S.M. Abdul Quadir and ors. Vs. Bihar State Electricity Board and ors. - Court Judgment

Excerpt:
service laws - retiral benefits--employees of bihar state electricity board--petitioners retired from the place presently falling within the territorial jurisdiction of jharkhand state electricity board under bihar re-organisation act, 2000--liability to pay such due not determined--liabilities and assets of the two boards was to be directed in accordance with the principle agreed between both the state--petitioners not made to suffer for their fault--hence, till the liabilities are finally determined, the respective board should pay the persionary dues including arrears to the employee retired from the area now falling under them subject to final accounting/adjustment of their liabilities bihar re-organisation act, 2002--section 62(4). - - 13. i failed to appreciate as to how eighth..... radha mohan prasad, j. 1. as in all these writ petitions, grievance of the petitioners relates to pensionary dues and the question involved is common, with consent of the parties, they have been heard together for final disposal.2. in all these writ petitions, petitioners superannuated from the service of the bihar state electricity board, hereinafter referred to as 'b.s.e.b.' before creation of jharkhand state electricity board, hereinafter referred to as 'j.s.e.b.' from the places presently falling in the territorial jurisdiction of jharkhand state electricity board except in the case of petitioners in cwjc nos. 10476 and 10524 of 2002, who superannuated after creation of j.s.e.b., but from the area presently falling in the territorial jurisdiction of the b.s.e.b. all the petitioners.....

Judgment:

Radha Mohan Prasad, J.

1. As in all these writ petitions, grievance of the petitioners relates to pensionary dues and the question involved is common, with consent of the parties, they have been heard together for final disposal.

2. In all these writ petitions, petitioners superannuated from the service of the Bihar State Electricity Board, hereinafter referred to as 'B.S.E.B.' before creation of Jharkhand State Electricity Board, hereinafter referred to as 'J.S.E.B.' from the places presently falling in the territorial jurisdiction of Jharkhand State Electricity Board except in the case of petitioners in CWJC Nos. 10476 and 10524 of 2002, who superannuated after creation of J.S.E.B., but from the area presently falling in the territorial jurisdiction of the B.S.E.B. All the petitioners are aggrieved, some on account of non-payment of retiral dues at all and some on account of non-payment of arrears of their retiral dues in the revised scale. Petitioners of C.W.J.C. No. 10476 and 10524 of 2002 are getting their pension in the revised scale, but, they are aggrieved only on acpount of non-payment of their arrears in the revised scale.

3. I consider it useful to quote the date of retirement and place of posting of the petitioners hereinbelow :

CWJC No.

Name of petitioner

Date of retirement

Place of posting7548/2002

S.M. Abdul Quadir

31-01-1995

Dhanbad

9835/2002

Devendra Singh

31-05-2000

Daltanganj

10369/2002

Devendra Singh @ Devendra

31-10-1997

Buxar

10476/2002

Ram Chandra Pd. No. 3

30-11-2000

Patna

10542/2002

LiladharThakur

31-03-2001

Patna

4. A counter-affidavit has been filed on behalf of B.S.E.B. and its officials (Respondent Nos. 1 to 3). But, despite service of notice, no counter-affidavit has been filed by any other Respondent inpluding Government of India and Jharkhand State Electricity Board. The Respondents, however, do not dispute that the petitioners having retired from the service are entitled for payment of retiral dues.

5. The only issue raised by the B.S.E.B. is that so long apportionment of liability is not finally determined, they are unable to make payment of retirardues Of the employees including the petitioners, who retired from the place presently falling within the territorial jurisdiction of Jharkhand State Electricity Board and even the arrears on account of revision to the employees who retired from the place presently falling in the territorial jurisdiction of Bihar State Electricity Board.

