the clear factual position that it was only after strong

view was taken by this Court in the contempt proceeding that

the respondents-Corporation took serious steps for

reconstruction of the service book. There was no role of the

petitioner in maintaining the service book nor any role has been

attributed to him for disappearance of the original service book.

The petitioner had retired on 30.04.2017 whereas the charge

memo for initiation of departmental proceeding under the Rules

was issued on 04.05.2017. No proceeding under the provisions

of said Rules could be initiated against a retired employees as

no punishment stipulated therein could be imposed against a

retired employee. There is no material on record to suggest that

any proceeding has been initiated for withholding of pension in

accordance with law.

10. Pension is a deferred compensation for services

rendered as defined in the Blacks Law dictionary (6th edition

1134). The Supreme Court nearly five decades ago in the case

of Deoki Nandan Prasad Vs. State of Bihar reported in (1971) Patna High Court CWJC No.5792 of 2018 dt.04-01-2021

1 SCC 330 opined in paragraph 16 thereof that right to get

pension is a property and by withholding the same, employees'

fundamental rights guaranteed under Articles 19(1) (f) and 31(1)

of the Constitution of India are affected.

11. Pension is a reward for past services stated the

Supreme Court in case of State of Bihar Vs. S.S. Diwan

reported in (1997) 4 SCC 569. In case of All India Reserve

Bank Retired Officers' Association Vs. Union of India

reported in (1992) suppl. 1 SCC 664 has in clear termed held

that pension is not a charity or bounty nor is it a gratuitous

payment. It is earned for rendering long service and it is often

described as deferred portion of compensation for past service.

It is in the nature of social security plan to provide for the

December of life of a superannuated employee. The Supreme

Court further ruled that such security plans are consistent with

the socio-economic requirements of the Constitution when the

employer is a State within the meaning of Article 12 of the

Constitution of India. Right to pension is statutory right which a

superannuated employee can be deprived only in accordance

with law.

12. In the present case the respondents withheld the

petitioner's legitimate admitted pensionary and other dues Patna High Court CWJC No.5792 of 2018 dt.04-01-2021

without any valid justification on the pretext of petitioner's non-

cooperation. Initiation of issuance of notice with the charge-

sheet in parpatra 'ka' under the Rules after petitioner's

superannuation is meaningless.

13. Considering the admitted facts as noted above and

the conduct of the respondents-Corporation, this writ application

is allowed with the following directions:-

(i) The petitioner shall be entitled to interest at the rate

of 5% per annum on all his entitlements from the date of his

superannuation till the date of actual payments.

(ii) Accordingly, the petitioner shall be entitled to

interest at the rate of 5% on the total sum of Rs. 27,45,395/-,

which has been sanctioned for payment by the order of the

Corporation dated 12.10.2020 from the date of the petitioner's

superannuation till the date of actual payment. The said amount

of Rs. 27,45,395/- should be credited in the petitioner's account

within a fortnight from today, if not already credited.

(iii) The amount of interest shall be calculated and

credited in the petitioner's account by the Corporation within

one month from today. In case the Corporation fails to credit the

said amount of Rs. 27,45,395/- in the petitioner's account within

stipulated time, the Corporation shall be liable to pay interest at Patna High Court CWJC No.5792 of 2018 dt.04-01-2021

the rate of 12% per annum on the said amount after expiry of

stipulated period as fixed in the present order.

(iv) The Respondent-Corporation shall ensure that

petitioner's pension is finalized, his arrears of pension is paid

and he starts getting monthly pension on regular basis within

one month from the date of receipt/production of a copy of this

order.

14. It is considered apt, in the facts and circumstances

of the case, to impose cost for compelling the petitioner to

approach this Court in this matter, which is quantified at

Rs.20,000/- (twenty thousand), which also must be paid by the

Corporation to he petitioner within one month from the date of

receipt/production of a copy of this order.

(Chakradhari Sharan Singh, J)

arun/-

AFR/NAFR                NAFR
CAV DATE                08.12.2020
Uploading Date          11.01.2021
Transmission Date