Md. Mainul Khan Son Of Late Md. ... vs State Of Jharkhand
2022 Latest Caselaw 3522 Jhar

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI

                              W.P.(S) No. 3791 of 2015

            Md. Mainul Khan son of late Md. Jamaluddin Khan, Resident of
            Village & P.O. Srikund, P.S. Kotal Pokhar, District Sahebganj
                                                         ...     ...     Petitioner
                                      Versus
            1. State of Jharkhand
            2. Secretary, Human Resource Development Department,
               Government of Jharkhand, Project Building, P.O. Dhurwa, P.S.
               Jagarnathpur, District-Ranchi
            3. Director, Secondary Education, Government of Jharkhand, Project
               Building, P.O. Dhurwa, P.S. Jagarnathpur, District-Ranchi
            4. District Education Officer, Sahebganj, P.O. and P.S. Sahebganj,
               District-Sahebganj
            5. Head Master, Millat High School Srikund, P.O. Srikund, P.S.
               Bharharwa, District Sahebganj
            6. Accountant General, Jharkhand, Doranda, P.O. and P.S. Doranda,
               District-Ranchi                     ...      ...        Respondents
                                      ---

CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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            For the Petitioner        : Mr. Bhanu Kumar, Advocate
            For the Respondents       : Mr. K.K. Singh, Advocate
                                        Mr. Asadul Haque, Advocate
                                        Mr. Birendra Burman, Advocate
            For the Resp. No. 6       : Mr. Shivam Singh, Advocate

                                         ---

14/05.09.2022        Learned counsel for the parties are present.

2. This writ petition has been filed for the following reliefs:-

"(i) For issuance of an appropriate writ(s)/order(s)/direction(s) or a writ in nature of certiorari for quashing the impugned letter no. 1209 dated 09.12.2006 (Annexure-5) issued by the District Education Officer, Sahebganj by which the services of the father of the petitioner has been terminated on the sole ground that there is discrepancy in the date of birth of petitioner's father, and instead of date of birth recorded in the service book i.e. 21.08.1947, the date of birth of the petitioner's father is something else, but surprisingly enough the impugned letter does not disclose the so-called actual date of birth and without any show cause, without any enquiry in a summary manner, the services of the petitioner's father was terminated within one year of his actual retirement i.e. 31.08.2007, and as such the impugned letter cannot be sustained in the eyes of law and fit to be quashed.

(ii) For issuance of an appropriate writ(s)/ order(s)/direction(s) or a writ in nature of mandamus

commanding upon the respondent authorities for payment of post retiral benefits including the family pension, gratuity, amount of leave encashment, amount of provident fund and amount of group insurance scheme as a consequential relief to the petitioner along with statutory interest because for no fault on the part of the petitioner's father, the post retiral benefits have not been paid till date to the family members of the petitioner's father."

Argument on behalf of the petitioner

3. Learned counsel for the petitioner has submitted that the impugned order dated 09.12.2006 has been challenged by the petitioner, being the son of the deceased employee of Minority School, by filing the present writ petition in the year 2015 as the right of the petitioner and his family members has been affected by virtue of the impugned order. If the impugned order is allowed to stand, the petitioner and his family members will remain deprived of the post death/ pensionary benefits.

4. The learned counsel submits that even if there was dispute with regard to date of birth, the father of the petitioner having served the institution for 38 years was still entitled for certain benefits for the service rendered by him, but unfortunately, he expired in the year 2008. Thereafter no steps were taken by the family members to challenge the order dated 09.12.2006 and the writ petition has been filed only in the year 2015. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court in the case of "Rushibhai Jagdishchandra Pathak Vs. Bhavnagar Municipal Corporation" decided on 18th of May, 2022 and has referred to paragraphs 9, 10, and 11 of the said judgment. He has also relied upon the judgment passed in Civil appeal No. 4100 of 2022 decided on 20th of May, 2022 in the case of "Shri M.L. Patil (Dead) through LRs versus The State of Goa and Anr." reported in (2022) LiveLaw (SC) 537 to submit that the right to pension is a continuing right. The learned counsel for the petitioner has also submitted that the impugned order has been passed without any show cause and without any departmental proceeding initiated against the father of the petitioner. Further, in the impugned order, no definite date has been mentioned regarding the date of birth and it is only alleged that the father of the

petitioner had made certain interpolation in connection with date of birth.

