Basant Kumar Yadav vs The State Of Jharkhand
2021 Latest Caselaw 4223 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        W.P.(S) No. 6163 of 2015
                                --------

    Basant Kumar Yadav                         ..... Petitioner
                                Versus
       1. The State of Jharkhand

2. The Principal Secretary, Department of Health, Education and Family Welfare, Government of Jharkhand

3. The Civil Surgeon-cum-Chief Medical Officer, District Deoghar, Jharkhand

4. The In-Charge, Medical Officer, Primary Health Centre, Mohanpur, District Deoghar, Jharkhand..... Respondents

---------

CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

---------

For the Petitioner : Mr. Jalisur Rahman, Advocate For the Respondents : Mr. Amrita Banerjee, A.C. to S.C.V

---------

13/17.11.2021 Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by the petitioner praying therein for quashing of the order as contained in Memo No. 139/2011-1263 dated 10.07.2015 passed by Respondent No.2; whereby the representation of the petitioner filed pursuant to order of this Court has been rejected.

3. Mr. Jalisur Rahman, learned counsel for the petitioner submits that the petitioner had earlier moved before this court against the order of termination dated 15.1.2011; whereby the petitioner was terminated declaring the compassionate appointment of the petitioner as illegal though he worked for more than 23 years on the post of Male Warden. The said writ application was disposed of by quashing and setting aside the order of termination dated 15.01.2011 and further the case was remanded back to the concerned respondent with a direction to take a decision after providing an opportunity of being heard to the petitioner.

He further submits that only question of law involved in this case is whether the petitioner can be terminated after superannuation. In this regard he submits that since there was no disciplinary proceeding pending at the time of his superannuation; the impugned order could not have been passed.

Learned counsel contended that since the order of termination dated 15.01.2011 was quashed and set aside by this Court and the matter was remanded; as such he was entitled for reinstatement of his services on the same post of Male Warden and accordingly, after the order of this court in the earlier writ petition and pursuant to filing of the representation, the petitioner received memo from the department with a direction to join at Raj Kumari Kushthasram, Deoghar on the post of Male Warden and accordingly, petitioner went to join the said post.

However, the petitioner again received another memo dated 15.05.2015; whereby he was directed to reply and again he received another letter with a direction to appear before the concerned authority and thereafter, the impugned order dated 10.07.15 has been issued. He contended that since his date of birth is 14.01.1955 as such his age of superannuation was 14.01.2015. Thus, the action of the respondents in terminating this petitioner after his superannuation is non-est in the eye of law

4. Mr. Amrita Banerjee, learned A.C. to S.C.V appearing for the respondent State submits that this court after quashing the order dated 15.01.2011 gave a direction to pass a fresh order after giving opportunity of hearing. She further submits that after receiving the order of this court a show cause notice was given to this petitioner and an opportunity of hearing was also provided and petitioner also appeared and finally the impugned order has been passed.

She further submits that the petitioner has also filed another writ application for payment of arrear of salary, which is also pending before this court. She further referred to several paragraphs of the counter affidavit and submits that no illegality has been committed by the respondents in issuing the impugned order.

She lastly submits that as per their record the petitioner had already been given his entire admitted dues to the tune of Rs.6,72,591/-

5. Having heard learned counsel for the parties and after going through the documents available on record it appears that father of the petitioner died in harness on 31.12.1973. Thereafter, this petitioner was appointed on compassionate ground vide Memo No. 160 dated 09.01.1986 issued by the then Civil Surgeon-cum-Chief Medical Officer, Dumka. After that, the petitioner continuously worked on Class IV post in Mohanpur Primary Health Centre for around 23 years on the post of Male Warden but since November, 1994, his salary was stopped and pursuant thereto; petitioner filed a writ application for a direction for payment of his salary since November, 1994.

It further transpires that initially writ application was filed before the Patna High Court. Later on, the case was transferred to this court and was taken up for hearing on 16.4.2002. The said case was disposed of by giving liberty to the petitioner to approach the Secretary, Health Department, Government of Jharkhand who in turn was directed to enquire the matter from the Civil Surgeon-cum-Chief Medical Officer and take a decision relating to payment of salary. It was also observed in the said order that it will be open to the respondents to raise the question of legality and propriety of appointment, if found to be illegal.

Pursuant to the aforesaid order of this court passed in the earlier writ application; the respondent authorities calculated the amount at their end and paid about Rs. 6 lacs and odd to the petitioner towards the arrears of salary. However, on the ground of illegal appointment they have issued an order of termination dated 15.01.2011 by declaring the compassionate appointment of the petitioner as illegal appointment. Thereafter, the order of termination dated 15.01.2011 was again challenged in subsequent writ application, being W.P.(S) No. 6156 of 2011 which was

disposed of vide order dated 27.11.2014; relevant part of which is quoted hereunder:

"11. Hence, in view of the fact that when the authorities reached to the conclusion that the appointment has been found to be illegal then certainly an issue ought to have been raised by the respondents by issuing a show-cause to the petitioner before removing him from his service, But from perusal of the impugned order dated 15.01.2011, no show cause notice has been issued to the petitioner.

12. Further in the impugned order dated 15.01.2011 although the same has been decided in terms of the order dated 16.04.2002 for payment of the arrears of salary, directing to release the arrears of salary for the period for which petitioner has performed his duty. But it was not correct on the part of the respondents to take decision of the cancellation of appointment of the petitioner because of the reason that before cancelling the appointment even show- cause notice was not issued to the petitioner. Hence, minimum requirement of the Principal of natural justice ought to have been followed.

