Dismissed

The Jharkhand State Electricity Board through Its Chairman v. Umesh Prasad Choudhary

Jharkhand HC3 Mar 2021LPA/280/2019

Case brief

AI extract

What is this about?

The High Court dismissed the Board's appeal against a Single Judge's order quashing the rejection of a retired employee's claims for gratuity and medical reimbursement. The Court held that remitting the pay-fixation issue was barred by the lapse of 18 years and the statutory prohibition on recovering un entitled amounts from gratuity.

What did the court decide?

The intra-court appeal was dismissed, and the order of the Single Judge directing payment of gratuity and medical reimbursement was affirmed.

The Jharkhand State Electricity Board… — Pension and Retirement Benefits | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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L.P.A. No. 280 of 2019

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with

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I.A. No. 1370 of 2020

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The Jharkhand State Electricity Board (Now J.U.V.N.L.) through its Chairman, Project Bhawan, P.O & P.S. – Dhurwa, District – Ranchi, through its Law Officer Arun Kumar Srivastava, Aged About – 52 years, son of late Sri R.K. Lal, resident of – Gas Godown Road, P.O & P.S. – Namkum, District – Ranchi (Jharkhand).

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..... Respondent No. 1/Appellant

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Versus

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1. Umesh Prasad Choudhary, S/o Late Mukhlal Choudhary, R/o – Second House, Behind Swapna Market, Bhagwanpur Chowk, P.O & P.S. – Muzaffarpur, DistrictMuzaffarpur. … Petitioner/Respondent

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2. The Secretary, Jharkhand State Electricity Board, Project Bhawan, P.O & P.S. Dhurwa, District – Ranchi.

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3. The General Manager-cum-Chief Engineer, Electric Supply Area, Jamshedpur, P.O & P.S. Bistupur, District – Singhbhum East.

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4. The Electrical Superintending Engineer, Electric Supply Area, Jamshedpur, Bikash Bhawan P.O & P.S. Adityapur, District Singhbhum East.

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5. Director of Accounts, Jharkhand State Electricity Board, Project Bhawan, P.O & P.S. Dhurwa, District – Ranchi.

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6. Accounts Officer, Electric Supply Area/Circle, Jamshedpur, P.O & P.S. Adityapur, District Singhbhum East. ... .... Respondents

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CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant : Mr. Pratyush Kumar, Advocate For the Res-writ petitioner:

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: Mr. Dhananjay Kr. Pathak, Advocate

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Oral Judgment Order No. 09 : Dated 3^rd March, 2021:

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With consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality.

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I.A. No. 1370 of 2020

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2. This Interlocutory Application has been filed for condoning the delay of 361 days, which has occurred in preferring this appeal.

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3. Heard learned counsel appearing for the parties.

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4. Having regard to the averments made in this application, we are of the view that the appellant was prevented by sufficient cause from preferring the appeal within the period of limitation.

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5. Accordingly, I.A. No. 1370 of 2020 is allowed and delay of 361 days in preferring the appeal is condoned.

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L.P.A. No. 280 of 2019

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6 . The instant intra-court appeal is preferred against the order/judgment dated 12.02.2018 passed by learned Single Judge in W.P. (S) No. 6492 of 2011, whereby and whereunder the writ Court while allowing the writ petition has quashed and set aside order dated 17.09.2005, by which the representation dated 23.06.2005 submitted by the writ petitioner, with regard to payment of recovered amount of gratuity, as also for payment against medical reimbursement, has been rejected; and the writ Court directed to make payment to the tune of Rs. 2,05,090/-

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on account of gratuity with interest from the date it became payable and further directed to make payment of Rs. 2,10,100/- on account of medical reimbursement within a period of six weeks.

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7. The brief facts of the case, which are required to be enumerated herein for proper adjudication of the lis , are as under:

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The writ petitioner joined services of Bihar State Electricity Board (now Jharkhand Urja Vikas Nigam Limited) on 22.02.1965 and after rendering satisfactory service of 37 years, he retired from services on 30.06.2003 on attaining the age of superannuation from the post of Assistant Electrical Engineer, Electrical Central Store, Jamshedpur. The respondents-Board, in terms of notification no. 275 dated 24.10.2000 had fixed the basic pay of the petitioner, on the basis of last basic pay drawn to the tune of Rs. 13,650/-.

