Jharkhand State Electricity Board vs Bhuwaneshwar Mondal, Bihar State Electricity Board, Secretary, Bihar State Electricity Board and Joint Secretary, Bihar State Electricity Board

Sushil Harkauli, J.—The facts giving rise to this application seeking review of the judgment and Order dated 23.07.2009 may be summarized as follows. An order dated 12.05.2001 was passed by the Secretary, Bihar State Electricity Board (hereinafter referred to as ''BSEB'' for short), whereby certain payments made to the writ-Petitioner by way of pay and allowances were sought to be recovered from him on the ground that they were paid in excess of what was due. These excess payments had been ordered to be adjusted from the writ-Petitioner''s post retirement dues. W.P.(S) No. 2792 of 2003 was filed by the writ Petitioner challenging that order dated 12.05.2001.

The writ petition was allowed by the final judgment dated 23.07.2009 after hearing both, the Jharkhand State Electricity Board (hereinafter referred to as ''JSEB'' for short), and BSEB. The direction for recovery of the alleged excess payment was quashed, and it was further directed that the post retirement dues should be released/paid to the Petitioner by JSEB within eight weeks of the judgment.

The amounts were not paid and therefore a civil contempt case has been filed against the JSEB and its officers only (and not against BSEB or its officers), being Contempt Case (Civil) No. 771 of 2009, which is pending.

In the meantime, the JSEB has filed this Civil Review No. 121 of 2009, claiming that the liability to make payment of the post retirement dues to the writ Petitioner was that of BSEB and not of JSEB and accordingly, the judgment dated 23.07.2009 passed by Hon''ble Mr. Justice Amareshwar Sahay (who has since retired), should be reviewed and modified and the direction to make payment of post retiral dues should be issued to the BSEB instead of the JSEB. The BSEB has filed a counter affidavit.

I have heard learned Counsel for the BSEB as well as the JSEB at length.

The writ Petitioner retired, after attaining the age of superannuation, on 31.01.1999. At that time neither the State of Jharkhand nor the JSEB was in existence. Admittedly the writ Petitioner had retired from the service of BSEB, although his last posting was at a place which is now in the territory of the State of Jharkhand. The BSEB contends, on that basis, that the post retirement dues should be paid to the writ Petitioner by the JSEB.

The BSEB places reliance upon a decision dated 07.08.2007 passed by a learned Single Judge of this Court in W.P.(S) No. 7306 of 2006. A copy of the said decision has been enclosed as Annexure-F to the counter affidavit of BSEB. Reliance has also been placed upon a decision of another learned Single Judge of this Court in the case of Shashi Bhushan Prasad v. BSEB and Ors. 2009 (2) JLJR 29.

The unreported decision dated 07.08.2007 does not refer to any principle of law for adjudicating whether the liability would be of the BSEB or the JSEB.

The sole basis of the decision in the case of Shashi Bhushan Prasad (supra) is a Division Bench decision of this Court in the case of Akhileshwar Prasad v. Jharkhand State Electricity Board and Ors. 2006 (2) JCR 418 (Jhr) in which the Division Bench held that JSEB was liable to make the payment.

Thus, the reliance by BSEB is basically upon the said Division Bench decision in the case of Akhileshwar Prasad (supra).

It was brought to my notice by the learned Counsel for the JSEB that against the said decision of the Division Bench in the case of Akhileshwar Prasad (supra), an appeal was filed in the Supreme Court by the JSEB being Civil Appeal No. 5338 of 2006 which was decided by the Supreme Court by judgment dated 01.12.2006. The Division Bench was overruled by the Supreme Court because of a subsequent decision dated 03.11.2006 taken by the Government of India after hearing the Government of Bihar and also the Government of Jharkhand. The Supreme Court directed the parties to implement the said decision of the Government of India dated 03.11.2006.

In view of the said decision of the Government of India, as affirmed and implemented by the judgment of the Supreme Court, it was provided that employees who had retired before 01.04.2001 (called the date of dissolution), would be paid by the Board or its successor, from where such employees were drawing pension as on 01.04.2001.

Thus, it is a conceded position even by the learned Counsel for BSEB that if an employee had retired prior to 01.04.2001 and was drawing pension as on 01.04.2001 from a particular Electricity Board, he would continue to be paid by the same Electricity Board or its successor.

The Petitioner had retired in 1999 and if pension had started been paid promptly without delay, it would have been paid by the BSEB, because neither the State of Jharkhand nor the JSEB had come into existence by then.

Therefore, if the payment of pension had been started punctually as required by law, by the BSEB, the said Board would continue to be liable to make payment of the pension. However, the payment of pension was delayed not because of any fault on the part of the writ Petitioner, but because of a wrong order passed by the BSEB which was ultimately quashed by the High Court. Therefore, in my opinion, the BSEB cannot be permitted to take advantage of its own wrong and to deny the liability to make payment of the pension to the writ Petitioner, thereby discriminating between two employees of BSEB, one whose pension had been paid promptly after retirement and the other whose pension was delayed because of wrongful conduct of the BSEB or its officers.

Considering all the above, the review petition is allowed. The judgment of this Court dated 23.07.2009 is modified and it is made clear that the liability to pay the post retiral dues is of the BSEB and not of the JSEB. The BSEB will pay all the dues within a period of two months from today.