IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.9505 OF 2007 Rajendra Ram, Son of late Dhanurdhari Ram, Resident of Village Hasanchak, Harnaut, P.S. Harnaut, District Nalanda. ---------- Petitioner Versus 1. The Chairman, Bihar State Electricity Board, Patna. 2. General Manager cum Chief Engineer, Central Area, Bihar State Electricity Board, Patna. 3. The Electrical Superintending Engineer, Bihar State Electricity Board, Electrical Circle, Patna. 4. The Electrical Executive Engineer, Electric Supply Division, Barh, Patna. 5. The Chairman, Jharkhand State Electricity Board, Engineering Bhawan, Dhurba, Ranchi. 6. The Secretary, Minister of Power, Union of India. ------------ Respondents With CIVIL WRIT JURISDICTION CASE No.9529 OF 2007 Girish Nandan Prasad Verma, S/o late Yamuna Prasad, Resident of Village and P.O. Ghanshyampur, P.S. Auroi, District Muzaffarpur, presently residing at Mohalla Anand Kishori Nagar – Lakshmi Sagar (C/o Nand Kishor Thakur), P.S. LNMU Campus, District Darbhanga. ------------ Petitioner Versus 1. The Bihar State Electricity Board through its Chairman, Bailey Road, Patna. 2. The Chairman, Bihar State Electricity Board, Bailey Road, Patna. 3. The Secretary, Bihar State Electricity Board, Bailey Road, Patna. 4. The General Manager-cum-Chief Engineer, Mithila Area Board, Darbhanga. 5. The Accounts Officer (Fund), Bihar State Electricity Board, Bailey Road, Patna. 6. The Electrical Supdt. Engineer, Electric Supply Circle, Darbhanga. 7. The Electrical Executive Engineer, M.R.T. Division, Darbhanga. 8. The Accounts Officer, Mithila Area Circle, Darbhanga. ------------ Respondents With CIVIL WRIT JURISDICTION CASE No.9671 OF 2007 Hira Lal Choudhary, S/o Late Sukhdeo Choudhary, Resident of Village Sakrouli, P.O. Barhupar, P.S. Mohania, District Kaimur. ----------- Petitioner Versus 1. The Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna, through its Secretary. 2. The Chairman, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 3. The Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 4. The Joint Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 2 5. The Finance Controller-1, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 6. The Director of Accounts, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 7. The General Manager-cum-Chief Engineer, Magadh Electric Supply Area Board, Gaya. 8. The Electrical Superintending Engineer, Electrical Circle, Sasharam. 9. The Electrical Executive Engineer, Electric Supply Division, Kaimur. 10. The Assistant Electrical Engineer, Electric Supply Sub-Division, Kudra, Kaimur. --------- Respondents ******** For The Petitioner : MR. PRAFULL CHANDRA JHA, ADVOCATE (In CWJC No. 9505/07) For The Petitioner : MR. AMARENDRA NARAYAN, ADVOCATE (In CWJC No. 9529/07) For The Petitioner : MR. SHIW KUMAR JHA, ADVOCATE (In CWJC No. 9678/07) For The Respondent : MR. NAVIN PRAKASH, ADVOCATE (In all the cases) MR. VINAY KIRTI SINGH, ADVOCATE J.S.E.B. : MR. RAJENDRA KRISHNA, ADVOCATE MR. DHRUVA MUKHERJEE, ADVOCATE UNION OF INDIA : MR. SANJAY KUMAR, ADVOCATE ********* P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (22/04/2008) Mihir Kr. Jha, J. Heard learned counsel for the parties. 2. In all these writ applications, the three petitioners being the retired employees of the Bihar State Electricity Board (hereinafter referred to as the “Board”) have made a common prayer for payment of their retiral benefits. Infact, these three writ applications were heard earlier with a batch of four other writ applications being C.W.J.C. No. 9687 of 2007 (Bijay Kumar vs. The State of Bihar & Others), C.W.J.C. No. 9557 of 2007 (Jullis Raut vs. The Bihar State 3 Electricity Board & Others), C.W.J.C. No. 9929 of 2007 (Fudo Sah vs. The Chairman, Bihar State Electricity Board & Others) and C.W.J.C. No. 9953 of 2007 (Abu Ahad vs. The Bihar State Electricity Board & Others). 3. First of all it would be necessary for this Court to notice the factual matrix in brief giving rise to these writ applications. C.W.J.C. No. 9505 of 2007 4. The petitioner Rajendra Ram was appointed on the post of unskilled khalashi in the year 1964 in the Board and had retired from service on 31.01.2007. It has been stated that though his amount of leave encashment of 164 days were sanctioned by the concerned Executive Engineer vide his letter dated 12.02.2007 and the amount of Group Saving Scheme to the tune of Rs. 60,352/- by yet another order dated 12.02.2007 but the aforementioned amount as well as the amount of General Provident Fund, gratuity as well as the dues of the enhanced pay scale as per the