Anand Singh Vs. Dhanbad Municipal Corporation Through Its Municipal Commissioner and Ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/72557
CourtJharkhand High Court
Decided OnJun-23-2016
AppellantAnand Singh
RespondentDhanbad Municipal Corporation Through Its Municipal Commissioner and Ors
Excerpt:
1 in the high court of jharkhand at ranchi w.p. (s) no. 3988 of 2013 ------- anand singh, son of late jadu singh, resident of village samlapur, baliapur, p.o saharpura, p.s. baliapur, district- dhanbad. ... petitioner vs. 1.dhanbad municipal corporation, dhanbad, through its municipal commissioner, rajendra market, bank more, p.o dhanbad, p.s. bank more, district: dhanbad. 2.municipal commissioner (previously nomenclatured as chief executive officer), dhanbad municipal corporation, rajendra market, bank more, p.o dhanbad, p.s. bank more, district: dhanbad. 3.executive officer, dhanbad municipal corporation, sindri anchal, sindri, p.o & p.s. sindri, district-dhanbad. … … ... respondents ------ coram: hon’ble mr. justice pramath patnaik ------ for the petitioner : mr. p.k. mukhopadhyay, advocate for the respondents : mr. indrajit sinha, advocate. ------ 08/ dated:23. d june, 2016 per pramath patnaik, j.: in pursuance to order dated 12.05.2016, mr. bijay kumar gupta, c.e.o., (extra charge), dhanbad municipal corporation, dhanbad appeared in person before this court. it is submitted that no body is in-charge of respondent no.2. 2. learned counsel for the respondents-corporation handed over the counter affidavit in the court. let it be kept on record. in such view of the matter, the personal appearance of respondent is dispensed with.3. heard mr. p.k. mukhopadhyay, learned counsel for the petitioner and mr. indrajit sinha, learned counsel for the respondents-corporation on the merit of the case.4. in the instant writ application, the petitioner has inter alia prayed for payment of arrears of salary from the month of 01.11.2004 to 30.04.2009, which has been recovered/held-up by the respondents raising age dispute after his retirement, and 2 other retiral dues along with interest, cost and damages and further for quashing order dated 23.06.2012 whereby the recovery of 35 months salary has been ordered by the respondents-corporation.5. on the basis of averments made in the writ application, learned counsel for the petitioner submitted that the petitioner was appointed on 05.04.1967 as anti maleria mazdoor taking his date of birth as 17.05.1951 and continued to work under the respondents till 30.04.2009 and he retired w.e.f 01.05.2009 on the strength of notice of retirement dated 11.10.2008. after retirement, when the respondents did not pay the retiral dues, the petitioner approached this court by way of filing w.p. (s) no. 1773 of 2010, which was disposed of directing the respondents to pay the admissible retiral dues of the petitioner by deciding the representation of the petitioner. even then when retiral dues was not paid, the petitioner filed contempt case (c) no. 766 of 2010. however, in the meantime, though the respondents paid 30 % of the retiral dues but for the first time in the contempt petition came up with a pleading in the show cause that the petitioner would have retired in october, 2004 as such he is not entitled for the salary of the period november, 2004 to april, 2009 since the medical board has assessed the age of the petitioner as 52 on 21.10.1998 and hence, the petitioner had to retire in the year 2004. it has further been submitted that in the show cause, the respondents annexed order dated 23.06.2012 whereby alleged excess salary of 35 months was ordered to be recovered from the petitioner. it has further been submitted that accordingly the retiral dues of the petitioner was re-assessed and reduced to rs. 2,12,963/-. 3 6. learned counsel for the petitioner submitted that as per the settled principles of law, the respondents cannot deny the payment of salary for the period, in which, the respondents have undertaken work from the petitioner and respondents have no authority or power to recover the amount salary against the period, in which, the petitioner has worked under the respondents. learned counsel for the petitioner further submitted that the respondents cannot change the date of birth of the petitioner in violation of mandatory provision of rule 96 of the bihar financial rules and that too after three years of his retirement.7. controverting the averments made in the writ application, learned counsel for the respondents-corporation submitted that claim of the petitioner has primarily been assessed on the basis of the fact that the petitioner ought to have retired on 31.10.2004 but continued in service till 30.04.2009. thereafter, age of the petitioner was assessed by the medical board, which has not been contested by the petitioner. moreover, it is settled principle of law that the mistake on the part of the respondents of any degree would not confer any right on the petitioner to get enhanced benefits. it has further been submitted that so far as benefits of a.c.p is concerned, the same is not applicable to dhanbad municipal corporation and benefit of 5th and 6th pay revision cannot be extended to the petitioner as he ought to have retired on 31.10.2004, when the said recommendation of 5th and 6th pay revision were not implemented by the respondents. learned counsel for the respondents-corporation submitted with vehemence that the petitioner is liable to refund the excess amount paid to him in lieu of salary and respondents-corporation is not liable to pay any amount to the petitioner. 4 8. on perusal of order dated 23.06.2012 passed by the chief executive officer, dhanbad municipal corporation, it appears that he has opined that entry of date of birth of the petitioner in service book appears to be filled up later as it has been made with different ink and even if the date of birth of the petitioner as 17.05.1951 is taken into consideration then he joined the services of nac at the age of 16, which is against the rule. in the order dated dated 23.06.2012 it has further been stated that according to the medical board constituted to ascertain the date of birth of birth of the petitioner, his age was 52 as on 21.10.1998, hence, according to the medical board he was to retire on 31.10.2004.9. be that as it may be, there is no gainsaying of the fact that the petitioner continued to discharge his duties till 30.04.2009 and the respondents have failed to establish the fact that even when the medical board has opined the date of birth of the petitioner in october, 1946 on 21.10.1998 then what prevented them to take necessary steps to stop the petitioner to continue in services till 30.04.2009. under such circumstances, the petitioner is entitled to get full salary for the period he continued to discharge his duties and no recovery of salary is to be taken place.10. view of this court gets fortified by the decision of hon'ble apex court passed in the case of state of bihar & ors vs. pandey jagdishwar prasad as reported in (2009) 3 scc117 in particular paragraphs 23, 24 and 30.11. so far as the question, how the period of 01.11.2004 to 30.04.2009 can be treated, i am of the view that there is glaring dispute regarding the date of birth of the petitioner and medical board much before his retirement assessed his date of birth in 5 october, 1946, hence, for computation of any retiral benefits that period ought not to be taken into consideration.12. in view of the discussions made in the foregoing paragraphs, order of recovery of rs. 2.12,963/- against 35 months excess salary issued vide order dated 23.06.2012 is hereby set aside the respondents are directed to pay the arrears of salary from the month of 01.11.2004 to 30.04.2009, if not already paid, as due and admissible. however, in circumstances of the case, it is made clear that the petitioner would only be entitled to fixation of retiral benefits as on the date of his actual date of retirement i.e.31.10.2004.13. with the aforesaid observations and directions, the writ petition stands disposed of. (pramath patnaik, j.) alankar/-
Judgment:

