Supreme Court Upholds Pension Based on Notional Salary in Contempt Case: State of Bihar vs. Meera Tiwary (2019)

Date of the Judgment: 11 June 2019

Citation: [Not Available in Source]

Judges: Indira Banerjee, J., Ajay Rastogi, J.

Can a government authority deny an employee’s pension benefits based on the claim that he did not join a promoted post, especially when there is no disciplinary action or show cause notice issued? The Supreme Court of India addressed this question in a recent case concerning the calculation of family pension for the widow of a deceased government employee. The core issue revolved around whether the High Court was justified in directing the authorities to consider the notional salary of the higher post to which the employee was promoted, for the purpose of calculating pension benefits. The judgment was delivered by a bench comprising Justice Indira Banerjee and Justice Ajay Rastogi.

Case Background

Shri Amardeo Tiwari, the husband of the respondent Meera Tiwary, was initially appointed as a Junior Engineer in the Public Works Department on August 1, 1958. He was then promoted to the post of Temporary Assistant Engineer on an ad hoc basis on September 2, 1981. Later, on December 20, 1994, he received a regular promotion to the post of Assistant Engineer, effective from November 28, 1979, with the approval of the Bihar Public Service Commission. Shri Amardeo Tiwari retired from service on June 30, 1995, and passed away on May 30, 2004. However, his retiral benefits were not determined or released until his death. Following his death, his wife, Meera Tiwary, filed a writ petition seeking the release of her husband’s post-retiral benefits.

Timeline:

Course of Proceedings

Meera Tiwary, the respondent, initially filed a writ petition in the High Court of Judicature at Patna, seeking a direction to the authorities to fix and pay the post-retiral benefits of her deceased husband. The High Court disposed of this writ petition along with 20 other similar cases, directing the concerned authorities to redress the grievances of the petitioners. Subsequently, provisional pension and gratuity were sanctioned, but these were calculated based on the premise that Shri Amardeo Tiwari had remained a Junior Engineer. This led to the respondent filing a contempt application, alleging non-compliance with the High Court’s order. The High Court, in the contempt proceedings, directed the authorities to finalize the family pension, taking into account the notional salary that would have been payable to her husband on the date of his retirement as an Assistant Engineer. This order was challenged by the State of Bihar in the Supreme Court.

Legal Framework

The appellants relied on Rule 58(a) of the Bihar Service Code, which states that a government servant is entitled to draw pay and allowances attached to his post from the date he assumes duty in that post and ceases to draw such pay and allowances as soon as he ceases to discharge those duties. Rule 76 of the Bihar Service Code was also cited, which provides that a government servant, after five years of continuous absence from duty, would cease to be in government employment. The relevant part of Rule 58(a) of the Bihar Service Code states:

“subject to any exception specifically made in these rules and subject to the provisions of clause (b) of Rule 58(a), a government servant is entitled to draw pay and allowances attached to his post with effect from the date on which he assumes the duties of that post and ceases to draw such pay and allowances as soon as he ceases to discharge those duties.”

Arguments

Appellants’ Arguments:

• The State of Bihar argued that the High Court, in the contempt proceedings, had modified the original order passed in the writ petition.
• They contended that the High Court had expanded the scope of the original order by directing the calculation of pension based on the notional salary of the Assistant Engineer post.
• The State relied on Rule 58(a) of the Bihar Service Code, arguing that the deceased was only entitled to the pay and allowances of the post he was actually discharging duties in.
• They also cited Rule 76 of the Bihar Service Code, stating that continuous absence of five years would lead to cessation of government employment.
• The State contended that since Shri Amardeo Tiwari did not join the post of Assistant Engineer, he was not entitled to the salary and benefits of that post.