accepted report of the Pay Revision Committee were not made to him even after six months of his retirement and as such this poor class-IV employee holding the post of khalashi had to file this writ application claiming the payment of his retiral benefits. C.W.J.C. No. 9529 of 2007 5. The petitioner Girish Nandan Prasad Sinha was appointed on the post of Electrician on 21.7.1969 4 and ultimately retired from the services of the Board on 31.01.2007 while holding the post of Foreman Grade-II. It has been stated by the petitioner that though the amount of gratuity to the tune of Rs. 3,37,475/- was sanctioned by the concerned Deputy Director, Accounts, Darbhanga but its payment was not made to him by the Accounts Officer, Darbhanga on the ground that funds for the same had not been made available by the Headquarters of the Board. It has further been stated that even when the amount of Group Saving Scheme to the tune of Rs. 60,345/- was sanctioned by the concerned Superintending Engineer, Darbhanga by order dated 19.03.2007, its payment had not been made on the ground of non-availability of funds. Likewise, the petitioner has also claimed that the Electrical Superintending Engineer had also sanctioned the payment of leave encashment for 180 days being the cash payment of salary in lieu of leave vide his order dated 17.3.2007 as contained in Memo No. 774, but again its payment was not made to him for want of funds. The petitioner has stated that in such circumstances, he was literally starved on account of non-payment of his retiral benefits and his grievances for payment of full retiral benefits having been not redressed, the petitioner has filed this writ application for payment of his amount of Group Saving Scheme, gratuity, General Provident Fund, differential of salary on account of enhancement of D.A. and overall interest on the 5 aforementioned dues. C.W.J.C. No. 9671 of 2007 6. The petitioner Hira Lal Choudhary while holding the post of Junior Accounts Clerk in the Board had superannuated on 31.08.2006 and it has been stated in the writ application that despite being sanctioned on his leave encashment of a sum of Rs. 91,686/- by an order dated 04.10.2006, its payment has not been made to him on the ground of non-availability of funds. Similarly, he has also raised a grievance with regard to non-payment of the amount of General Provident Fund which was unpaid to him till the date of filing of this writ application on 03.08.2007 i.e. after almost one year of his retirement. The petitioner has also made a complaint that the amount of Group Saving Scheme to the tune of Rs,. 54,977/- was paid to him on 12.03.2007 i.e. after nearly eight months of his retirement and as such he was entitled for payment of interest in terms of the Group Saving Scheme policy of the Board. Another grievance of the petitioner is that though the amount of Gratuity to the tune of Rs. 2,62,301/- was sanctioned, the said amount was never paid to him till the date of filing of this application and to top it all, he was also communicated that a recovery of Rs. 26,668/- is going to be made from the aforementioned amount of his gratuity on the ground of excess payment of his salary. The petitioner claims that his repeated representations for payment of his retiral benefits having 6 been not even answered, he had to file this writ application for payment of his full amount of leave encashment, D.C.R. Gratuity as well as General Provident Fund and interest on admitted payment of all the retiral benefits including Group Saving Scheme. 7. The individual grievances of the three retired employees in the aforementioned three writ applications for payment of retirement benefit are not confined to them and infact the batch of other four cases which were earlier heard together with these three cases and were disposed of on account of payments being made by the respondents during the pendency of the writ applications need to be noticed to highlight as to how badly and shabbily, the respondent Board is treating its retired employees nearly 15000 in number in the payment of their retiral benefits to them. 8. In this context, it would be found that in C.W.J.C. No. 9557 of 2007 the petitioner Jullis Raut being the Junior Lineman who was appointed initially in the year 1972 and had retired on 28.02.2007 had made a similar grievance with regard to non-payment of his retiral benefits such as General Provident Fund, leave encashment and Group Saving Scheme despite its being sanctioned by the concerned authorities vide their orders dated 21.03.2007, 31.03.2007 and 17.04.2007 respectively only on account of want of funds. His further grievance was that even his 7 monthly pension and gratuity were neither sanctioned nor paid to him despite completion of a period of six months from the date of his retirement. 