The main legal point established in the judgment is the importance of interpreting and applying relevant regulations and agreements in determining liability for post retiral benefits, as well as the distinction between an error apparent on the face of the record and an erroneous decision in the context of the power of review.

JUDGMENT :

(Shree Chandrashekhar, J.)

Against the order dated 14th January 2011 passed in Civil Review No. 121 of 2009, the Bihar State Electricity Board [now Bihar State Power (Holding) Company] and its officers have preferred this Letters Patent Appeal.

2. The appellants are aggrieved by the modification in the writ Court’s order to the extent that liability to pay the post retiral benefits to the writ petitioner has been fastened on the Bihar State Electricity Board (in short ‘Bihar Board’).

3. Briefly stated, the writ petitioner who is the respondent no. 5 in the present proceeding (hereinafter referred to as ‘respondent’) was issued a show cause notice for producing his matriculation and other certificates to establish that his actual date of birth as recorded in the service book was 1st January 1958. However, on scrutiny of the records, it was detected that he was born on 1st February 1941 but got a wrong date of birth recorded in the service book and continued in service till 7th April 2000. That is, beyond 31st January 1999 when he was due to retire. The respondent who was employed under the erstwhile Bihar State Electricity Board (in short ‘Bihar Board’) approached the writ Court with a grievance that the resolution dated 16th July 2001 of the Bihar Board was illegal and the direction to recover the excess amount paid to him after 31st January 1999 cannot be enforced against him.

4. The Bihar Board referred to Rule 78(ii)(a) of the Bihar State Electricity Board Service Regulations to oppose W.P. (S) No. 2792 of 2003 setting up a stand that it was the duty of the employee to demit office on attaining the age of superannuation but Bhuneshwar Mondal continued in service beyond the date when he was due to superannuate and, therefore, liable to return the excess amount received by him in salary and other allowances for the period beyond 31st January 1999. The writ Court interfered with the resolution dated 16th July 2001 and the order of recovery of excess amount was quashed. However, a direction was issued to the Jharkhand State Electricity Board (in short ‘Jharkhand Board’) to pay the post retiral dues to the respondent. This is the direction of the writ Court that was challenged by the Jharkhand Board by filing Civil Review No. 121 of 2009. From the materials on record, it appears that the Jharkhand Board filed Civil Review No. 121 of 2009 because Contempt Case (Civil) No. 771 of 2009 was instituted against its officers alleging intentional and willful violation of the writ Court’s order dated 23rd July 2009.

5. The review petition was allowed and the order dated 23rd July 2009 passed in W.P. (S) No. 2792 of 2009 was modified to the extent that the Bihar Board was directed to pay the post retiral benefits to Bhuneshwar Mondal.

6. Mr. Manoj Tandon, the learned counsel for the appellants submits that the Bihar Board in view of agreement dated 27th December 2003 entered into between both the Boards is not liable to pay the post retiral benefits to the employees who superannuated from service from a place now falling under the territorial jurisdiction of the State of Jharkhand/Jharkhand Board. To lay support to his submission, the learned counsel for the appellants has referred to the judgment in “Akhileshwar Prasad v. Jharkhand State Electricity Board & Others” 2006 (2) JCR 418 (Jhr.). The learned counsel has therefore raised a preliminary objection to the order passed by the review Court on the ground that there was no apparent error in the writ Court’s order dated 23rd July 2009 particularly in view of a previous decision of this Court in “Akhileshwar Prasad”. According to the appellants, Civil Review No.121 of 2009 filed by the Jharkhand Board did not fall within the ambit of Order XLVII Rule 1 of the Code of Civil Procedure so as to invite the exercise of the powers under Article 226 of the Constitution by the writ Court (refer, “Shivdeo Singh and others v. State of Punjab and others” AIR 1963 SC 1909).

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