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 3988 of 2013 ------- Anand Singh, son of Late Jadu Singh, resident of Village Samlapur, Baliapur, P.O Saharpura, P.S. Baliapur, District- Dhanbad. ... Petitioner Vs. 1.Dhanbad Municipal Corporation, Dhanbad, through its Municipal Commissioner, Rajendra Market, Bank More, P.O Dhanbad, P.S. Bank More, District: Dhanbad. 2.Municipal Commissioner (previously nomenclatured as Chief Executive Officer), Dhanbad Municipal Corporation, Rajendra Market, Bank More, P.O Dhanbad, P.S. Bank More, District: Dhanbad. 3.Executive Officer, Dhanbad Municipal Corporation, Sindri Anchal, Sindri, P.O & P.S. Sindri, District-Dhanbad. … … ... Respondents ------ CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Petitioner : Mr. P.K. Mukhopadhyay, Advocate For the Respondents : Mr. Indrajit Sinha, Advocate. ------ 08/ Dated:

23. d June, 2016 Per Pramath Patnaik, J.: In pursuance to order dated 12.05.2016, Mr. Bijay Kumar Gupta, C.E.O., (Extra Charge), Dhanbad Municipal Corporation, Dhanbad appeared in person before this Court. It is submitted that no body is in-charge of respondent no.

2. 2. Learned counsel for the respondents-Corporation handed over the counter affidavit in the Court. Let it be kept on record. In such view of the matter, the personal appearance of respondent is dispensed with.

3. Heard Mr. P.K. Mukhopadhyay, learned counsel for the petitioner and Mr. Indrajit Sinha, learned counsel for the respondents-corporation on the merit of the case.

4. In the instant writ application, the petitioner has inter alia prayed for payment of arrears of salary from the month of 01.11.2004 to 30.04.2009, which has been recovered/held-up by the respondents raising age dispute after his retirement, and 2 other retiral dues along with interest, cost and damages and further for quashing order dated 23.06.2012 whereby the recovery of 35 months salary has been ordered by the respondents-corporation.