6. It has been submitted by Mr. Jha, learned Counsel for the B.S.E.B. that if a comparative study is made of the revenue collection and expenditure by erstwhile B.S.E.B. and corresponding revenue collection including arrears standing before creation of J.S.E.B. which now is being collected by J.S.E.B. from the area falling in their territorial jurisdiction, it would be manifest that there has been sharp fall in the revenue in the Bihar State Electricity Board whereas J.S.E.B. has been given right to collect huge amount of arrears standing before its creation from the area falling in their territory. He submitted that the past liabilities of the erstwhile B.S.E.B. even in regard to pensionary benefits and arrears have to be shared between them and the J.S.E.B. which having not been done so far and this has also led to acute financial crunch in the B.S.E.B. which is unable to meet even the present liability.

7. According to Mr. Shivendra Kishore, learned Counsel appearing for Jharkhand State Electricity Board these writ petitioners are premature as adjudication process with respect to apportionment Is yet pending consideration before the Central Government. However, he, further, submitted that in view of the order dated 26-9-2002 passed by the Division Bench of Jharkhand High Court in L.P.A. No. 355 of 2002 and analogous cases, it is the liability of Bihar State Electricity Board to pay the retiral dues of the petitioners, who admittedly retired prior to 15-11-2000 subject to determination of the liability upon which the respective Board will have to reimburse to the other Board.

8. Learned Counsel for the Bihar State Electricity Board, in reply, has submitted that the direction given by the Division Bench and the undertaking recorded therein was confined to the writ petitioners and not for any other retired employees as is evident from the last sentence of the order, wherein it was made clear that the directions given therein shall apply only to the writ petitioners and not any other retired employees. He further submitted that in view of the figure of the retired employees already given earlier, it is not possible for the Board to meet the liability for payment of the retiral dues with respect to other employees as per the said direction and until the process of apportionment is completed.

9. Learned Counsel for the petitioners has submitted that the petitioners retired from the service long back and the pendency of the so-called adjudication process has already taken over two years and may take further long time, but, the petitioners cannot be made to suffer on account of delay in fixing the liability of the respective Board. Learned Counsel further submitted that in fact the liability stands determined vide agreement dated 5-3-2001 (Annexure-G) and only details are to be worked out for which both the Respondent-Boards are only responsible and none-else.

10. I find substance in the submissions of learned Counsel for the petitioners. Undisputedly, Jharkhand Government issued a notification on 10-1-2001 creating Jharkhand State Electricity Board under the provisions of Section 1(4) of the Electricity (Supply) Act, 1948 read with Section 62(4) of the Bihar Reorganisation Act, 2000 and requested the Central Government to make provisions enabling the new Board to take over from existing Board all or any of its undertakings, assests, rights and liabilitites in that State. The Central Government held a meeting with the representatives of the Government of Bihar, Bihar State Electricity Board and the Government of Jharkhand on 5-3-2001 to ascertain their views on the subject matter. The minutes of the meeting dated 5-3-2001 has been annexed as Annexure-G to the Counter affidavit filed by B.S.E.B. in C.W.J.C. No.7548 of 2002. The Central Government in exercise of the power conferred upon it by Clause (a) of Sub-section (4) of Section 62 of the Bihar Reorganisation Act, 2000 made the following provisional order :

'(1) In this Order-

(a) 'Existing Board' means the Bihar State Electricity Board continued under Sub-section (1) of Section 62 of the Bihar Reorganisation Act,2000;

(b) 'Ratio of Consumption of Power' means 54:46 between Bihar and Jharkhand subject to confirmation of actual figures.

(2) The assets, liabilities, rights and undertakings of the existing Board shall be allocated provisionally with effect from 1-4-2001 in the following manner;

(i) Assets:

(a) Fixed assets (land and buildings, installed plants and machinery, transmission and distribution systems, eta) situated in the respective state will pass on to the respective S.E.Bs. as agreed between both the States on 5-3-2001.

(b) Movable assets and stores belonging to the field units will be transferred on the basis of location. Project/scheme specific stores will be allocated to the concerned SEBs. Furniture and vehicles of the Head Office will be apportioned according to the year of purchase in the ratio of consumption of the power.

(ii) Liabilities :

Liabilities of the existing Board will be apportioned between the Boards of Jharkhand and Bihar in the ratio of consumption of power as agreed between the two States in the meeting of 5-3-2001. (iii) Rights :

SEBs will have the right to collect revenues/arrears from consumers located within the territory of the concerned State.

