Anil Kumar, aged about 64 years, son of Late Sheo Narayan Shaw, resident of v. 1. The State of Jharkhand 2. The Secretary, Urban Development and Housing Department, having
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 3279 of 2021 Anil Kumar, aged about 64 years, son of Late Sheo Narayan Shaw, resident of Deputy Shaw, resident of Deputy Para, P.O. & P.S. Lalpur, Dist. Ranchi, retired as Assistant Engineer from Ranchi Nagar Nigam, Ranchi … … Petitioner Versus 1. The State of Jharkhand 2. The Secretary, Urban Development and Housing Department, having its office at Project Bhawan, P.O. & P.S. Dhurwa, Dist. Ranchi 3. The Joint Secretary, Urban Development and Housing Department, having its office at Project Bhawan, P.O. & P.S. Dhurwa, Dist. Ranchi 4. The Municipal Commissioner, Ranchi Nagar Nigam, having its office at Kutchahery Chowk, P.O. G.P.O., P.S. Kotwali, Dist. Ranchi 5. The Deputy Administrator-cum-Drawing & Disbursing Officer, Ranchi Nagar Nigam, having its office at Kutchahery Chowk, P.O. G.P.O., P.S. Kotwali, Dist. Ranchi 6. The Accountant General, having its office at A. G. Office, P.O. & P.S. Doranda, Dist. Ranchi 7. Managing Director, BISCOMAUN, South Gandhi Maidan Raja Ji Salai, Patna, P.O. & P.S. Patna, Dist. Patna, State Bihar … … Respondents CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the Respondents
Legal Reasoning
--- : Mr. Anand Kumar Sinha, Advocate : Mr. Sreenu Garapati, Advocate : Mr. Sudhanshu Kumar Singh, Advocate : Mr. Shashank Shekhar, Advocate --- 15/18th June 2024 1. 2. Heard the learned counsel for the parties. This writ petition has been filed for the following reliefs: - “a. In the nature of Mandamus commanding upon the respondents particularly respondent no. 2, 4, 5 and 6 to send to this Hon’ble Court all records appertaining to the services of the petitioner as to why in spite of his retirement on and from 30.4.2017 as Assistant Engineer from Ranchi Nagar Nigam, Ranchi, as to why the respondents have in a most arbitrary and illegal manner not paid the arrear of the salary for which the petitioner is entitled for the period January 2006 till April 2017 and also send before this Hon’ble Court the reason and documents as to why even after retirement from the post of Assistant Engineer from Ranchi Nagar Nigam, Ranchi on and from 30.04.2001, the pension amount to which the petitioner is entitled has not been paid to him. b. Further a writ commanding upon the respondent to send to this Hon’ble Court as to why current pension is also not being paid to him and further as to why the benefits under the seven hand i.e. i. Pension ii. Gratuity iii. Leave Encashment iv. Group Insurance v. G.P.F. vi. Transfer Allowances after retirement vii. ACP & MACP has not been paid to him and further the respondent may be directed to explain as to why in spite of being entitled for MACP benefit of the petitioner on and from 5-7-2003 & 5-7-2013 why the same has not been granted to the petitioner and c. And a writ may be issued as against the respondents for their willful deliberate and harassment and humiliation to the petitioner and his family members interest # 18% along with having costs to be not imposed upon them and d. A further prayer is being made before this Hon’ble Court for a direction upon the respondents particularly respondent no. 4 to 6 to immediately and forthwith make payment of arrear of salary to which the petitioner is entitled on and from January 2006 till April 2017 e. A humble prayer is being made before this Hon’ble Court for a direction upon the respondents to immediately and forthwith make payment of all arrear of pension to which the petitioner is entitled on and from 1.5.2017 till 31.8.2021 f. And a humble prayer is being made before this Hon’ble Court for a direction upon the respondents to immediately and forthwith make payment of current pension amount to which the petitioner is entitled from the month in view of his service for the petitioner on and from 5.7.1983 till 30.4.2017 g. And a humble prayer is being made before this Hon’ble Court for a direction upon the respondent to immediately and forthwith make payment of the post retirement benefits of the petitioner under different heads which are as follows i. Pension ii. Gratuity iii. Leave Encashment iv. Group Insurance v. G.P.F. vi. Transfer Allowances after retirement vii. ACP & MACP h. A further prayer is being made before this Hon’ble Court for a direction upon the respondents to grant ACP and MACP benefits to the petitioner in view of the fact that in spite of being eligible for the same, same has not been granted to the petitioner. i. A further prayer is being made before this Hon’ble Court for a direction upon the respondents to immediately and forthwith make 2 payment of interest @ 18% P.A. for causing harassment and humiliation to the petitioner by way of non-payment of the entitlement amount of the petitioner. j. Further a prayer is also being made before this Hon’ble Court to impose heavy costs upon the respondent for non-payment of the entitled amount to an employee ever after 4 years of retirement. AND/OR Any other relief or reliefs as Your Lordships may deem fit and proper for which the petitioner is very much entitled under the facts and circumstances of the case and in the interest of justice.” Arguments of the petitioner 3. It is the specific case of the petitioner that the petitioner was initially appointed under Bihar State Co-operative Marketing Union Limited (BISCOMAUN) and vide Annexure-2 issued by the Urban Development Department, of the then State of Bihar, the services of the petitioner were directed to be placed on deputation to the State Government. 4. The learned counsel for the petitioner submits that thereafter the petitioner continued to work with the Urban Development Department even after bifurcation of the State of Jharkhand and attained the age of superannuation on 30.04.2017. He submits that the other employees who were similarly situated and their services were placed initially on deputation with the State Government were ultimately absorbed by the State Government and were treated to be State Government employees and post-retiral benefits were paid to them, but so far as the petitioner is concerned, the post-retiral benefits is not being paid on the ground that the petitioner is not an employee of the State Government. He submits that the petitioner has not received salary from 2006 onwards. He has submitted that the State Government has paid the salary of the petitioner till the year 2006. He submits that the financial condition of BISCOMAUN was poor and therefore the employees of BISCOMAUN were being placed in the services of the State Government by different orders and were ultimately absorbed and retired as State Government employees. 