Respondent’s Arguments:

• The respondent argued that the High Court’s order was merely an enforcement of its earlier order to fully redress the grievances of the petitioner.
• She contended that her husband had been promoted to the post of Assistant Engineer and was therefore entitled to the benefits of that post.
• The respondent highlighted that no disciplinary proceedings or show cause notice had been issued to her husband during his lifetime, alleging that he had not joined the duties of Assistant Engineer.
• She argued that the authorities could not deny her the benefits of the promoted post based on a belated claim of absence.

Sub-Submissions Table:

Issues Framed by the Supreme Court

The Supreme Court framed the following issue:

1. Whether the High Court modified or expanded the scope of the original order in the writ proceedings by directing the calculation of family pension based on the notional salary of the deceased husband of the respondent, as an Assistant Engineer?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

• Rule 58(a) of the Bihar Service Code: This rule was considered to understand the entitlement of a government servant to draw pay and allowances. The court noted that the rule stipulates that a government servant is entitled to draw pay and allowances attached to his post from the date he assumes duty in that post.
• Rule 76 of the Bihar Service Code: This rule was considered in the context of the appellants’ argument that continuous absence of five years would lead to cessation of government employment. The court noted that no such action was taken against the deceased during his lifetime.

Table of Authorities Considered:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Rule 58(a) of the Bihar Service Code: The court acknowledged the rule but emphasized that since the employee had been promoted, the calculation of pension should be based on the salary of the promoted post.
• Rule 76 of the Bihar Service Code: The court noted that no action was taken against the employee under this rule during his lifetime, rendering it inapplicable.

What weighed in the mind of the Court?

The Supreme Court’s decision was heavily influenced by the fact that Shri Amardeo Tiwari had been promoted to the post of Assistant Engineer, and no disciplinary action or show cause notice had ever been issued to him during his lifetime regarding his alleged absence from duty. The court found it “preposterous” that a second promotion order would have been issued if he had not joined the post. The court also emphasized that the authorities could not circumvent the High Court’s order by releasing provisional pension and gratuity based on a lower post. The court’s reasoning was driven by the need to ensure that the employee’s dues were computed based on the post he held at the time of his retirement.

Fact:Law Ratio:

Logical Reasoning:

The Court observed:

“The concerned authorities were directed to fully redress the grievances of the petitioner, and/or in other words, to release the retiral dues of late Sh. Amardeo Tiwari in full.”

“It is preposterous that a second order would have been issued confirming the promotion to the post of Assistant Engineer, if late Amardeo Tiwari had not joined the post pursuant to the earlier order and had remained absent.”

“The High Court merely directed the alleged contemner to finalise the dues payable to the respondent no.1 having regard to the salary that should have been payable to her husband on the date of his retirement as Assistant Engineer, the post to which he was admittedly promoted.”

Key Takeaways

• Pension benefits should be calculated based on the salary of the post to which an employee was promoted, even if the employee did not physically join the higher post, provided there is no disciplinary action or show cause notice issued against the employee.
• Government authorities cannot circumvent court orders by releasing provisional benefits based on a lower post when an employee has been promoted.
• Belated claims of absence cannot be used to deny an employee’s rightful benefits, especially when no disciplinary action was taken during their service.
• Contempt proceedings can be used to ensure the effective enforcement of court orders.

Directions

No specific directions were given by the Supreme Court in this case.

Specific Amendments Analysis

There is no specific amendments analysis in this case.

Development of Law

The ratio decidendi of this case is that when an employee has been promoted to a higher post, their pension benefits should be calculated based on the notional salary of that higher post, unless there is a disciplinary proceeding or show cause notice against the employee regarding their absence from duty. This clarifies that a promotion cannot be denied for the purposes of pensionary benefits based on a belated claim of absence.

Conclusion

The Supreme Court dismissed the appeal filed by the State of Bihar, upholding the High Court’s order to calculate the family pension of Meera Tiwary based on the notional salary of her deceased husband as an Assistant Engineer. The Court emphasized that the High Court’s direction was not a modification of its original order but an enforcement of it. This judgment reinforces the principle that pension benefits should reflect the post to which an employee was promoted, and that belated claims of absence cannot be used to deny these benefits.