Patna High Court · 1959
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11860 of 2000 With Interlocutory Application No. 4549 of 2002 ====================================================== Shri Nanhku Prasad Singh, son of Late Uchit Singh, resident of village- Akhatbara, P.O.- Bhatora, via- Ilmasnagar,District- Samastipur. .... .... Petitioner Versus 1. The State of Bihar. 2. The Commissioner, Department of Industries, Bihar, Patna. 3. 3. The Director of Department of Industries, Bihar, Patna. 4. The Managing Director, Bihar Small Scale Industries Corporation Ltd., Patna. 5. The Branch Manager (P & C.S.), L.I.C. of India, Patna. 6. The Accountant General, (A & E) II, Bihar, Patna. .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Rajendra Kumar Jain, Advocate. For the State : Mr. Shashi Bhushan Kumar, S.C. 7 Mrs. Arti Kumari, A.C. to S.C. 7 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE ORAL ORDER 12 19-09-2013
Decision
appearing for the writ petitioner is not present. This Petition under Article 226 of the Constitution has been filed by one Nanhku Prasad Singh, a retired employee of the respondent- Bihar State Small Scale Industries Corporation Limited (hereinafter referred to as „the Corporation‟), a Company incorporated under the Companies Act, 1956. joined the State Government as early as on 20th February 1959. Under the order the service of The petitioner made by the Community Project Officer (Industries), Ranchi, the petitioner was temporarily appointed to the post of Attender-cum- 2 Patna High Court CWJC No.11860 of 2000 (12) dt.19-09-2013 2 / 5 Watchman under the Scheme Decorative Pottery Centre, Ranchi. The petitioner continued to serve as such for three years. Under the Government order dated 29th March 1963, the Scheme Decorative Pottery Centre, Ranchi was transferred to the Corporation with all its assets, liabilities and manpower etc. Under the said order, the temporary staff in the erstwhile Decorative Pottery Centre were transferred to the Corporation to be placed under the disposal of the Corporation for appointment against the posts similar to the ones held by such temporary staff. The said order was made effective from 1st April 1963. The said order further stipulated that the service rendered to the State Government would be counted for the purpose of increments and leave and that such staff would be Corporation‟s employees with effect from 1st April 1963. It is not in dispute that since 1st April 1963, till the petitioner, on reaching the age of superannuation, retired from the service on 31st December 1999, he continued to serve under the Corporation. On his retirement from service, the question of payment of the retiral dues arose. According to the petitioner, he being a Government servant, it was the State Government which was responsible to pay the retiral dues in accordance with the State Government rules. According to the State Government, the service of the writ petitioner having been transferred to the Corporation, the Government was no more responsible for the terminal dues of the petitioner and that he was entitled to the benefit of the retiral dues, as may be admissible under the Corporation‟s Rules, from the Corporation. It is not in dispute that the Corporation feeling dearth 3 Patna High Court CWJC No.11860 of 2000 (12) dt.19-09-2013 3 / 5 of finance did not pay the petitioner‟s dues and the other retired employees. The Corporation also did not pay salary to its employees for certain period. In view of the ensuing litigation and the order made by this Court, the matter was referred to a Committee comprising three Judges presided over by Mr. Justice Uday Sinha (Retired). Under the orders made by the said Committee, such employees were paid arrears of salary for a period of two years. It further appears that several employees of the Corporation had approached this Court under Article 226 of the Constitution for recovery of their retiral dues. Under the concerned orders made by this Court, such employees were allowed the arrears of retiral dues and the State Government was directed to pay such retiral dues. One of the said matters travelled to the Hon‟ble Supreme Court in Civil Appeal No(s). 2250 of 2008. The Hon‟ble Supreme Court, under its order dated 27th April 2011, dismissed the said appeal; however, observed, “However, the question of law is kept open”. On perusal of the record, it transpires that a petition for winding up is pending against the Corporation in Company Petition No. 5 of 1999 before the Company Court. It further transpires that the Corporation had entered into an arrangement with the Life Insurance Corporation of India (hereinafter referred to as „the LIC‟) for payment of gratuity to its retired employees. Accordingly, the Corporation sanctioned payment of Rs. 80,700/- towards the gratuity and forwarded the same to the LIC. The LIC, however, refused to honour its liability on the premise that the Corporation had ceased to pay the premia since 1993. Thus, it appears that under some scheme or arrangement, the amount of 4 Patna High Court CWJC No.11860 of 2000 (12) dt.19-09-2013 4 / 5 gratuity payable to the employees of the Corporation was covered by the LIC. It further transpires that the petitioner was not a member of the Employees Provident Fund Scheme and that he is not entitled to pension or any other benefit under the said Scheme. Under the prevalent rules of the Corporation, the service under the Corporation is not pensionable service. Instead the employees of the Corporation are the members of the Contributory Provident Fund Scheme. The Corporation has filed a counter affidavit stating that the amount of contribution by the Corporation was deposited by the Corporation until 1993. Since then, the Corporation ceased to make its contribution for want of availability of the funds. In view of the above referred facts and the orders made from time to time, it appears that the question, whether or not, after transfer to the Corporation on 1st April 1963, the erstwhile employees of the State Government can have a claim for retiral dues against the State Government, has to be answered in negative. As it transpires that the entire Scheme Decorative Pottery Centre was transferred to the Corporation, the petitioner and such other temporary staff were also transferred to the Corporation. Since their transfer to the Corporation, they ceased to have lien in the State service. Even otherwise, they being temporary servants of the State would have no lien in the State service. The claim of the petitioner for retiral dues against the State Government has to be rejected. There is no gainsaying that the writ petitioner did serve under the Corporation since 1st April 1963 till he retired from service on 31st December 1999. The writ petitioner is, therefore, entitled to the benefit of retiral dues from the 5 Patna High Court CWJC No.11860 of 2000 (12) dt.19-09-2013 5 / 5 Corporation. For more than 36 years he rendered service under the Corporation, he is entitled to the amount of gratuity sanctioned by the Corporation and also the amount of Contributory Provident Fund with statutory interest thereon. I may, however, note that since the Corporation is facing winding up proceeding before the Company Court in the aforesaid Company Petition No. 5 of 1999, no claim against the Corporation can be maintained except with the permission of the Company Court. In the above circumstances, I dispose of this Petition with a liberty to the writ petitioner to lodge his claim for the aforesaid retiral dues before the Company Court in the Company Petition No. 5 of 1999 or with the permission of the Company Court. . petitioner. Interlocutory Application stands disposed of. Registry will send copy of this order to the writ Sujit/- (R.M. Doshit, CJ)