5. The learned counsel has also relied upon various judgments passed by this Court as well as Hon’ble Patna High Court. He has also referred to one judgment passed by the Hon’ble Supreme Court in SLP (C) Diary No(s). 42368/2017 arising out of the judgment and order dated 29.08.2017 passed in 3 L.P.A. No. 50 of 2017 in turn arising out of CWJC No. 7440 of 2013 passed by the High Court of Judicature at Patna. 6. The learned counsel submits that in view of the various judicial pronouncements, the petitioner is to be treated as an employee of the State Government and therefore the petitioner having worked and attained the age of superannuation is entitled for all the service benefits including arrears of pay and post-retiral benefits. Arguments of the respondent-State 7. Learned counsel appearing on behalf of the State while opposing the prayer has submitted that on the face of Annexure-2, the petitioner was placed on deputation. He has further submitted that no order has been placed on record absorbing the petitioner in the services of the State Government. The petitioner is not even seeking any direction from this Court for absorption of his services in the State Government. The learned counsel has submitted that the petitioner was repatriated to BISCOMAUN and BISCOMAUN also issued letter asking the petitioner to join but the petitioner did not join and insisted on working with the Urban Development Department of the State. 8. The learned counsel has further submitted that the judgments passed by the Hon’ble Supreme Court arise out of orders passed by the Hon’ble Patna High Court with respect to different persons and there is no material on record that the case of the petitioner stands on identical footing. He has also cited certain judgments passed by this Court. 9. The learned counsel submits that the petitioner is simply seeking a mandamus and unless the entire facts are considered by the authority and an appropriate order is passed with regard to the status of the petitioner as to whether the petitioner is an employee of State Government or is an employee of BISCOMAUN, the mandamus prayed for by the petitioner may not be granted. The condition precedent for payment of pension and other service benefit is that the petitioner should be an employee of the State Government. Arguments of the Respondent No. 4 4 10. The learned counsel appearing on behalf of the respondent No. 4 has submitted that the petitioner had worked with the respondent No. 4 for some time but he was transferred from one place to another and had continued to work under the State Government. The petitioner attained the age of superannuation while working under respondent No. 4. Rejoinder argument of the petitioner 11. At this, the learned counsel for the petitioner has submitted that the petitioner has placed on record all the orders of transfer and the details where the petitioner has worked under the State Government in different districts are already available in the writ records. Findings of this Court 12. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the core issue involved in the present case is that as to whether the petitioner is to be treated as a State Government employee or is to be treated as an employee of BISCOMAUN. Unless such an issue is decided by considering the various materials, the prayer of the petitioner seeking a mandamus upon the respondent with respect to his post retiral benefits and other service benefits cannot be granted. It appears that the petitioner has worked for a long period and it appears prima-facie that the petitioner has continued to work under Urban Development Department right from 1994. However, this is also subject to verification of the records. 13. In view of the aforesaid core dispute, this Court is not inclined to issue a mandamus as prayed for by the petitioner at this stage, unless the status of the petitioner is duly determined by the respondent No. 2 before whom the petitioner has already filed a representation as contained in Annexure-25 of the writ petition. However, the said representation was primarily for release of his service benefits. 14. In view of the aforesaid facts and circumstances, this writ petition is
Decision
disposed of enabling the petitioner to approach the respondent No. 2 by filing a detailed representation along with a copy of the writ records, a copy of this order and all the judgments which the petitioner seeks to rely upon. 5 15. Upon filing of such representation, the respondent No. 2 shall first determine the status of the petitioner as to whether the petitioner is to be treated as an employee of the State Government or an employee of BISCOMAUN. 16. For the purposes of arriving at such a decision, the respondent No. 2 will take into consideration the various judicial pronouncements as may be applicable to the petitioner. If so required, the respondent No. 2, shall take the assistance of a Government Advocate and pass a reasoned order after considering the materials placed before him within a period of three months from the date of filing of representation . The said authority will also take into consideration the case of other similarly situated persons which may be placed by the petitioner with foundational details. 17. The reasoned order be communicated to the petitioner through speed- post at the address which may be provided by the petitioner in the representation itself. If the petitioner is ultimately found to be entitled to be treated as an employee of the State Government, there can be no reason to withhold the service benefits which the petitioner is otherwise entitled in accordance with law. This would also be subject to the verification of the records of the petitioner. 18. This writ petition is accordingly disposed of with the aforesaid observations and directions. 19. Pending I.A., if any, is closed. Mukul (Anubha Rawat Choudhary, J.) 6