9. The petitioner of C.W.J.C. No. 9929 of 2007, Fudo Sah, who had also superannuated on 30.11.06 from the service of the Board while holding the post of Junior Lineman had moved this Court with specific grievances that his amount of gratuity, leave encashment, General Provident Fund, Group Saving Scheme and full pension were not paid to him though the authorities at the local level had even sanctioned the amount of leave encashment to the tune of Rs. 80,004/-, amount of General Provident Fund to the tune of Rs. 1,84,787/-, Group Saving Scheme amount of Rs. 59,111/-. His grievance was that he was still being paid provisional pension @ 90 per cent even when there was no criminal case or disciplinary proceedings pending against him. 10. The petitioner of C.W.J.C. No. 9953 of 2007 Abu Ahad who had retired on 31.10.2007 while holding the post of Corresponding Clerk in the Board had moved this Court with a similar grievance of non-payment of his amount of General Provident Fund which even after being sanctioned was not paid to him for want of funds and even the amount of gratuity was withheld for no justifiable reason while issuing an order for sanctioning his amount of Rs. 2,76,091/- and giving orders for payment of Rs. 2,53,459/- 8 by seeking to make recovery of Rs. 22,632/- on the ground of payment of excess salary to him. 11. The facts of C.W.J.C. No. 9687 of 2007 is also quite similar inasmuch as the petitioner Bijay Kumar being the Store Clerk appointed in the year 1965 upon his retirement on 28.02.2007 having been denied payment of his retiral benefits had to move this Court for payment of his pension, gratuity, General Provident Fund, Group Saving Scheme, leave encashment etc. He too had a specific case that his claim for payment of all the retiral benefits were admitted inasmuch as there was no departmental proceeding or criminal are pending against him. 12. An affidavit has been however filed today by the counsel for the Bihar State Electricity Board (B.S.E.B.) wherein apart from many other things explaining its helpness in making payment of retirement benefit to its retired employees it has also been stated that the admissible payment of retirement benefit to the petitioners has already been made and the claim for their remaining benefit, if any, would be settled within a period of four weeks. 13. Learned counsel for the petitioners also accept this fact that during pendency of these writ applications, part of the retirement benefit has already been paid to the petitioners and they also expect that as per the assurance given to this Court, the remaining retirement benefit will also be paid to them by the Bihar State Electricity 9 Board (in short BSEB) or the Jharkhand State Electricity Board (in short JSEB). 14. Mr. Navin Prakash, learned counsel for the BSEB would, however, submit that this Court in order to ensure timely payment of the remaining retirement benefit to the petitioners and the similarly situated other pensioners of the erstwhile Bihar State Electricity Board which has since been bifurcated into the present BSEB and JSEB with effect from 1.4.2001 should direct the JSEB to pay their share of amount determined by the Government of Indian in compliance of the order of the Apex Court dated 1.12.2006 in Civil Appeal No. 5338 of 2006. 15. Mr. Rajendra Krishna along with Mr. Dhruva Mukherjee appearing for the JSEB has submitted that this dispute as with regard to the payment of the share of JSEB being subject matter of a pending original suit before the Apex Court in Suit No. 1 of 2005 as also in a writ application filed by the JSEB against the order of the Government of India dated 5.12.2007 need not be adjudicated by this Court in these writ applications involving the only question of payment of retirement benefit of the individual writ petitioners. 16. This Court infact on an earlier occasion, while hearing batch of these writ petitions noticing the plight of poor and helpless retired employees also in view of conflicting head on stand of B.S.E.B. and J.S.E.B. had 10 directed for impleadment of the Government of India and filing of its counter affidavit. 17. From such counter affidavit filed by the Central Government and other pleadings available on record, it becomes clear that such dispute between the BSEB and JSEB has been earlier raised and adjudicated by both the Patna High Court and the Jharkhand High Court. 