IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P ( S ) No. 4007 of 2007
Bharat Bhushan Prasad .... Petitioner
Versus
1. State of Jharkhand;
2. The Jharkhand State Electricity Board through its Secretary;
3. The Director (Personnel) JSEB, Dhurwa, Ranchi;
4. The General Manager cum Chief Engineer, Jamshedpur Electric
Supply Area, PO & PS Tata Nagar, East Singhbhum;
5. The Executive Engineer, Electricity Supply Division,
Jamshepdur, Electric Supply Area, PO & PS Tatanagar;
East Singhbhum ;
6. Bihar State Electricity Board, through its Secretary,
Patna .... Respondents
Coram : HON'BLE MR. JUSTICE D.G.R. PATNAIK.
For the petitioner(s) : Mr. Abhijeet Kumar Singh
For the respondent JSEB : M/s A.K.Pandey & Alka Sharma
For the BSEB : Mr. Manoj Tondon
15.09. 2009 By filing IA No. 2854 of 2009, the petitioner informs
that during the pendency of the writ petitioner he has retired from
service under the Board on 31.8.2008 and therefore he wants to add
further relief by way of amendment to the writ petition for issuance
of a direction to the respondents to pay his retiral benefits.
Considering the nature of the prayer and the fact
that the amendment would not change the relief sought for, prayer
for amendment to the writ petition is allowed. The IA No. 2854 of
2009 shall form part of the writ petition.
Heard the learned counsel for the petitioner and the
learned counsel for the respondent Jharkhand State Electricity Board
and the respondent BSEB.
The petitioner in this writ petition has prayed for
quashing the letter dated 24.3.2007 ( annexure 2) whereby increment
earlier granted to him has been cancelled, in pursuance of the order
no. 847 dated 30.9.2003. The petitioner has also prayed quashing of
the order dated 30.9.2003 ( annexure 3) whereby the penal provision
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has been given retrospective effect and the increment has been
sought to be withdrawn by way of recovery from the petitioner.
The petitioner has also prayed for direction to the
respondents to pay him the arrears of increment due from 5.8.89 to
5.9.1998
as also arrears of subsistence allowance @ 75% which was
allowed by memo dated 17.3.2002 since despite such order, 50% only
has been paid to the petitioner. Further prayer has been made for a
direction to the respondents to pay difference of arrears of pay scales
pursuant to the benefits of selection grade w.e.f. 5.8.1992 and that of
super selection grade from 8.5.2000 and lastly for payment of retiral
benefits.
The petitioner was originally appointed under the
respondent Bihar State Electricity Board and in due course, he was
posted as an Account Assistant in the Electricity Department,
Karandih, Jamshedpur, under the jurisdiction of the JSEB.
Earlier, he was placed under suspension by order dated
12.9.1998 and departmental proceeding was initiated against him. At
the conclusion of the proceeding, order of punishment of censure
and payment of subsistence allowance during the period of
suspension, was passed.
It is contended that on the relevant date, by virtue of the
Standing Order no 817 dated 2.6.1999 which was in force, the
petitioner was entitled for notional increment for the period of
suspension and accordingly, he was granted notional increment for
the period of suspension i.e. 12.9.1998 to 9.7.2001.
The grievance of the petitioner is that the benefit of
notional increments already paid to the petitioner has been abruptly
ordered to be withdrawn by order dated 24.3.2007 ( annexure-2 )
without giving any prior notice or opportunity of hearing to the
petitioner.
Learned counsel for the petitioner submits that as per the
contention of the respondents , the above order of withdrawal of
benefit of notional increment has been passed purportedly on the
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basis of the earlier order dated 30.7.2003 passed by the Bihar State
Electricity Board.
The petitioner has assailed both the impugned orders on
the ground that order dated 30.9.2003 does not apply to the
petitioner, since the said order was passed by the Bihar State
Electricity Board and after formation of the State of Jharkhand, the
aforesaid circular cannot be implemented against the employees of
the JSEB. It is further submitted that the aforesaid order of
withdrawal of notional benefits of increment with retrospective
effect is apparently penal in nature and the same cannot be given
effect to or acted upon by the respondnets. Furthermore, since in the
departmental proceedings, the petitioner has already been given
punishment by way of censure and payment of subsistence
allowance during the period of suspension, no further punishment
could be imposed by way of withdrawal of notional increment.
In the counter affidavit of the JSEB, the stand taken is that
the Jharkhand State Electricity Board, by notification dated 20.3.2001
has adopted all the rules, sub rules, ordinance of the Bihar State
Electricity Board, Patna which was issued under order of the JSEB. It
is sought to be explained that though the BSEB had allowed notional
annual increment to the petitioner in accordance with earlier circular
dated 2.6.1999, but such benefit has been withdrawn by the JSEB and
as such, the excess payment made to the petitioner is legally
recoverable from him for which necessary orders, vide annexure 2,
has been passed.
From the rival submissions, it is apparent that before
passing the impugned order of withdrawal of notional increment
granted to the petitioner and proceeding to recover the purported
excess amounts paid to him, no prior notice was given to him and he
was not given an opportunity of hearing. It also appears that the
petitioner has taken reasonable ground that the order of withdrawal
of benefit of the notional increment and recovery of the amount on
the ground of excess payment is in the nature of penal action and
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the same cannot be taken recourse to without affording the petitioner
a reasonable opportunity of hearing .
In the light of the above facts and circumstances, the
impugned order ( annexure 2) is hereby quashed. The matter is
remitted to the concerned authority of the respondent Jharkhand
State Electricity Board to reconsider the entire issue and to take an
appropriate decision within three months from the date of this order
and to communicate the decision taken to the petitioner effectively.
The respondents shall take decision also within the period stipulated
above on the petitioner’s claim for arrears of salary due for payment
as also the benefit of selection grade and super selection grade from
the date it fell due. Pending decision on the above issue, the
respondents shall assess and pay to the petitioner all the retiral
benefits which is due and payable to him since the date it fell due for
payment.
With the above observations, this application is disposed
of.
Let a copy of this order be given to the learned counsel
for the respondents.
Ambastha/ ( DGR Patnaik, J )