IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4761 of 2006 GANGADHAR JHA, Son of Late Gajandra Jha, resident of Village and Post-Office-Mogalia Purandaha, Police-Station-Dhamdaha, District-Purnea Versus 1. THE STATE OF BIHAR 2. The Director, Industry Department, Bihar, Patna. 3. The Executive Director, Bihar Industrial Regional Development Authority Darbhanga Ranga. 4. The Accountant-General, Bihar, Patna. ----------- 5 22.02.2010 Heard learned counsel appearing on behalf of the petitioner, learned counsel appearing on behalf of the State, learned counsel for the B.I.A.D.A. and learned counsel for the Accountant General. The petitioner who retired from the Class-IV post of Peon, is aggrieved by the order dated 9.3.2004(Annexure-4) passed by the Director, Industry, Bihar, respondent No.2 rejecting the claim of the petitioner for pension. Facts in brief are that the petitioner was appointed as a Peon in the Rural Industries Project under the Director of Industries in the year, 1976 only to be terminated under the order No. 572 dated 2.3.1976. The termination was reconsidered in the backdrop of the fact that no show cause notice was issued to the petitioner prior to his termination. Thus following the 2 principles of natural justice, the termination order dated 2.3.1976 was cancelled and the petitioner was appointed to the post of Peon from the date of his joining. The said order of appointment contained in memo No. 3092 dated 13.11.1976 is placed at Annexure-A of the Supplementary counter affidavit filed on behalf of the respondent No.2. Subsequently upon constitution of the Darbhanga Industrial Area Development Authority, the services of the petitioner and the like were transferred to the said authority under a Government decision contained in memo No. 12807 dated 15.6.1978. The petitioner continued to serve the authority and superannuated on 31.1.1998. It is indisputed that the petitioner has received the admissible amount of retiral benefits from the Industrial Area Development Authority. However, in relation to the claim for pension, the Executive Director of the authority vide letter dated 20.10.2003 (Annexure-2) directed the petitioner to fill up the pension form. The claim of the petitioner to draw pension was subsequently referred to the Director Industries 3 vide memo No. 101 dated 9.2.2004 (Annexure-3) for taking appropriate action at his level. The pension claim of the petitioner was rejected by the impugned order dated 9.3.2004 placed at Annexure-4 of the writ petition by the Director, Industries. Learned counsel for the petitioner submits that he has been wrongfully denied his pension and his pensionary entitlements to which he is entitled under the provisions of the Bihar Pension Rules. He further submits that no doubt his services were transferred to the Authority but that did not have an effect of being absorbed in the Authority and that the petitioner continued to remain a Government employee and was entitled to its retiral benefits as admissible to a retired State Government employee. Learned counsel with reference to the order of appointment placed at Annexure-A of the supplementary counter affidavit of the respondent No.2 and Annexure-6 to the supplementary affidavit submits that there are substantive evidence of the petitioner being a permanent government employee holding a 4 substantive post. Learned counsel thus submits that the petitioner is entitled to the post retiral benefits as is admissible to a State government employee and that the amounts received by way of retiral benefits from the Authority may be adjusted against his pensionery entitlement(s). Learned counsel for the State and learned counsel for the B.I.A.D.A. submit that the scheme under which the petitioner was working no doubt was under the Department of Industries but the same was temporary in nature and since the said scheme together with assets and liabilities were transferred to the authority then it would have an effect of transfer of services of the petitioner to the authority. The point thus which is sought to be canvassed by the respondent State and the Authority is that the transfer of the services of the petitioner was in the nature of absorption of his services in the Authority and that the petitioner having received retiral benefits from the Authority by settlement of his claims, nothing further survives in the matter. 5 An issue of delay has also been raised by the learned counsel for the State with reference to a judgment of this Court reported in 2001 (1) PLJR 630. The said appeal was dismissed by the Division Bench on grounds, firstly that there was no statement of the petitioner on record that he was a permanent government employee and secondly that the issue was raised after a lapse of more than eight years and which was not reasonably explained. The Division Bench taking into consideration the two aspects of the matter dismissed the appeal preferred by the writ petitioner. Learned counsel with reference to the impugned order issued in this regard submits that there is no delay in so far as the present writ petition is concerned for the reason that the issue was under the consideration of the respondent authorities and evidence whereof is placed at Annexures 2 to 4 of the writ petition whereunder the petitioner was not only invited to fill up the pension form but the matter was also referred to the State Government for taking appropriate decision in the matter and which ultimately resulted in the impugned order dated 9.3.2004 placed at Annexure-4 whereby the claim 6 of the petitioner was rejected. Learned counsel thus submits that no doubt the petitioner had superannuated with effect 1998 but as the issue remained in conscious consideration of the respondents, the delay is suitably explained moreso for the reason that the impugned order rejecting the claim of the petitioner was passed only on 9.3.2004. Learned counsel further submits that the case is also distinguishable on the ground that there is sufficient evidence of record to show that the petitioner was a permanent employee of the Government of Bihar. In my opinion, the case of the present petitioner is definitely distinguishable from the case which was subject matter of the decision rendered by the Division Bench referred to above. In fact, the case of the present petitioner is squarely covered by a Bench decision of this Court rendered in C.W.J.C. No. 13821 of 2004 (Upendra Thakur Versus State) dated 7.3.2005. The said judgment of the learned Single Judge of this Court was also affirmed in L.P.A. No. 344 of 2005 passed on 10.1.2008. Learned Single Judge taking into consideration a judgment rendered by a Division 7 Bench of this Court passed in C.W.J.C. No. 5092 of 1991 (Munan Pd. versus State of Bihar) dated 20.4.1993 and L.P.A. No.154 of 2004 (Kamal Bansh Narayan Singh Vs. State ) dated 12.2.2004 held that the services rendered by such of the persons holding substantive post in the State Government who were transferred to the Authority and superannuated therefrom, continued to remain State Government employees and were entitled to pension and pensionary entitlements as available to such employees, after taking into account the entire service rendered by them under the State as well as the Authority, to be paid by the State of Bihar. The judgments passed in the case of Kamal Bansh Narayan Singh (Supra) was upheld by the Supreme Court in Civil Appeal No. 1684 of 2005 dated 2.8.2007. In view of the position settled under the judgment(s) taken note of above, this writ petition is also allowed and the Director of Industries, respondent No.2 is directed to recalculate and refix the pension and other pensionary benefits to which the petitioner becomes entitled as a State Government employee and forwarded the same to the Accountant General within a period eight weeks from the date of 8 receipt/production of a copy of this order and whereupon the Accountant General is expected to issue authorization within a period of four weeks thereafter. It is expected that the entire exercise is completed within a period of three months. Needless to add that the amounts already received by the petitioner from the Authority as retiral benefits should be adjusted against the pensionary entitlements of the petitioner. The writ petition stands allowed. Bibhash (Jyoti Saran, J. )