13. In this regard, the judgment delivered by the Apex Court in case of Biecco Lawrie Limited & Anr. Vs. State of West Bengal and Anr., (2009) 10 SCC 32 in worth quoting wherein Apex Court held that the principles of natural justice are attracted whenever a person suffers a civil consequences or a prejudice is caused to him by an administrative action. At Para 18 Apex Court held as follows:

"The principle of natural justice is attracted whenever a person suffers a civil consequence or a prejudice is caused to him by an administrative action. In other words principle of natural justice is attracted where there is some right which is likely to be affected by any act of the administration including a legitimate expectation............."

14. In the instant case the respondents took the service of the petitioner and after 23 years, the petitioner was terminated from his service without providing an opportunity of being heard.

15. Hence, the impugned order by which the appointment of the petitioner has been cancelled, is not sustainable in the eyes of law and the same is hereby quashed.

16. The matter is remitted to the competent authority i.e. Principal Secretary, Department of Health, Education and Family Welfare, Government

of Jharkhand to take decision after providing an opportunity of being heard to the petitioner within a reasonable period preferably within a period of six months from the date of receipt of the copy of the order and communicate the same to the petitioner."

6. Pursuant to the aforesaid order petitioner was duly served show cause notice vide Memo No. 139/11 dated 18.5.2015. It further transpires that the petitioner was given an opportunity of hearing by asking several documents etc. before passing the impugned order.

From the counter affidavit it appears that a detailed report was submitted to the Director-in-Chief, Health Services by the Medical Officer-in-charge, Primary Health Centre, Mohanpur recording non availability of signature or any mark to prove attendance of petitioner between April' 2001 to February, 2002 in the concerned attendance register.

It further transpires that the petitioner has been removed from service on the ground of rules applicable for compassionate appointment. It is an admitted fact that though the petitioner was appointed in the year 1986, however, father of the petitioner died in the year 1973. The rule which has been referred by the respondents stipulates that the appointment on compassionate ground would be available only in those cases where the deceased have died on or after 12.7.1975. Relying upon the aforesaid circular the case of the petitioner has been rejected.

7. The petitioner has assailed the order of termination on the ground that petitioner could not be terminated after he attained the age of superannuation. In this regard, reference may be made to the case of Chairman- Cum-Managing Director, Mahanadi Coalfields Limited vs Rabindranath Choubey reported in 2020 SCC OnLine SC 470 wherein the Hon'ble Apex Court has held in Paragraph 70 and 72 as under:

"70. Several service benefits would depend upon the outcome of the inquiry, such as concerning the period during which inquiry remained pending. It would be

against the public policy to permit an employee to go scot-

free after collecting various service benefits to which he would not be entitled, and the event of superannuation cannot come to his rescue and would amount to condonation of guilt. Because of the legal fiction provided under the rules, it can be completed in the same manner as if the employee had remained in service after superannuation, and appropriate punishment can be imposed. Various provisions of the Gratuity Act discussed above do not come in the way of departmental inquiry and as provided in Section 4(6) and Rule 34.3 in case of dismissal gratuity can be forfeited wholly or partially, and the loss can also be recovered. An inquiry can be continued as provided under the relevant service rules as it is not provided in the Payment of Gratuity Act, 1972 that inquiry shall come to an end as soon as the employee attains the age of superannuation. We reiterate that the Act does not deal with the matter of disciplinary inquiry, it contemplates recovery from or forfeiture of gratuity wholly or partially as per misconduct committed and does not deal with punishments to be imposed and does not supersede the Rules 34.2 and 34.3 of the CDA Rules. The mandate of Section 4(6) of recovery of loss provided under Section 4(6)(a) and forfeiture of gratuity wholly or partially under Section 4(6)(b) is furthered by the Rules 34.2 and 34.3. If there cannot be any dismissal after superannuation, intendment of the provisions of Section 4(6) would be defeated. The provisions of section 4(1) and 4(6) of Payment of Gratuity Act, 1972 have to be given purposive interpretation, and no way interdict holding of the departmental inquiry and punishment to be imposed is not the subject matter dealt with under the Act.

72. In view of the above and for the reasons stated above and in view of the decision of three Judge Bench of this Court in Ram Lal Bhaskar (supra) and our conclusions as above, it is observed and held that (1) the appellant - employer has a right to withhold the gratuity during the pendency of the disciplinary proceedings, and (2) the disciplinary authority has powers to impose the penalty of dismissal/major penalty upon the respondent even after his attaining the age of superannuation, as the disciplinary

proceedings were initiated while the employee was in service."

After going through the aforesaid judgment of the Hon'ble Apex Court it is clear that a person can be dismissed after the date of superannuation.

8. Now, coming to the facts of the case, though the order of termination dated 15.01.2011 was quashed and set aside by this Court on the ground of non compliance of principles of natural justice but the matter was remitted back to the concerned authority to take decision after providing opportunity to the petitioner. After going through the impugned order it transpires that direction of this court has been fully complied and the petitioner was given full opportunity to rebut the contention of the respondents.

It further transpires that as per the applicable rules of compassionate appointment, a person can be appointed on compassionate ground only if the deceased employee died on 12.07.1975 or within two years from that date. In the instant case on the one hand, the father of the petitioner died in the year 1973 and on the other hand, the petitioner was appointed after a gap of 13 years. Thus, this court holds that there is no illegality in the impugned order so far as the ground for termination is concerned.

9. So far as the question of law raised by the learned counsel for the petitioner is concerned; it has been decided against him, inasmuch as, a person can be terminated even after superannuation in a pending proceeding. Since in the instant case, the order of termination was quashed but the case was remitted back to the concerned department for taking a fresh decision, as such it cannot be said that the impugned order is illegal and the action of the respondents is bad in law.

10. With the aforesaid observation and direction the instant writ application is dismissed.

(Deepak Roshan, J.) sm/