19 April 2023 11:44 AM GMT
Dismissing a plea of the employees of Bihar Industrial Area Development Authority (BIADA) for grant of pension, the Patna High Court said that notwithstanding the fact that under the BIADA Act, it is stipulated that every employee of the BIADA would be deemed to be a Public Servant within the meaning of Section 21 of the Indian Penal Code, by no stretch of imagination it would make a...
Dismissing a plea of the employees of Bihar Industrial Area Development Authority (BIADA) for grant of pension, the Patna High Court said that notwithstanding the fact that under the BIADA Act, it is stipulated that every employee of the BIADA would be deemed to be a Public Servant within the meaning of Section 21 of the Indian Penal Code, by no stretch of imagination it would make a Public servant a Government servant.
The court was dealing with the argument that appellant and other employees served the authority for all along as a public servant, as defined under Section 21 of the IPC, but the Industry Department imposed the Contributory Provident Fund Scheme on them when at the same time it provided the benefit of pension to employees of the State Government, who were transferred to and absorbed in BIADA.
A clear discrimination was caused to the appellant and other similarly situated employees of the Authority without any justifiable reason, in complete violation of Article 14 of the Constitution of India, it was argued.
The division bench of Justice Ashutosh Kumar and Justice Harish Kumar held,
“...notwithstanding that under the Act, it is stipulated that every employee of the BIADA would be deemed to be a Public Servant within the meaning of Section 21 of the Indian Penal Code, but by no stretch of imagination it makes a Public servant a Government servant.”
The court passed the order while hearing a Letters Patent Appeal against the order of the Single Judge whereby the claim of the appellant and other identically situated employees of (BIADA) for grant of pension had been turned down.
In this LPA, the appellant, who had served as an employee of the BIADA for over 37 years, submitted that right from inception of the establishment of the Authority, the services of the appellant and other employees of BIADA were governed by the Bihar Service Code, Bihar Finance Rules, Bihar State Employees Conduct rules and the letters issued by the State Government from time to time. He further submitted that all the employees of BIADA have been allowed the benefit of 3rd, 4th, 5th and 6th revised pay scale after getting the consent of the State Government and promotions have also been accorded as per their eligibility.
The counsel appearing for BIADA submitted that way back in the year 1980 itself, Contributory Provident Fund Scheme was implemented in BIADA, similar to the other Boards and Corporations and at no point of time, the government has taken any policy decision to introduce and implement the pension scheme to the employees of the BIADA. It was further contended that the claim of the employees of the BIADA was duly considered by the government and after due deliberation and getting opinion from the Finance Department, the same has been turned down way back in 2011 itself.
The bench noted that admittedly the appellant was duly appointed by the Managing Director of the BIADA and he was, at no point of time, in government service, though the BIADA has adopted Bihar Service Code and Civil Services (Classification, Control and Appeal) Rules for regulation of the service condition of its employees.
Observing that BIADA being an autonomous authority does not have a pension scheme, the bench further noted that, “right from very inception, the employees are the members of the Contributory Provident Pension Fund Scheme.”
While relying on the judgment in R.N. Gosain Vs Yashpal Dhir, the court said:
“The law does not permit a person to both approbate and reprobate simultaneously. The principle is based on the doctrine of election, which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. Thus the appellant, who has already contributed to Contributory Provident Fund Scheme and his dues have already been settled upon his superannuation, cannot be permitted to turn round and challenge the same by taking a plea that no service condition have been framed till date.”
The bench also rejected the argument on alleged discrimination, while agreeing with the submission of the State that the case of those persons, who were transferred from government, cannot be stated to be the same as that of appellant.
"So far the submission of the appellant with regard to certain instances wherein pensionary benefits have been granted to some other employees of the BIADA treating them to be Government servant, is concerned, the same has been aptly clarified by the learned counsel representing the BIADA that those employees were Government employees recruited and appointed by the Government. They were then transferred and absorbed in BIADA, thus treating them to be primarily Government employees and they have been allowed the benefit of pension on pro-rata basis considering the services rendered by them with the State Government only."
The division bench said the Single Judge had rightly refused to issue writ of mandamus for directing the authority for grant of pension to the employees of BIADA and "that the grant of pension was a matter of policy and it was within the wisdom of the Government to take a policy decision in the matter."
Case Title: Md. Wasim Uddin vs. State of Bihar and Ors. LPA No. 846 of 2019 in CWJC No. 6140 of 2015
Citation: 2023 LiveLaw (Pat) 34
Click Here To Read/Download Judgment