18. The Patna High Court in the case of S.M. Abdul Vs. B.S.E.B. reported in 2003(1) PLJR 708 had held that it will be equitable that the BSEB and JSEB should pay the pensioners of the erstwhile Board who had retired on or before 1.4.2001 on the basis of their last place of retirement/death which would be subject to final accounting and adjustment. An appeal filed by the JSEB was dismissed by the Division Bench of this Court whereafter the matter was taken to Supreme Court in Civil Appeal No. 1652 of 2004 and was disposed of by an order dated 19.8.2004 on the basis of consensus arrived at between the BSEB and JSEB in the date of 27.12.2003. 19. Such consensus between the JSEB and BSEB dated 27.12.2003 was in fact recorded in the following terms.:- “1. It was agreed that both the successor State Electricity Boards i.e. successor Bihar State Electricity Board and successor Jharkhand State Electricity Board will pay retiral benefits to the employees who have retired from the present 11 territorial jurisdiction of the successor SEB’s irrespective of their date of retirement. This will be a temporary arrangement till and subject to the final division of assets and liabilities between the two Boards by the competent authority. This agreement will also be without prejudice to the outcome of the SLP filed by the JSEB in the Hon’ble Supreme Court in JSEB vrs. Abdul Quadir and LPA filed by Bihar State Electricity Board in the Hon’ble High Court, Ranchi in the case of Bihar State Electricity Board vrs. Jhabbu Pandit and others. This tentative agreement is being made as per the direction dated 12.12.2003 of Hon’ble High Court of Jharkhand, Ranchi in WP(S)/2272/2003 and 3317/2003 alongwith Contempt Case Nos. 998/2002, 562/2002 and 659/2003. It was agreed that this tentative decision will be submitted by both the parties in these cases on the next date of hearing fixed on 23rd January, 2004 and meanwhile, both the successor Boards will start disposing of the pending cases as per this tentative agreement, giving priority to cases pending in the Hon’ble High Courts of Patna and Ranchi, and the cases in which the compliance of orders of both the Hon’ble High Courts at Patna and Ranchi are pending compliance. 2. It was agreed that for the employees who continued in CPF scheme and who have retired after 1.4.2001 or were working in the present territorial jurisdiction of JSEB on 1.4.2001 and are still in service or the employees who have retired prior to 1.4.2001 from the present territorial jurisdiction of JSEB, but whose final payment of CPF was made by present JSEB-for all these cases the Regional CPF Trust will prepare the employees wise statement of balance in CPF Trust as on 31.03.2001 and will submit it to the Administrator, Bihar State Electricity 12 Board CPF Trust along with the statement of remittance and other documents, as required and Bihar State Electricity Board CPF Trust will transfer the outstanding balance for these employees as on 31.03.2001 along with up-to-date interest to the JSEB CPF Trust whenever it is formally created, or Regional CPF Trust of Ranchi, Patratu and Loyabad if the JSEB takes decision to that effect. 3. With respect to the employees who switched from CPF to General Provident Fund, on roll as on 1.4.2001, in the territorial jurisdiction of present JSEB the outstanding balance be calculated by both the successor boards, taking into account the withdrawals between 8.11.1987 and 31.03.2001, and shall be transferred to JSEB CPF Trust, whenever it is formally created. It was agreed that implementation of para 2 and 3 will be subject to the final decision of Regional Provident Fund Commissioner.” 20. It appears that when both the BSEB and JSEB before the Apex Court in Civil Appeal No. 1651 of 2004 and 1652 of 2004 had accepted the consensus arrived at beteen them on 27.12.2003, they had bound themselves to carry on making payment of pensionary benefits to the retired employees of the erstwhile Board, inasmuch as, the order of the Apex Court dated 19.8.2004 itself reads as follows:- “Both these civil appeals are disposed of in view of the arrangement arrived at between the two contesting State Electricity Boards as is evident from the minutes of discussion held on 27.12.2003. Copy of the minutes has been filed which shows that the terms of agreement arrived at in view of the arrangement entered into by the contesting Electricity Boards. Necessary follow up action shall be taken on 13 the basis of the agreement entered into between the parties as referred to above.” 