Subodh Kumar Hembram vs The State Of Jharkhand
2022 Latest Caselaw 170 Jhar

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         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No.4123 of 2010
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Subodh Kumar Hembram ... ... Petitioner Versus

1. The State of Jharkhand.

2. The Secretary, Primary Education, Government of Jharkhand.

3. The District Superintendent of Education, Singhbhum East.

4. The Block Education Extension Officer, Baharagora, Singhbhum East. ... ... Respondents

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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner :Mr. Amit Kumar Das, Adv.

Ms. Swati Shalini, Adv.

For the Res-State : Mr. Raunak Sahay, A.C to G.P. V

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C.A.V. on 09.12.2021 Pronounced on 28/01/2022

Heard learned counsel for the parties.

2. The instant writ application was initially

preferred by the petitioner praying therein for a direction

upon the respondent-authorities to accept the joining of

the petitioner as an Assistant Teacher and to pay salary

with effect from the date the petitioner gave his joining

after recovery from his ailment i.e. on 12.12.2005.

During pendency of the case, vide letter

no.2184 dated 09.09.2021 (Annexure-H to the

supplementary counter affidavit dated 16.09.2021),

services of the petitioner has been terminated which has

been challenged by way of interlocutory application being

I.A. No. 5533 of 2021, which was allowed by this Court.

3. The facts relevant for disposal of the instant

writ application is that pursuant to the letter dated

21.09.1994, the petitioner was appointed as an

untrained teacher in the pay scale of Rs.975-1540/-,

thereafter he joined the service and started doing his

work at Primary School Kesarda. Subsequently, in the

year 1999, he fallen severely ill due to which he applied

for leave. Thereafter, the petitioner was diagnosed with

severe "Lumbago Sciatic Syndrome" for which he was

regularly treated by a medical expert and after he was

declared fit in the year 2005, he gave his joining

annexing all the original medical documents before the

Block Education Extension Officer (BEEO in short) on

12.12.2005.

Without much delay, the BEEO, Baharagora

recommended for the acceptance of joining of the

petitioner before the District Superintendent of

Education vide its letter No. 54 dated 04.03.2006,

however the petitioner did not receive any official

communication for joining and forced with this situation

and after filing several representations and running from

pillar to post; knocked the door of this Court by filing the

instant writ application.

4. A counter affidavit dated 05.10.2012 has been

filed by the respondent No.3-District Superintendent of

Education wherein it was admitted that the petitioner

gave his joining letter before the BEEO, Baharagora on

03.03.2006 and it has been stated that the Director

Primary Education, Ranchi has directed the respondent

No.3 to place the matter before the District Education

Establishment Committee, East Singhbhum,

Jamshedpur vide its letter dated 04.05.2011 and

pursuant to that a show cause notice was issued to the

petitioner on 17.10.2011 and a second show cause notice

was also issued on 17.08.2012.

It has been further stated in the said counter

affidavit that on receipt of reply from the petitioner the

entire matter will be placed before the District Education

Establishment Committee and as per the decision of the

Committee, proper action will be taken in accordance

with law.

5. A rejoinder to that effect was also filed wherein

it has been specifically stated that for no fault of this

petitioner the respondents are sitting tight over the

matter and further the statement of issuance of show

cause notice has been denied by the petitioner.

A supplementary affidavit has also been filed

by the petitioner wherein he has again annexed medical

certificate and work description from the school

concerned, medical fitness certificate etc. In the said

supplementary affidavit dated 02.02.2018 one letter

no.232 dated 29th November, 2008 issued by the BEEO,

Baharagora to District Education Officer East

Singhbhum, Jamshedpur received on 30.11.2008 has

also been annexed which clearly transpires that the

internal information was required by the District

Education Officer and Block Education Extension Officer,

after enquiry, submitted its report informing that the

petitioner went on leave 23.10.1999 and thereafter he

continued to inform the Office vide several

representations about his continued ailment and finally

he gave his joining on 03.03.2006.