5. On the basis of averments made in the writ application, learned counsel for the petitioner submitted that the petitioner was appointed on 05.04.1967 as Anti Maleria Mazdoor taking his date of birth as 17.05.1951 and continued to work under the respondents till 30.04.2009 and he retired w.e.f 01.05.2009 on the strength of notice of retirement dated 11.10.2008. After retirement, when the respondents did not pay the retiral dues, the petitioner approached this Court by way of filing W.P. (S) No. 1773 of 2010, which was disposed of directing the respondents to pay the admissible retiral dues of the petitioner by deciding the representation of the petitioner. Even then when retiral dues was not paid, the petitioner filed Contempt Case (C) No. 766 of 2010. However, in the meantime, though the respondents paid 30 % of the retiral dues but for the first time in the contempt petition came up with a pleading in the show cause that the petitioner would have retired in October, 2004 as such he is not entitled for the salary of the period November, 2004 to April, 2009 since the medical board has assessed the age of the petitioner as 52 on 21.10.1998 and hence, the petitioner had to retire in the year 2004. It has further been submitted that in the show cause, the respondents annexed order dated 23.06.2012 whereby alleged excess salary of 35 months was ordered to be recovered from the petitioner. It has further been submitted that accordingly the retiral dues of the petitioner was re-assessed and reduced to Rs. 2,12,963/-. 3 6. Learned counsel for the petitioner submitted that as per the settled principles of law, the respondents cannot deny the payment of salary for the period, in which, the respondents have undertaken work from the petitioner and respondents have no authority or power to recover the amount salary against the period, in which, the petitioner has worked under the respondents. Learned counsel for the petitioner further submitted that the respondents cannot change the date of birth of the petitioner in violation of mandatory provision of Rule 96 of the Bihar Financial Rules and that too after three years of his retirement.

7. Controverting the averments made in the writ application, learned counsel for the respondents-corporation submitted that claim of the petitioner has primarily been assessed on the basis of the fact that the petitioner ought to have retired on 31.10.2004 but continued in service till 30.04.2009. Thereafter, age of the petitioner was assessed by the medical board, which has not been contested by the petitioner. Moreover, it is settled principle of law that the mistake on the part of the respondents of any degree would not confer any right on the petitioner to get enhanced benefits. It has further been submitted that so far as benefits of A.C.P is concerned, the same is not applicable to Dhanbad Municipal Corporation and benefit of 5th and 6th Pay Revision cannot be extended to the petitioner as he ought to have retired on 31.10.2004, when the said recommendation of 5th and 6th Pay Revision were not implemented by the respondents. Learned counsel for the respondents-Corporation submitted with vehemence that the petitioner is liable to refund the excess amount paid to him in lieu of salary and respondents-corporation is not liable to pay any amount to the petitioner. 4 8. On perusal of order dated 23.06.2012 passed by the Chief Executive Officer, Dhanbad Municipal Corporation, it appears that he has opined that entry of date of birth of the petitioner in service book appears to be filled up later as it has been made with different ink and even if the date of birth of the petitioner as 17.05.1951 is taken into consideration then he joined the services of NAC at the age of 16, which is against the rule. In the order dated dated 23.06.2012 it has further been stated that according to the Medical Board constituted to ascertain the date of birth of birth of the petitioner, his age was 52 as on 21.10.1998, hence, according to the medical board he was to retire on 31.10.2004.

9. Be that as it may be, there is no gainsaying of the fact that the petitioner continued to discharge his duties till 30.04.2009 and the respondents have failed to establish the fact that even when the Medical Board has opined the date of birth of the petitioner in October, 1946 on 21.10.1998 then what prevented them to take necessary steps to stop the petitioner to continue in services till 30.04.2009. Under such circumstances, the petitioner is entitled to get full salary for the period he continued to discharge his duties and no recovery of salary is to be taken place.

10. View of this court gets fortified by the decision of Hon'ble Apex Court passed in the case of State of Bihar & Ors Vs. Pandey Jagdishwar Prasad as reported in (2009) 3 SCC117 in particular paragraphs 23, 24 and 30.

11. So far as the question, how the period of 01.11.2004 to 30.04.2009 can be treated, I am of the view that there is glaring dispute regarding the date of birth of the petitioner and medical board much before his retirement assessed his date of birth in 5 October, 1946, hence, for computation of any retiral benefits that period ought not to be taken into consideration.

12. In view of the discussions made in the foregoing paragraphs, order of recovery of Rs. 2.12,963/- against 35 months excess salary issued vide order dated 23.06.2012 is hereby set aside the respondents are directed to pay the arrears of salary from the month of 01.11.2004 to 30.04.2009, if not already paid, as due and admissible. However, in circumstances of the case, it is made clear that the petitioner would only be entitled to fixation of retiral benefits as on the date of his actual date of retirement i.e.31.10.2004.

13. With the aforesaid observations and directions, the writ petition stands disposed of. (Pramath Patnaik, J.) Alankar/-