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The writ petitioner, while in service of the respondents-Board, underwent Coronary Artery Bypass Surgery, for which, after duly abiding by the regulations and provisions as laid down by the Medical Attendance Rules, 2001 approved by Board’s Resolution No. 7773, he was admitted in one of the hospitals recognized by the said Rules and after being operated, he submitted the medical bills given by the hospital vide representation

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dated 15.06.2002 before the respondents-Board, but for a long period of time no step was taken for reimbursement of medical expenses borne out by him and the claim of the writ petitioner was not decided.

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In the meantime, the writ petitioner superannuated from services but after his superannuation, the payment of gratuity, G.P.F., Group Saving Schemes etc., which was payable to the writ petitioner, was stopped.

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Aggrieved thereof, the writ petitioner approached this Court by filing writ petition, being W.P. (S) No. 6532 of 2003, which was disposed of vide order dated 06.01.2004 directing the respondent-Board to release the sanctioned retiral dues of the petitioner within a period of two months. In compliance thereof, the respondentsBoard though released the retiral dues but after deducting major chunk of amount from it, as such, the writ petitioner moved this Court by filing contempt petition being Cont. Case (C) No. 1066 of 2004, which was dropped holding that grievance of the writ petitioner has substantially been complied with however, liberty was granted to the petitioner to question the illegal deduction before appropriate forum.

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With the liberty aforesaid, the writ petitioner submitted representation dated 23.06.2005 before the respondents-Board for redressal of his grievance with

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respect to illegal deduction from gratuity and commutation of pension and also for reimbursement of medical expense incurred by the petitioner during his service period, which was disposed of vide Memo No. 5038 dated 17.09.2005, whereby claims of the petitioner, with regard to payment of gratuity, commutation of pension and medical reimbursement, was denied.

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The writ petitioner, being aggrieved by order dated 17.09.2005, again approached this Court by filing writ petition, being W.P. (S) No. 6492 of 2011, wherein the respondents-Board have contested the case by filing counter affidavit justifying the reason for denial of the claim of the petitioner, inter alia , on the ground that actual last basic pay of the writ petitioner ought to have been fixed at Rs. 13,350 instead of Rs. 13,650, as such he got excess amount due to wrong fixation of pay and, therefore, the claim of gratuity and other retiral benefits was not disbursed in favour of the writ petitioner.

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The writ Court, after considering the provisions of Payment of Gratuity Act, 1972 as also provisions of Medical Attendance Rules, 2001, quashed the impugned order dated 17.09.2005 and directed to make payment towards gratuity and medical reimbursement bills, which is the subject matter of present intra-court appeal.

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8. Mr. Pratyush Kumar, learned counsel for the appellant at the outset has submitted that matter ought to have been remitted before the authorities concerned for fresh consideration on the issue of entitlement of pay of the writ petitioner as to whether he was entitled to get pay of Rs. 13,650 or Rs. 13,350, but the learned Single Judge has simply quashed the impugned order and directed to disburse the entire amount without considering the fact that it is not the issue of recovery from gratuity rather the matter pertains to wrong fixation of pay, which needs to be rectified.

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According to learned counsel, pay of the writ petitioner was wrongly fixed on the date of his retirement, but it is settled position of law that if any mistake has been committed that has to be rectified on the principle that illegality cannot allowed to be perpetuated.

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9. Per contra, Mr. Dhananjay Kumar Pathak, learned counsel for the writ petitioner, respondent no. 1 herein, has submitted that there is no illegality in the order passed by the learned Single Judge as learned Single Judge, after taking into consideration the impugned decision whereby and whereunder the issue pertaining to the non-disbursement of the amount of gratuity and medical reimbursement has been denied, and further taking into consideration the factual aspect of the matter

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vis-à-vis the legal position i.e. entitlement with respect to the medical entitlement since was based upon the Board Medical Attendance Rules, 2001 and further there cannot be any recovery from the gratuity, quashed and set aside the impugned order with a direction to disburse the said amount in favuor of the writ petitioner and since the matter was adjudicated by the learned Single Judge, there was no question of remitting the matter before the competent authority for fresh consideration on the issue of wrong fixation of pay that too now after lapse of 18 years after retirement of the writ petitioner.