6. When nothing was done; during pendency of

the case, this Court vide its order dated 29.07.2021

directed the State counsel to seek up-to-date instruction

on the decision of District Education Establishment

Committee before the next date of hearing. Pursuant

thereto; that supplementary counter affidavit has been

filed on 18.08.2021 wherein it has been stated that the

answering respondent again sent a letter to the petitioner

vide letter No.1906 dated 06.08.2021 and directed him to

submit his reply by 13.08.2021 and it has been further

stated in the said supplementary counter affidavit that

no reply has been received.

At the end of the day, the service of the

petitioner has been terminated vide letter no.2184 dated

09.09.2021(Annexure-H to the supplementary counter

affidavit dated 16.09.2021) wherein at paragraph No.10 it

has been stated that the petitioner submitted his reply

wherein he has admitted that he was absent from his

service for more than six years and thus the impugned

order has been passed for remaining absent for

continuous six years. It has been further stated at

paragraph No.11 of the said supplementary counter

affidavit that due to the petitioner's absence from duty for

more than six years and as per the directions issued by

the Director, Primary Education, Government of

Jharkhand, the services of the petitioner have been

terminated under the provisions of Rule 76 of the

Jharkhand Service Code.

For brevity, paragraph Nos.8, 9, 10 & 11 of the

supplementary counter affidavit dated 16.09.2021 is

reproduced hereunder:-

"8. That it is humbly stated and submitted that, as already explained in the supplementary counter affidavit filed by the Answering respondent, subsequent to the order dated 29.7.2021 passed by this Hon'ble Court, the Answering Respondent reviewed the matter and it was found that there were no reply of the petitioner available in the office of the Answering Respondent against the second show cause issued vide letter No.1899 dated

17.08.2012 (Annexure "D" to the counter affidavit filed by the Answering Respondent) and that in view of the above stated situation the Answering respondent sent letter no.1906 dated06.08.2021 (Annexure "E" to the supplementary counter affidavit filed by the Answering Respondent) the petitioner, informing him of the current status and directing him to submit his reply by 13.08.2021 as a last chance, and in case of failure of his part to submit such reply, the matter would be decided ex-

parte.

9. That it is humbly stated that the Answering respondent sent another notice dated 17.08.2021 bearing letter no.1987 to the petitioner. The said notice was served to the petitioner through the Block Education Extension Officer, and vide the said notice, the petitioner was directed to submit his reply by 21.08.2021 as a last chance. It was also made clear that in case of failure on the part of the petitioner to submit his reply by 21.08.2021 the matter would be decided ex-parte.

10. That it is humbly stated and submitted that the petitioner submitted his reply dated 19.08.2021, vide which Reply he has submitted that he had been absent from his service for more than six years.

11. That it is humbly stated and submitted that the case of the petitioner was put in front of the District Education Establishment committee in its meetings dated 17.08.2021 and 07.09.2021 wherein it was unanimously decided by the committee that due to the petitioners absence from duty for more than six years and as per the directions issued by the Director, Primary Education, Government of Jharkhand, the services of the petitioner have been terminated under the

provisions of Rule 76 of the Jharkhand Service Code. The order of termination of the services of the petitioner has been issued vide letter no.2184 dated 09.09.2021 by the Office of the Answering respondent."

7. Mr. Amit Kumar Das, learned counsel for the

petitioner submits that in the year 1999 petitioner was

diagnosed with severe Lumbago Sciatic Syndrome and in

December, 2005 he was declared fit and a fitness

certificate was also given to him and pursuant to that on

12.12.2005 petitioner gave his joining annexing all the

original medical documents. Thereafter, BEEO,

Baharagora recommended the case of the petitioner to

the District Superintendent of Education, East

Singhbhum vide its letter dated 04.03.2006. The said

letter clearly transpires that the petitioner regularly

informed the concerned Block Education Extension

Officer (BEEO) about his prolong illness.

Learned counsel further draws attention of

this Court towards the enquiry report (Annexure-7) of

supplementary affidavit dated 02.02.2018 and submits

that in the year 2008 itself the District Superintendent of

Education made an enquiry through BEEO about the

petitioner's case and a report was duly sent by the BEEO

vide its letter No.232 dated 29th November, 2008 which

was received by the Office of District Education Officer on

30.11.2008. The said report clearly transpires that the

petitioner was regularly informing about his prolong

illness and he went on leave after due permission.