(iv) Contracts/Undertaking :

Contracts will be assigned to the Board to whom the scheme, or assets, for which contract has been entered have been transferred.

(vi) Employees :

Employees and the vacant posts of the existing Board shall be allocated in the ratio of consumption of power between the SEBs of Jharkhand and Bihar.

As agreed by the two States in the meeting dated 5-3-2001, a Committee of five members will be constituted within 30 days to examine the issues concerning division of staff and vacant posts on the basis of ratio decided above. Two members each of this Committee will be nominated by the two States. The Chairman of the Committee will be appointed by consensus between the two State Government, failing which by direction of the Government of India. The Committee would give its report within 45 days. It is also ordered that pending the formal division of staff between the two Boards, the existing staff will continue to work on as is where is basis and transfer and posting will be frozen except with the consent of the two Governments.'

11. By virtue of the said order dated 22nd March, 2001 (Part of Annexure-G) Jharkhand State Electricity Board, in fact, became functional with effect from 1-4-2001. Both the Boards have been given right to collect revenue/arrears from consumers located in the territory of concerned State. It is true that no specific provision has been made for payment of the pensionary dues as obviously it is a liability and is covered by sub-paragraph (ii) dealing with the 'liabilities' which provides that liabilities of existing Board will be apportioned between the Boards of Jharkhand and Bihar in the ratio of consumption of power as agreed between the two States in the meeting of 5-3-2001. The ratio of consumption of power as per paragraph 1 of the said order means 54:46 between Bihar and Jharkhand subject to confirmation of actual figures. Thus, the liability of both the Board stands determined by the Central Government subject to only confirmation of actual figures.

12. Learned Counsel for J.S.E.B, submitted that as per the provisions contained in Section 62 read with Eighth Schedule of Bihar Reorganisation Act, 2000, the liabilities in respect of pensionary dues of employees retiring from the area now forming part of J.S.E.B. and whose claims are outstanding immediately before that day is of Bihar State Electricity Board.

13. I failed to appreciate as to how Eighth Schedule is at all relevant with respect to the employees of the Board. The said provision deals with the liabilities of the existing State of Bihar in respect of pension and other retirement benefits or apportionment thereof and not with respect to the employees of the Board and Corporation for whom there are separate provisions contained in Part VII of the Act. Section 62 specifically deals with the Bodies Corporate such as Bihar State Electricity Board, State Warehousing Corporation and State Road Transport Corporation constituted for the existing State of Bihar. Sub-section (3) provides that the Board or the Corporation referred to in Sub-section (1) shall case to function as from and shall be deemed to be dissolved on such date as the Central Government may, by order, appoint; and upon such dissolution, its assets, rights and liabilities shall be apportioned between the successor State of Bihar and Jharkhand in such manner as may be agreed upon between them within one year of the dissolution of the Board or the Corporation, as the case may be, or if no agreement is reached, in such manner as the Centra! Government may, by order, determine. Sub-section (4) provides that nothing in the preceding provisions of this Section shall be construed as preventing the Government of the State of Bihar or, as the case may be, the Government of the State of Jharkhand from constituting, at any time on or after the appointed day, a State Electricity Board or a State Warehousing Corporation or a Road Transport Corporation for the State under the provisions of the Act relating to such Board or Corporation; and if such a Board or Corporation is so constituted in either of the States before the dissolution of the Board or the Corporation referred to in subsection (1)(a) provision may be made by order of the Central Government enabling the new Board or the new Corporation to take over from the existing Board or Corporation all or any of its undertakings, assets, rights and liabilities in that State. Clause (b) of Sub-section (4) however, provides that upon the dissolution of the existing Board or Corporation any assets, rights and liabilities which would otherwise have passed to that State by or under the provisions of Sub-section (3) shall pass to the new Board or the new Corporation instead of to that State and under its Clause (ii) any employee who would otherwise have been transferred to or re-employed by that State under Sub-sebtion (3), read with Clause (i) of Sub-section (5), are to be transferred to or re-employed by the new Board or the new Corporation instead of to or by that State. The said two provisions contained in Sub-section (3) and Sub-section (4) deal with the two contingencies regarding creation of the Board and Corporations aforementioned. Sub-section (3) provides for creation after dissolution of the existing Board and Sub-section (4) vests power in the respective Government to constitute the said Board and Corporations at any time on or after the appointed day under the respective provisions to the Act relating to them. The present cases are covered by Sub-section (4) as the State of Jharkhand has constituted Jharkhand State Electricity Board under the provisions of Section 1(4) of the Electricity (Supply) Act, 1948read with Section 62 (4) of Bihar Reorganisation Act, 2000, and the Centra! Government in exercise of power conferred by Clause (a) of Sub-section (4) of Section 62 of the Act made the provisions enabling J.S.E.B. to take over from the existing Board (B.S.E.B.) in the manner provided in the order dated 22nd March, 2001.