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He has further submitted by refuting the contention agitated by learned counsel for the appellants-Board that if any mistake has been committed the same has to be rectified in order to rectify the wrong perpetuated but that position of law is not applicable in the facts and circumstances of the case as the same is to be taken into consideration within reasonable period of time but herein the liberty is sought for after lapse of 18 years from the date of superannuation of the writ petitioner and as such prayer for remitting the matter for consideration of matter afresh with respect to pay-scale cannot be said to be proper and justified, therefore, the instant appeal is fit to be dismissed.

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10. We have heard learned counsel for the parties, perused the documents available on record and also finding recorded by learned Single Judge in the impugned order.

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11 . Admitted fact herein is that the writ petitioner superannuated from service w.e.f. 30.06.2003 and on the date of superannuation, he was getting the basic pay of Rs. 13,650 but the appellant-Board is claiming that the writ petitioner was entitled to get pay-scale of Rs. 13,350/- and therefore, there was error in fixation of payscale, hence when the writ petitioner retired from service, the alleged excess amount paid due to wrong fixation of pay was recovered as also claim on account of medical reimbursement of the writ petitioner was denied.

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The writ petitioner has approached to this Court by filing writ petition being W.P. (S) No. 6492 of 2011 and the learned Single Judge after taking into consideration the fact that there cannot be any recovery from the gratuity in any circumstance unless the rule so provides and further if the writ petitioner was entitled for the medical reimbursement as per Medical Attendance Rules, 2001, the same cannot be denied, allowed the writ petition and directed to make payment within a period of six weeks from the date of receipt of copy of the order.

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12 . The appellant-Board has questioned the said order that the learned Single Judge after having passed order with respect to disbursement of amount claimed pertaining to gratuity and medical reimbursement, ought to have been remitted the matter before the competent authority for fresh consideration about fixation of pay, but having not done so, gross illegality has been committed.

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Learned counsel for the appellant has further submitted that it is well settled principle that illegality cannot be allowed to be perpetuated.

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13 . There is no quarrel over the settled position of law that if any illegality has been committed the same cannot be allowed to be perpetuated, but this Court is of view that the said principle is not applicable in the case at hand, as the writ petitioner has retired from services on 30.06.2003 and at the time of his retirement he was getting basic pay of Rs. 13,650 and it is only after his superannuation the respondents-authorities have raised the issue of consideration about wrong fixation of the pay-scale.

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Admittedly, the writ petitioner retired from services and he is leading the life of retired public servant for the last more than 18 years and, therefore, it would not be proper for this Court to remit the matter before the

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concerned authority for consideration of the fixation of the pay-scale after lapse of more than 18 years from the date of superannuation.

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Even accepting the principle that illegality cannot be allowed to be perpetuated but it is equally settled position of law that it is incumbent upon the State authorities to take a decision within a reasonable period of time. Reasonable period would not be said to be 18 years from the date of retirement of the public servant.

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14 . We have further found from the memo of appeal that the order passed by the learned Single Judge has been challenged in entirety meaning thereby entire order dated 17.09.2005 which has been interfered with by the learned Single Judge by quashing and setting aside, has been challenged by filing present memo of appeal but the appellant-Board at this stage has made a oral submission to remit the matter before the authority concerned.

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It is well settled position of law that Court of law cannot pass any direction upon the oral prayer that too after deviating from the pleading made in the memo of appeal.

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15 . This Court, in the facts and circumstances of the case and looking to the reasons assigned by the learned Single Judge for disbursement of the entire amount of gratuity, which is based upon legal position that Payment

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of Gratuity Act does not provide any provision to recover from the gratuity amount, and it being a Central legislation having overriding effect and further the nondisbursement of the medical reimbursement under Medical Attendance Rules has also been found to be illegal in view of specific provision under Clause 11(c) of Medical Attendance Rules which contains reference of hospitals at which treatment for life threatening diseases like cancer, heart disease etc. can be availed by an employee, which has been found to be complied with, is of the view that no interference is required to be made in the order passed by the learned Single Judge.

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16 . Accordingly, the present intra-court appeal fails and, is dismissed.

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(Sujit Narayan Prasad, J.)

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Alankar/ - A.F.R.

The Jharkhand State Electricity Board through Its Chairman v. Umesh Prasad Choudhary

Case brief

What is this about?

What did the court decide?

The Jharkhand State Electricity Board through Its Chairman v. Umesh Prasad Choudhary

Case brief

What is this about?

What did the court decide?

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