Mr. Das further contended that when the

proper enquiry report was sent/received in the year

November, 2008 itself there was no reason for issuance of

any show cause notice with regard to joining of the

petitioner and that too after almost three years in 2011.

He further submits that even assuming but

not admitting about first two show cause notices which

were alleged to have been issued against this petitioner in

the year 2011-2012; what was the reason that the

respondents sat over the matter for years together and

finally after direction of this Court all of a sudden sent

another show cause notice in the year 2021 ultimately

terminated the service of this petitioner ignoring all the

facts and internal enquiry report as well as the genuine

ground of absence.

He lastly submits that even under Rule 76 (b)

of Jharkhand Service Code a government employee has

to be terminated after following the procedure laid down

in the Civil Services (Classification, Control and Appeal)

Rules, 1930 and under Bihar and Orissa Subordinate

Services Discipline and Appeal Rules, 1935 and in the

instant case, no disciplinary proceeding was ever

initiated or completed and the petitioner was not being

heard even for a single time. This is against the settled

principle of law and Rule 76 of the code has not been

followed at all, inasmuch as, as per the amended rule a

proper disciplinary proceeding has to be initiated before

taking any action. Thus, the impugned order is fit to be

quashed and set aside and the respondents be directed

to allow the petitioner to join the service.

8. Mr. Raunak Sahay, A.C to G.P. V, reiterated

the stand taken by the respondents in the respective

counter affidavits and submits that there is no error

committed by the respondent-authorities, inasmuch as,

the petitioner was absent for more than six years from

the duty and as per Rule 76(b) of the Jharkhand Service

Code, 2001 a government employee shall be removed

from service if he/she is on leave for a continuous period

of five years as in this case and due to the petitioner's

absence from duty for more than six years and as per the

directions issued by the Director, Primary Education,

Government of Jharkhand, the services of the petitioner

have been terminated under the provisions of Rule 76(b)

of the Jharkhand Service Code. As such no interference

is required in the impugned order.

Learned counsel relied upon the judgment

delivered in the case of Ramakant Dubey Vs. State of

Jharkhand & Ors. reported in 2013 (2) JCR 348 (Jhr.) and

submits that Rule 76(b) is applicable in cases where a

Government employee/servant does not resume duty

after remaining on leave for a continues period of 5 years.

9. Having heard learned counsel for the parties

and after going through the documents available on

record and the averments made in the respective

affidavits it appears that pursuant to the appointment

letter dated 21.09.1994, the petitioner joined as

untrained teacher at Primary School, Kesarda and before

taking medical leave he had duly informed the

respondent authorities about his illness vide letter dated

23.10.1999 and only after that he had availed medical

leave. Throughout the period of his leave he kept

updating the concerned B.E.E.O regarding his illness.

From perusal of the letter dated 04.03.2006

(part of Annexure-10 Series) would show that the Block

Education Extension Officer was aware about his illness

throughout the period of leave as the petitioner regularly

informed him. Hence, he requested the District

Education Officer for necessary action; however, the

respondent no.3 sat tight over the matter. The petitioner

kept making representation for his joining but nothing

had happened.

The petitioner, in order to find out the reason

for delay in joining, even applied under Right to

Information Act; and he was informed vide letter No.2668

dated 28.11.2007 (Annexure 5/1) that though his

services has not ended, he could not be given joining as

the original medical certificate was not available.

This was contrary to the facts, as the petitioner

had already submitted his medical certificates at the time

of joining before the concerned BEEO. The BEEO vide its

letter No.232 dated 29.11.2008 also submitted a report

that the petitioner had given his medical documents at

the time of applying for joining (Annexure-7). In spite of

submission of all the documents, the petitioner was

made to run from pillar to post and his joining was not

being accepted. The petitioner again made a

representation dated 22.04.2010 (Annexure-4) requesting

the respondent authorities to allow him to join his

service.