14. This Court has been informed that the Government of India vide Annexure-B to the counter-affidavit filed in CWJC No. 9835 of 2002 has referred the matter to the Chairman, Central Electricity Authority, New Delhi to ascertain the total liabilities and their classification as per criterion laid down in the order dated 22nd March, 2001. I failed to appreciate as to why the Government of India has referred the matter to the said Authority when there is no dispute that the liabilities and assets of the two Boards was to be divided in accordance with the principle agreed between both the States On 5th March, 2001 itself and it appears that further details were to be worked out by the two Boards and only in case of dispute that the Central Government under Clause (a) of Sub-section. (4) could intervene in the matter, The Central Government in exercise of the power under Clause (a) of Sub-section (4) of Section 62 have already made provisions allocating the assets, liabilities, rights and undertakings of the existing Board (B.S.E.B.) with effect from 1-4-2001 vide order dated 22nd March, 2001. It is true that the said order shows that allocation has been provisionally made, but under it the liabilities of the existing Board is to be apportioned between the two Boards in ratio of consumption of power 54:46 between Bihar and Jharkhand subject to only confirmation of actual figures.

15. It has rightly been pointed out by the learned Counsel for B.S.E.B. that the order passed by the Division Bench is only confined to the writ petitioners of the writ cases before their Lordships and not for any other retired employees. He has also rightly pointed out that 15-11-2000 cannot have any nexus for treating it as appointed day in view of the order of the Central Government dated 22nd March, 2001 by which allocation of assets, liabilities, rights and undertakings have been made effective from 1-4-2001.

16. Thus, in my opinion, for making it final with respect to the liabilities it was only for the two Boards to proceed for confirmation of actual figures with respect to ratio of consumption of power and if that has not been done for now over one year ten months the pensioners cannot be made to suffer for their fault However, as under sub-paragraph (iii) of paragraph 2 of the order of Government of India dated 22nd March, 2001 rights have been given to the respective Board to collect the revenues/ arrears from consumers located within the territory of the concerned State, I consider it equitable that till the liabilities are finally determined the respective Boards should pay the pensionary dues including arrears to the employees retired/retiring from the area now falling under them subject to final accounting/adjustment of their liabilities. This equitable principle has been decided keeping in view the geographical nexus on which the Central Government has given rights to collect revenues/arrears from the econsumers located within the territory of concerned State. This order shall be made applicable in the case of all pending claims of such employee including those who are already receiving pension and the respective Board shall discharge their liabilities with respect to them accordingly henceforth.

17. Writ applications are accordingly disposed of with a direction that the Respondent-respective Boards shall discharge their liabilities accordingly by determining the dues payable to all such pensioners and forward the relevant papers within one week to the Respondent concerned Board for payment and the concerned Board shall pay the admitted dues within a week thereafter, and, further this Court directs both the Boards to proceed for confirmation of actual figures with respect to ratio of consumption of power and determine their liabilities as per the aforementioned agreement dated 5th March, 2001 positively within one month, failing which this Court shall consider to initiate contempt proceeding suo motu.