Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6972 of 2007 ====================================================== Amrendra Prasad Mishra, S/o-Late Rajendra Prasad Mishra, R/o-Mohalla- Khas Mahal, Postal Park, P.S.-Jakkanpur, District-Patna. Versus .... .... Petitioner. 1. The Bihar State Electricity Board through the Chairman, Vidyut Bhavan, Bailey Road, Patna. 2. The Secretary, Bihar State Electricity Board, Vidyut Bhavan, Bailey Road, Patna. 3. The Director of Accounts, the Bihar State Electricity Board, Vidyut Bhavan, Bailey Road, Patna. 4. General Manager cum Chief Engineer, Patna Electric Supply Unit, Mangles Road, Patna. 5. Chief Engineer (Store & Purchase), Bihar State Electricity Board, Patna.
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Uma Kant Shukla Mr. Shailendra Kr.Singh, No.1 Mr. Amrendra Kumar Sinha, No.1 For the Respondent/s : Mr. Dharmeshwar Misha Mr. Sanjay Kumar Shrivastava ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 07 14-02-2013 Having heard the learned counsel for the parties and with their consent, this writ petition is being disposed of at this stage itself. There have been counter affidavits, rejoinder and supplementary counter affidavit on behalf of the respondent Bihar State Electricity Board (hereinafter referred to as the Board). By this writ petition, petitioner seeks full payment of his retiral dues. He challenged certain deductions being made from the retiral dues. Petitioner retired from the services of the Board as a Senior Store Keeper with effect from 31.12.2006. He happened to be the General Secretary of the Bihar & Jharkhand Patna High Court CWJC No.6972 of 2007 (07) dt.14-02-2013 - 2 - State of Electricity Field Kamgar Union. The grievance of the petitioner is two fold. The first is with regard to deductions from his retiral dues on account of wrong pay fixation and second with regard to certain other deductions, being deductions in respect of interest on housing loan, medical expense, traveling allowance and motorcycle advance. In the counter affidavit, the stand taken by the Board is that being a Union Leader, petitioner had managed to avoid his liability. Some were detected prior to his superannuation. He was informed and some were then corrected and calculated after his superannuation. The Board stated that the petitioner had been given Rs.1,10,000 as housing loan. He was required to repay the capital in equal installments and pay interest on the outstanding. He paid the capital in installments much less than required and did not pay a single paisa as interest for the entire period. The deduction is on that account. Petitioner is unable to challenge this statement. Thus, petitioner cannot challenge the deductions on this account. Next, there is deduction in respect of medical expenses. The Board has clearly stated that the petitioner had taken advance for medical expenses, having not submitted full accounts thereof, the balance had to be adjusted against his dues as Patna High Court CWJC No.6972 of 2007 (07) dt.14-02-2013 - 3 - he had not refunded that amount. Again petitioner is not in a position to contest the same. Thus, even this deduction cannot be faulted with. Next deduction is in respect of traveling allowance. The situation is same as that of medical allowance. The last on this account being a loan advanced to the petitioner for purchase of motorcycle. It is stated that there were dues which the petitioner did not clear and the loan remained outstanding, that is, what has been sought to be recovered as before, petitioner has no explanation. Thus, the Board cannot be faulted for the said deductions. Now, remains the dispute with regard to wrong fixation of pay and recovery of the amount. Learned counsel for the petitioner submits that wrong fixation of pay was not because of any fraud or wrong information submitted by the petitioner. He submits that there are no particular as to how the pay was wrongly fixed and even otherwise no recovery could be ordered after his superannuation. On the other hand, Mr. Dharmeshwar Mishra, learned counsel appearing for the Board points out with reference to Annexure-3, as filed by the petitioner himself, that long before petitioner superannuated he had been informed that his pay has Patna High Court CWJC No.6972 of 2007 (07) dt.14-02-2013 - 4 - wrongly been fixed because he had not cleared the Hindi Noting and Drafting Examination. From Annexure-3, as appended by the petitioner, this is clear. Recoveries were also partly made as far back as in 2004 on this account from the petitioner. It is submitted that petitioner, being a Union Leader, had evaded or managed to evade re-fixation of the pay at appropriate time. He cannot now urge that corrections cannot be made. Learned counsel for the petitioner has placed reliance on the case of Syed Abdul Qadir Vs. State of Bihar (2009) 3 Supreme Court Cases 475. On the other hand, Mr. Mishra has placed reliance on the recent judgment of the Apex Court in the case of Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. since reported in (2012) 8 Supreme Court Cases 417 which has considered the judgment earlier rendered in the case of Syed Abdul Qadir (supra). Thus, on behalf of the Board, it is submitted that petitioner, having failed to clear the said examination, cannot claim that his pay could not be revised. Having considered the matter, in my view, the contention on behalf of the petitioner cannot be sustained. From Annexure-3 as appended by the petitioner himself, it is clear that petitioner had been disclosed that his pay had wrongly been fixed because he had not passed the Hindi Noting and Drafting Patna High Court CWJC No.6972 of 2007 (07) dt.14-02-2013 - 5 - Examination. This was long before he had superannuated. Petitioner has not challenged either the applicability of these Rules nor the fact that he had in fact passed the said examination. The Bihar Government Servant (Hindi Test) Rules, 1968 has been held to be mandatory by this Court in several judgments. It clearly provides that till a Government employee, who is required to make notes in course of his employment in Hindi, does not pass this examination, he shall not be given any increment. These Rules are applicable to all Government Corporation. These Rules are applicable to the employees of the Board as well. Thus, the petitioner, not having cleared this examination, was not entitled to any annual increments. From Annexure-3, it would also be apparent that the calculation and payment liability for the period of suspension of 31 months, petitioner had been informed that for all those 31 months he could not be paid the pay as fixed and, accordingly, deductions were clearly shown on account of non- passing of the said examination. Petitioner accepted that position and received payments. Even today, he has not challenged that position. That being there, this Court cannot, but find that the petitioner had not passed the said examination and, as such, was not entitled to increments. If that be so then it necessarily follows that the pay had to be revised. It had to be corrected. Correction Patna High Court CWJC No.6972 of 2007 (07) dt.14-02-2013 - 6 - was due and the reason was known to the petitioner. Thus, insistence that his retiral dues be paid on the basis of last pay certificate or for that matter no recovery can be made from his retiral dues for the excess payment made cannot be accepted. Now, coming to the judgment aforesaid in the case of Chandi Prasad Uniyal (supra) the Apex Court has clearly held that the right of an employer to correct and recover cannot be restricted. There are only two exceptions as noted by the Apex Court in paragraph-15 of the reports. The two exceptions are the corrections are made and recoveries ordered after superannuation or corrections being sought to be made at very distant point of time. In the present case, it is apparent that petitioner knew of this correction while in service tenure itself. He did not protest. He knew the reason, he did not contradicted. Substantial deductions were made then he did not challenge it. Now, immediately upon his superannuation, while settling the accounts, amounts are being deducted and his pay scale corrected, he cannot, thus be heard protesting. Thus, the deductions as made and the pay scale as re- determined cannot be faulted. This writ petition, thus, merits no consideration and is dismissed as such. Trivedi/- (Navaniti Prasad Singh, J.)