Disposed

Harihar Prasad v. the State of Bihar and Ors.

Patna HC26 Jul 2012CWJC/6706/2006

Case brief

AI extract

What is this about?

Petitioner challenged an order denying salary for 1997-98, claiming he worked until superannuation in 1998. Court held onus was on petitioner to prove service. Denied salary claim due to failure of proof and incorrect superannuation date. Directed authorities to settle payment of salary or pension to avoid deprivation of both benefits.

What did the court decide?

Petitioner not entitled to salary after 10.01.1997. Authorities directed to ensure petitioner receives either salary for period worked or pension for interregnum, not both.

Harihar Prasad Vs the State of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No 6706 of 2006

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====================================================== Harihar Prasad, son of late Sarju Prasad, resident of village – Tulsipur, P S – Husasganj, District – Jehanabad, at present residing at Guru Gobind Singh Hospital, Staff quarters, Patnacity, P S – Khazekalan, P O – Patnacity, District - Patna .... .... Petitioner/s Versus 1 The State Of Bihar 2 Secretary –cum- Commissioner, Industry Department, Bihar, Patna 3 Director of Industries Department, Bihar, Patna 4 The Deputy Director, Regional Industry Department (Tirhut Division), Muzaffarpur .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr Vivekanand Vivek Mr Binay Kumar Thakur For the Respondent/s : Mr S P Parasar, AC to GP 21 ====================================================== CORAM: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 3 26-07-2012 Petitioner challenges the order of the Director of Industries, as communicated to him under Memo No 1437 dated 16.06.2004 (Annexure 7) by which pursuant to directions of this Court and enquiry having been made, petitioner has been held not entitled to any salary for the period 10.01.1997 to 31.12.1998. Petitioner asserts that he was transferred to the Industries

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Department where he joined on 21.06.1996 and worked there till 31.12.1998 when he superannuated. He was, as such, entitled to the salary for the entire period not having been found absent.

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Petitioner states that he was appointed on 10.09.1969 on the post of Lower Division Clerk and posted in the Health Department. On 30.01.1996 he was promoted to the post of Section Officer and transferred to the Industries Department. He joined the Industries Department on 31.01.1996 and subsequently by the Industries Department, he was transferred as Administrative Officer to Regional Directorate of Industries, Muzaffarpur vide Memo No 1759 dated 15.03.1996 (Annexure 1). He joined at Muzaffarpur on 21.06.1996 having been relieved by the Health Department where he was originally posted on 14.06.1996 as per his own joining letter (Annexure 2). It appears while he was in the Industries Department, a notice had been issued to him as to why he should not be declared superannuated with effect from 31.12.1995 itself and the salary drawn by him thereafter be recovered. Undisputedly the basis of this notice was that as per matriculation certificate, petitioner’s date of birth was 01.01.1938 which would make him superannuate on 31.12.1995 but petitioner had managed to file an affidavit sworn before Executive Magistrate stating his date of birth to be 01.01.1941

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and, as such, claiming to superannuate with effect from 31.12.1998. This notice was apparently challenged by the petitioner before this Court in CWJC No 9879 of 1997. While the writ petition was pending, petitioner claimed that he superannuated on 31.12.1998. The writ petition was ultimately taken up and disposed of by order dated 05.08.1999 (Annexure 3) wherein noticing the plea of the petitioner that as petitioner had worked up to 31.12.1998, the authorities were not justified in taking steps for recovery of excess payment made to the petitioner. This Court, thus, ordered that as petitioner continued in service till 31.12.1998, it would not be justifiable to recover excess payment made to him till 31.12.1998. If we see the order, it is very clear that what was put up by the petitioner was that he had received payment till he worked and superannuated on 31.12.1998 and no effort to recover that should be permitted on the ground that he ought to have superannuated on 31.12.1995. To be more specific, the petitioner had raised no grievance whatsoever that for any period from 01.01.1996 to 31.12.1998 (three years), he had not been paid his remuneration nor he demanded any such remuneration. All he prayed was that the remuneration paid in this period should not be recovered from him which presupposed payment to him thereof. I will deal with this order subsequently as

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well.

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Once this writ petition was disposed of, he moved the authorities and here again, got an order from the Government that in view of the writ order, no recovery would be made in respect of salary paid in between the period 01.01.1996 to 31.12.1998 but it was also said in the said order that with effect from 01.01.1996, he will not be treated as being in service for any purpose. This order of the State is dated 30^th November, 1999 and is contained in Annexure 4 to the writ petition.