21. It is equally important to keep in mind that the entire mechanism of apportionment of assets and liabilities of the erstwhile undivided Bihar State Electricity Board under Section 62 of the Bihar Re-organisation Act 2000, hereinafter referred to as the Act is based on arriving of consensus between the two successor Boards failing which it is the Central Government which has to take a final decision. Section 62 of the Act, in this regard, reads as follows:- "Provisions as to Bihar State Electricity Board, State Ware-housing Corporation and State Road Transport Corporation- (1) The following bodies corporate constituted for the existing State of Bihar, namely:- (a) the State Electricity Board constituted under the Electricity (Supply) Act, 1948; (b) the State Warehousing Corporation established under the Warehousing Corporations Act, 1962; (c) the State Road Transport Corporation established under the Road Transport Act, 1950. shall, on and from the appointed day, continue to function in those areas in respect of which they were functioning immediately before that day, subject to the provisions of this section and to such directions as may, from time-to-time, be issued by the Central Government. (2) Any directions issued by the Central Government under sub-section (1) in respect of the Board or the Corporation shall include a direction 14 that the Act under which the Board or the Corporation was constituted shall, in its application to that Board or the Corporation, have effect subject to such exceptions and modifications as the Central Government thinks fit. (3) The Board or the Corporation referred to in sub-section (1) shall cease 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 States of Bihar and Jharkhand in such manner as may be agreed upon between them within one years 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 Central Government may, by order, determine; Provided that any liabilities of the said Board relating to the unpaid dues of the coal supplied to the Board by any public sector coal company shall be provisionally apportioned between the State Electricity Boards constituted respectively in the successor States of the existing State of Bihar or after the date appointed for the dissolution of the Board under this sub-section in such manner as may be agreed upon between the Governments of the successor States within one month of such dissolution or if no agreement is reached, in such manner as the Central Government may, by order, determine subject to reconciliation and finalisation of the liabilities which shall be completed within three months from the date of such dissolution by the mutual agreement between the successor States or failing such agreement by the direction of the Central Government: Provided further that, an interest at the rate of two percent, higher than the Cash Credit interest 15 shall be paid on outstanding unpaid dues of the coal supplied to the Board by the public sector coal company till the liquidation of such dues by the concerned State Electricity Board constituted in the successor States on or after the date appointed for the dissolution of the Board under this sub- section. (4) 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 sub-section (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 the State, and (b) upon the dissolution of the existing Board or Corporation- (i) 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; 16 (ii) any employee, who would otherwise have been transferred to or re-employed by the State under sub-section (3) read with clause(i) of sub-section (5), shall be transferred to or re-employed by the new Board or the new Corporation instead of to or by the State. (5) An agreement entered into between the successor States under sub-section(3) and an order made by the Central Government under that sub-section or under clause (a) of sub-section (4) may provide for the transfer or re-employment of any employee of the Board or the Corporation referred to in sub-section (1)- (i) to or by the successor States, in the case of an agreement under sub-section (4) or an order made under that sub- section; (ii) to or by the new Board or the new Corporation constituted under sub- section (4), in the case of an order made under clause (a) of that sub- section. and, subject to the provisions of Section 65, also for the terms and conditions of service applicable to such employees after such transfer or re- employment." 22. It however appears that the aforesaid consensus between B.S.E.B. and J.S.E.B. dated 27.12.2003 did not lead to a final