Finally, as the respondents sat tight over the

matter, the petitioner was constrained to file the present

writ application before this Court. Only after the writ was

filed; the respondents woke up from their deep slumber

and filed affidavit that they have decided to proceed

against the petitioner under Rule 76 of the Jharkhand

Service Code and show-cause notices were claimed to

have been issued against the petitioner without making

any disciplinary proceeding or preliminary inquiry. It is

claimed by the petitioner that the said show cause

notices were never served upon the petitioner.

At this stage it is pertinent to mention here

that even accepting the stand of the State that show-

cause notices were issued against the petitioner; then

who stopped them from moving a step further and start a

disciplinary proceeding. But the fact remains that the

respondents again sat over the matter for almost ten

years and only when this Court took up this case on

29.07.2021, the respondent again issued a show cause

notice against the petitioner and finally a show cause

dated 17.08.21 was served upon the petitioner on

19.08.21. The petitioner immediately replied to it stating

that due to medical reasons he was forced to take leave

and requested the respondents to allow him to join the

services. But the respondents, vide memo dated 09.09.21

(Annexure-12), dismissed the petitioner from his service.

10. In view of the aforesaid discussions, the

instant writ application requires interference for following

reasons:-

(i) Rule 76 (b) of Jharkhand Service Code clearly

stipulates that a government employee can be removed

from service, if he remains absent unauthorized for more

than five years after following procedure laid down in the

Civil Services (Classification, Control and Appeal) Rules,

1930 and under Bihar and Orissa Subordinate Services

Discipline and Appeal Rules, 1935.

In the case of "Sidhnath Upadhya Vs. State of

Bihar" reported in 1991 (2) PLJR 148, while considering

the judgment passed in the case of "Sobhana Das Gupta

Vs. The State of Bihar" reported in 1974 PLJR 382, the

impugned order of dismissal from service was set aside

as no procedure has been followed before passing the

order of dismissal. The learned counsel for the petitioner

therefore has tried to impress upon the Court that

necessary procedure prior to termination from service

has to be followed which in effect means that a

departmental proceeding has to be initiated and without

resorting to a departmental proceeding, the service of the

petitioner has been terminated.

In the case of "Sobhana Das Gupta Vs. State of

Bihar (supra) which struck down Rule 76 of the Bihar

Service Code as it then was, leads to an ultimate

conclusion which can be arrived at is that, there is no

question of automatic dismissal or deemed dismissal or

removal of the petitioner from the service of the State

Government. In such circumstances, there is no option

left for the authorities even in case of absence without

leave for a period of more than 5 years, but to hold a

departmental proceeding and consequent thereto arrive

at a substantive finding. This having not been done by

the respondent authorities the same is in violation of the

principle of natural justice which cannot be allowed to be

sustained.

Admittedly; in the instant case no

departmental proceeding has ever been initiated against

this petitioner nor the petitioner was given any

opportunity of hearing, thus the impugned order is bad

in law and fit to be quashed on this score alone.

(ii) From record it further transpires that vide

letter no.54 dated 4.3.2006 (Annexure-10 series), the

Block Education Extension Officer, Baharagora while

forwarding the acceptance/joining of the petitioner before

District Superintendent of Education admits that the

petitioner kept the respondents update regarding his

health throughout his leave period and even after that.

It further transpires from the record that an

enquiry was directed to be conducted through Block

Education Extension Officer, Baharagora, who conducted

an enquiry and submitted its report informing that the

petitioner after medical leave gave his joining on

03.03.2006 along with medical certificates and work

description from his school concerned (Annexure-7 to the

supplementary affidavit dated 2.2.2018). This Court fails

to understand that when internal enquiry report was

submitted by the concerned BEEO way back in

November, 2008; there was no reason to delay the matter

for years together and only after a direction of this Court

to take update status of the case; issued show-cause

notice and terminated the petitioner under Rule 76 (b) of

Jharkhand Service Code.