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After four years, petitioner filed another writ petition that is CWJC No 4689 of 2003. Here, his grievance was that for the period August, 1996 to December 1998, when he had worked, he must be paid his full remuneration. This writ petition was disposed of by judgment and order dated 11.07.2003 (Annexure 5). This Court did notice that the earlier writ petition was disposed of on a wrong notion that petitioner had been working till 31.12.1998. This Court noticed that it was a disputed question of fact whether petitioner worked between 1996 to 1998 or not which had to be determined by the authority. It also noticed that the Accountant General, in view of the finding of this Court given in the first writ petition that the petitioner had worked and superannuated with effect from 31.12.1998, fixed 01.01.1999 to be

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the starting point of his pensionary benefits. The writ petition was disposed of with a direction to the State to determine the liability in regard to the interregnum period and that is how impugned Annexure 7 has been passed.

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Learned counsel for the petitioner states that in fact there is nothing on record to show that the petitioner had not worked for the period in between 21.06.1996 to 31.12.1998. He was in fact at the Regional Directorate of Industries, Muzaffarpur. Learned counsel for the State points out from Annexure 7 itself that the reports were called for from the Director of Industries, Tirhut Pramandal, Muzaffarpur which clearly indicated that the petitioner had joined Muzaffarpur on 21.06.1996 but after 10.01.1997, he was traceless and not found working. Let it be noted that from the first writ petition and the order passed therein, it is apparent that it is sometime between the said period that he had been noticed as to why he be not deemed to have been superannuated on 31.12.1995 and, accordingly, he filed the writ petition.

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In my view, when petitioner has put up the claim that he had worked up to 31.12.1998, the onus was entirely upon him to establish that he had worked. In this writ petition, there is not a chit of paper to show even inferentially that

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petitioner was in the office after 10.01.1997. Petitioner even otherwise is not in a position to show any other document in this regard. To the contrary, reliance is placed on the order of this Court in the first writ petition. In my view, the said order has been clarified in the order, as passed in the second writ petition. Further, if petitioner had not been paid and was working, he should have made the prayer in the first writ petition itself but the order of the first writ petition shows that there he had created an impression that he had been paid right up to his superannuation that is 31.12.1998 and an effort to recover had been made. He had never raised the said claim in the said writ petition which claim was available to him. Apart from other things, the claim is, thus, barred by principles of constructive res judicata. In my view, this was a question of fact which the petitioner is required to have established. He cannot throw the burden on the State to prove that he was not present. In my view, petitioner has failed to discharge that onus and, as such, his plea that he was working up to 31.12.1998 cannot be accepted.

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There is yet another reason for this. As per petitioner’s matriculation certificate, his date of birth is 01.01.1938. Accordingly, Department had taken a stand that he would superannuate on 31.12.1995 for which a notice had also

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been issued to him which he had challenged in the first writ petition. Therefore, there was no occasion for the authorities to permit the petitioner to work beyond 31.12.1995 but petitioner did manage upon filing of affidavit to mislead the authorities into treating his date of birth as 01.01.1941, thus, claiming superannuation with effect from 31.12.1998. Thus, in my view, petitioner is unable to establish that he worked. It stands established that petitioner’s correct date for superannuation was 31.12.1995, as such petitioner not having worked beyond the admitted period that is beyond 10.01.1997, he is not entitled to any remuneration as salary after that date much less up to 31.12.1998. Thus, the relief sought for in the writ petition cannot be granted to the petitioner.

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At this stage, learned counsel sought leave to raise an alternative plea. He submitted that the pensionary payments started with effect from 01.01.1999. If that be so then what happens to the period between 01.01.1996 to 01.01.1999. During this period, if he is deemed to have superannuated with effect from 31.12.1995 then he is surely entitled to pension, as reduced by the amount he has received as salary for the period he had worked, i e, upto 10.01.1997.

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Having considered the matter, in my view, the

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prayer is just and equitable. The petitioner is either liable to salary or to pension for the said period between 01.01.1996 to 01.01.1999. He cannot be deprived of both for the aforesaid period. The stand of the State being that he had effectively superannuated on 31.12.1995 then petitioner becomes entitled to pension with effect from 01.01.1996 but as undisputedly petitioner continued to work up to 10.01.1997, for this period, he is entitled to his full salary. He would not get pension. His pension entitlement would, thus, notionally start from 01.01.1996 with actual payment to start after 10.01.1997. He would, thus, be entitled to claim and get pension for the period 11.01.1997 to 31.12.1998, as his regular pension, upon his own admission, started only with effect from 01.01.1999. The authorities are, accordingly, directed to take necessary steps in this regard.

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It is expected that the authorities would settle the issue and make payments to the petitioner within a period of three months from the date of production of a copy of this order before the Accountant General, Bihar, Patna.

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With this observation, the writ petition is disposed of.

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M.E.H./-AFR

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(Navaniti Prasad Singh)

Harihar Prasad v. the State of Bihar and Ors.

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Harihar Prasad v. the State of Bihar and Ors.

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