IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4381 of 2002 YOGESH KUMAR LABH Son of late Nand Kishore Labh, resident of Mohalla- Chakdanaria, P.S. Gardanibagh, Distt. Patna.............................................. petitioner Versus 1. THE BIHAR STATE HYDRO ELECTRIC POWER CORPORATION THROUGH ITS MANAGING DIRECTOR, SONE BHAWAN, BIRCHAND PATEL PATH, PATNA. 2. MANAGING DIRECTOR, BIHAR STATE HYDRO ELECTRIC POWER CORPORATION, BIRCHAND PATEL PATH, PATNA. 3. MANAGER PERSONNEL, THE BIHAR STATE HYDRO ELECTRIC POWER CORPORATION, SONE BHAWAN, BIRCHAND PATEL PATH, PATNA. 4. UNION OF INDIA THROUGH ITS DEVELOPMENT COMMISSIONER, SMALL SCALE INDUSTRIES ( MINISTRY OF INDUSTRY) , NIRMAN BHAWAN, NEW DELHI.......... Respondents. ----------- For the Petitioner :- Mr. Chitranjan Sinha, Sr. Advocate & Mr Sujit Kumar Sinha, Advocate For the Corporation :- Mr. S.P. Mukherjee, Sr. Advocate & Mr. O.P.Agrawal, Advocate For the Union of India :- Mr. Sarvadeo Singh, Advocate. ------------ 9 5-2-2009 Heard learned counsel for the petitioner, learned counsel for the Bihar State Hydro Electric Power Corporation Limited and also learned counsel for the Union of India. The dispute in the present writ petition lies within a very narrow compass. There is no dispute between the parties on material facts. The petitioner joined service as a Lower Division Clerk on 3-5- 1972 at Small Industries Service Institute, Muzaffarpur, an authority under the Union of India. In 1982 the respondent- Corporation was incorporated as a Company of State of Bihar. In 1983 the Corporation advertised for appointment of Sr. Accounts Clerk on deputation on - 2 - Foreign Service terms. The petitioner applied and after selection he joined the service of Corporation on deputation on 8-9-1983, initially for a period of one year. The deputation of the petitioner was allowed to continue for four years ending on 7-9-1987. The various documents annexed with the writ petition particularly, annexures 6 and 11 show that the Corporation found the service of the petitioner useful and satisfactory and made a request to his employer to give its consent so that petitioner could be permanently absorbed in the service of the Corporation on the higher post of Assistant Manager ( Accounts ). Ultimately after some correspondence the erstwhile employer of the petitioner informed the respondent-Corporation through annexure-11 dated 19th July, 1988 that the sanction of the competent authority for permanent absorption of the petitioner as Accountant in Bihar State Hydro Electric Corporation Limited, Patna had been obtained and the sanction for permanent absorption shall have effect from 8-9-1987. Although in principle the respondent- Corporation through its Board of Directors had decided to absorb the petitioner on the higher post of Assistant Manager but such post was not available with the Corporation and it was ultimately made available by downgrading one of the two posts of Deputy Manager in the year 1994. In the meantime although petitioner continued to work as Accountant, on the condition that he would be absorbed on the higher post which was not given effect to and ultimately petitioner had moved this court through a writ petition bearing C.W.J.C. No. 3267 of 1990. The said writ - 3 - petition was allowed on 13th October, 1998 vide order contained in Annexure-16. The impugned orders were quashed and a writ in the nature of mandamus was issued to the respondent- Corporation commanding them to absorb the petitioner to the post of Assistant Manager ( Accounts ) forthwith. In compliance of the aforesaid order of this court, by the impugned order contained in annexure-1 dated 17-12-1998 the Corporation absorbed the service of the petitioner on the post of Assistant Manager ( Accounts ) with effect from 13th October, 1998, the date of judgment contained in annexure-16. However, the order contained in annexure-1 contains a stipulation in Clause-4 that for services rendered by the petitioner under the Corporation prior to his absorption i.e. 13th October, 1998, the Corporation will not bear any responsibility either for gratuity, pension, leave pay, provident fund or Insurance etc. It is this clause-4 of annexure-1 which has been challenged by the writ petitioner on the ground that in the garb of accepting petitioner’s demand for absorption on the higher post of Assistant Manager ( Accounts ) as promised earlier to the petitioner, the Corporation is now seeking to disown the services rendered by the petitioner in the Corporation since 8-9-1987 when his deputation came to an end on account of request by the Corporation pursuant to which petitioner’s former employer gave its consent for absorption of the petitioner with effect from 8-9-87. According to learned counsel for the petitioner, since 8-9-87 petitioner ceased to be on deputation and therefore in spite of concern shown by the earlier employer regarding - 4 - status of the petitioner in the Corporation till 1990, petitioner’s service under earlier employer came to an end on 8-9-87 because permission to extend the deputation was not accorded and instead on the request of the respondent- Corporation sanction was granted for his permanent absorption in the Corporation with effect from 8-9-1987. On behalf of respondent- Corporation an attempt was made to show on the basis of Annexures B and C to their counter-affidavit that petitioner’s service under the old employer may not have come to an end on 8-9-87. This issue is not relevant in the light of admitted fact that petitioner’s deputation came to an end on 8-9-87 and thereafter he cannot claim to be employee of the earlier employer in absence of any permission or concurrence of the former employer. Considering the facts of the case, this Court finds that clause-4 of Annexure-1 is unwarranted and contrary to representation made by the Corporation on basis whereof petitioner ceased to be an employee on deputation. Now he has become employee of the Corporation with effect from 8-9-1987 and therefore he cannot be denied the benefits of being Accountant in the service of the Corporation and all the benefits of gratuity, pension, leave pay, provident fund, Insurance etc. in accordance with rules. This court would have considered to grant financial benefits to the petitioner by treating him lawfully entitled for the post of Assistant Manager ( Accounts ) at least from 18-3-1994 when such posts became available but the earlier order of the writ court contained in annexure-16 would come in the way because by that order - 5 - Naresh petitioner was directed to be absorbed on the post of Assistant Manager (Accounts) from the date of that order. On account of aforesaid discussions and findings the writ petition is allowed and clause-4 of Annexure-1 is quashed. Since petitioner has superannuated from service of the Corporation on 31st. January, 2003, it is expected that monetary benefits to which petitioner is entitled by this order would be given to him without any delay, preferably within three months from the date of production/ communication of a copy of this order. ( Shiva Kirti Singh,J)