(iii) Even assuming for a moment that after

issuance of two show cause notices the petitioner did not

reply; then what was the reason for sitting tight over the

matter and even not informing this Court about the

development and it is only when the case was taken up

for hearing before this Court, a termination order has

been issued in a haphazard manner without following

due process of law.

It is true that concept of delay and laches

operates against the litigant for initiation of any action

for enforcement of his/her fundamental rights. It is also

true that there is no rider or time limit in Rule 76(b) of

the Jharkhand Service Code with respect to taking action

against the government employee; however, the

Respondents State cannot be left scot free for the delay

committed by them in taking action. The period of almost

fifteen years in terminating the petitioner from the date of

his joining; without any explanation as to what prevented

them to start/conclude the proceedings under Rule 76 (b)

of the Code when the internal enquiry report was

submitted by the concerned BEEO in the year 2008

itself. This clearly goes to show that terminating the

petitioner under the Rule is arbitrary exercise of power

and thus cannot sustain in the eye of law.

The Indian judicial system follows rules of

equity in the court of justice. The doctrine of 'Delay or

Laches' is thus an equitable doctrine. In the case of

G.C.Gupta & Ors. v N.K.Pandey & Others reported in

(1988)1 SCC 316, the Hon'ble Supreme court has held

that inordinate delay is not merely a factor for the court

to refuse appropriate relief but also a relevant

consideration it be so minded not to unsettle settled

things. Here is the case where the respondents were at

responsibility to start the proceeding at least after the

recommendation of the Director Primary Education,

Jharkhand's letter no.1171 dated 04.05.2011; however,

they failed to act upon it.

This is a fit case where the impugned order

should be quashed and set aside on the ground of delay

committed by the respondent State, inasmuch as, the

petitioner gave his joining in the year 2006 and thereafter

the internal enquiry report was submitted in his favour

in 2008; even the second show cause notice was issued

in the year 2011 but in the year 2021, the petitioner has

been terminated giving reference of the recommendation

of the Director Primary Education, Jharkhand letter

no.1171 dated 04.05.2011, and that too without

following due process of law under Rule 76(b) of the code.

Further, no explanation has been given by the

respondent for such a huge delay and laches on their

part. The respondents cannot take benefits of its own

wrong doing that petitioner did not reply to the show-

cause notice.

(iv) The dismissal order is also non-speaking

order. The respondents had not even considered the

extraordinary circumstances that forced the petitioner to

take leave.

11. The judgment relied upon by the counsel for

the respondent-State passed by the Coordinate Bench of

this Court reported in 2013(2) JCR 348 (Jhar.) is not

applicable in the instant case, inasmuch as, in the said

case the petitioner did not give any information of his

absence from 12.2.1985 to 2004 i.e. about 19 years. Here

it is an admitted case that the petitioner went on leave

after informing the department about his illness and kept

on informing about his prolong illness which has also

been admitted in the letter written by the BEEO to the

District Education Officer.

12. In view of the aforesaid discussions and the

conduct of the respondents which has been discussed in

detail herein above; remanding this case back to the

respondents will only be mere formalities, inasmuch as,

the demeanor of the respondents is very clear as the

respondents have made up their mind to terminate the

service of the petitioner without going into the facts and

circumstances of the case.

13. As a result, the instant writ application, is

hereby, allowed. The impugned order as contained in

letter no.2184 dated 09.09.2021 (Annexure-H to the

supplementary counter affidavit dated 16.09.2021), is

hereby, quashed and set aside and the respondents are

directed to reinstate the petitioner forthwith from the

date of receipt/production of a copy of this order.

The respondents are also directed to pay 50%

back wages from the period the petitioner gave his joining

in the year 2006 till the date of reinstatement for the

obvious reason that the petitioner was never at fault for

not doing his job and it was only and only the

respondents who prevented the petitioner from doing his

occupation. Necessary payment order in favour of the

petitioner shall be issued within a period of three months

from today.

14. With the aforesaid observations and directions

this writ application stands allowed.

(Deepak Roshan, J.)

Jharkhand High Court, Ranchi.

Dated:-28/01/2022 Fahim/-A.F.R/