RAM DULARI DEVI Vs. BIHAR STATE ELECTRICITY BOARD

JUDGEMENT

(1.) THIS writ petition by Ram Chandra Mahtowho died during pendency of this case and is now represented by his wife Ram Dulari Devi(hereinafter referred to as the petitioner) is directed against the decision of the Bihar State Electricity Board (in short the Board) treating him as re -appointed with effect from the date of his joining the Patratu Thermal Power Station pursuant to Boards letter no. 256 dated 7.6.93 denying him the benefit of his past service and directing that his salary be fixed at the initial level of the relevant scale. Copy of the said decision communicated by the Joint Secretary of the Board by memo no. 10 dated 5.1.2000 is Annexure -15 to the writ petition. The prayer, further, is for a direction to count his past service from the date of initial appointment i.e. 28.11.74 for giving him the service benefits.

(2.) THE facts of the case, briefly stated, are as follows. The petitioner was appointed as an Operator at the Barauni Thermal Power Station in the service of the Board on 28.11.74. On 6.8.83 an F.I.R. was lodged against him and five others, namely, Indradeo Jha, Mahesh Dutta Pathak, Rameshwar Prasad. Ram Nandan Mahto and Bhuneshwar Pd. Mahto, and he was placed under suspension on 8.8.83. On 27.8.83 charge memo was issued and he was subjected to a departmental proceeding. On 4.5.85 he was dismissed from service on being found guilty for misconduct. The case of the petitioner in this regard is that the Inquiry Officer was hostile to him as he had levelled allegation against his brother. But notwithstanding his objection, the inquiry continued and he was eventually dismissed from service on the report of the said Inquiry Officer. Meantime, 17 Operators were promoted as Assistant Controller, one post was kept reserved for him at serial no. 16 of the list. Two out of the abovementioned five persons, namely, Ramnandan Mahto and Bhuneshwar Pd. Mahto had meanwhile moved the Labour Court against termination of their services. The Labour Court held that the termination was illegal and pursuant to the award they were reinstated. The remaining three i.e. I.D. Jha, M.D. Pathak and Rameshwar Prasad also were reinstated. The petitioner in the meantime was acquitted in the criminal case. The case of the petitioner is that in view of the acquittal and reinstatement of I.D. Jha and others his case was re -considered and decision was taken to reinstate him too vide memo no. 256 dated 7.6.93 of the Director of Personnel. Copy of the letter is Annexure -7 to the writ petition. In the light of the said letter, the General Manager, Patratu Thermal Power Station issued memo no. 3649 dated 9.6.93 and the petitioner submitted his joining on 12.6.93. On 11.8.95 he was transferred from Patratu Thermal Power Station to Barauni Thermal Power Station. He made representation to fix his seniority and by office order no. 546 dated 4.11.95 the General Manager, Barauni Thermal Power Station directed that his seniority as Operator as shown in office order no.1027 dated 12.11.84 shall be maintained. He was placed below Pramod Kumar and above Nitya Nand Singh. The petitioner filed representation for his promotion as Assistant Controller on the ground that Nitya Nand Singh stood promoted on the post. The General Manager, Barauni Thermal Power Station made reference to the Boards headquarters. Instead of allowing the representation the impugned order was issued directing that his appointment will be treated as fresh employment and he will not be entitled to count his past service.

(3.) IT was submitted on behalf of the petitioner that vide clause (iii) of paragraph 3 of the letter dated 7.6.93, Annexure -7, and the consequential communication of the General Manager, Patratu Thermal Power Station dated 9.6.93, the intervening period from the date of dismissal to the date of fresh appointment was to count for fixation of pay, increment and also to be treated as continuous for pensionary benefits. The petitioner having accepted the employment on that condition, later, the condition could not be altered to his detriment much less giving opportunity of hearing. Reliance was placed on Ruplal Rajak V/s. The State of Bihar & Ors, 1991 BRLJ 165, K.I. Shephoral & Ors. V/s. Union of India, AIR 1988 Supreme Court 686, H.L. Trehan & Ors. V/s. Union of India & Ors., AIR 1989 Supreme Court 568, Charan Lal Sahu V/s. Union of India & Ors., AIR 1990 Supreme Court 1480, Management of M/s. M.S. Nally Bharat Engineering Co. Ltd. V/s. The State of Bihar & Ors., (1990) 2 SCC 48, and D.K. Yadav V/s. J.M.A. Industries Ltd., (1993) 3 SCC 359 :1994 (1) PLJR (SC) 55. In any view, it was urged, the amount already paid to the petitioner should not be recovered, particularly after his death. When attention of the counsel was drawn to the fact that it was a case of re -employment and it was specifically mentioned in clause (ii) of paragraph 3 of the letter dated 7.6.93 that the petitioner "will not be entitled to claim for pay for the period, since the date of termination of his service to the date of his reemployment afresh which is purely on compassionate ground", counsel submitted that after re -appointment too the benefit of past service can be granted.