Arguments on behalf of the respondents

5. The learned counsel appearing on behalf of the respondents, on the other hand, has opposed the prayer of the petitioner on the ground of delay and laches and has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2014) 4 SCC 108 (Chennai Metropolitan Water Supply and Sewerage Board and Others Vs. T. T. Murali Babu" (para 16). So far as the merits of the case is concerned, the learned counsel does not dispute that no departmental proceeding as such was initiated against the father of the petitioner prior to passing of the impugned order.

Findings of this court

6. This writ petition has been filed on 14.08.2015 by the petitioner who claims to be the son of one Md. Jamaluddin Khan, inter alia, challenging the order no. 1209 dated 09.12.2006 (Annexure- 5) issued by the District Education Officer, Sahebganj by which the services of the father of the petitioner was terminated on the sole ground that there is discrepancy in the date of birth and instead of the date of birth as recorded in the service book i.e. 21.08.1947, the date of birth was something else. Consequential relief has been prayed for seeking a direction upon the respondents for payment of post retiral benefits including the family pension, gratuity, amount of leave encashment, amount of provident fund, group insurance, etc. The services of the father of the petitioner was terminated within one year of his actual date of retirement i.e. 31.08.2007. However, case of the petitioner is that the impugned order does not disclose the actual date of birth and the same has been passed without any show-cause and without any enquiry. Thus, the father of the petitioner was removed from service with effect from 09.12.2006 instead of 31.08.2007.

7. It is not in dispute that Md. Jamaluddin Khan was appointed as peon on 01.08.1968 in Millat High School, Srikund, Sahebganj and the copy of the service book as annexed by the petitioner at Annexure- 2 reveals the date of birth of the father of the petitioner as 21.08.1947. He was granted 4th pay-revision,5th pay- revision and upon completion of 10 years of satisfactory service, 1st time-bound promotion.

8. As per the date of birth recorded in the service-book i.e. 21.08.1947, the father of the petitioner was scheduled to retire on 31.08.2007. However, vide impugned order dated 09.12.2006, the in-charge headmaster of the school was informed that the service of the petitioner's father has been terminated with immediate effect. By the impugned order dated 09.12.2006, the in-charge headmaster was directed to immediately communicate about termination of the services of the father of the petitioner and he was asked to give the calculation of the excess amount paid to the father of the petitioner within three days, failing which it will be assumed that the in-charge headmaster was also hand in gloves with the father of the petitioner. However, the impugned order (Annexure- 5) does not reflect as to what would have been the date of birth of the father of the petitioner as per the respondents. The impugned order further does not reflect as to the documents on the basis of which it was alleged that father of the petitioner had interpolated with the recording of date of birth in service book. However, nothing has been mentioned as to how the father of the petitioner had responded to the impugned order dated 09.12.2006, but it has been brought on record that he expired on 11.07.2008 (Annexure-6). The petitioner has also annexed a copy of the minutes of the meeting of the managing committee of the school dated 14.05.2008 which was sent to the District Superintendent of Education, Sahebganj on 07.07.2008 (Annexure-7 series). In the minutes of meeting, it has been recorded that the father of the petitioner was removed from service prior to his date of retirement and therefore, the managing committee made a request to the District Superintendent of Education for payment of post-retirement benefit to the father of the petitioner. No order has been brought on record denying or allowing the claim of post-retirement benefit to the father of the petitioner though the school had forwarded the same to the District Superintendent of Education, Sahebganj on 07.07.2008. Thus, the petitioner has challenged the premature discharge of the father of the petitioner from services on 09.12.2006 though he was scheduled to retire on 31.08.2007.

9. The records of the case indicate that the father of the petitioner never protested against the order of discharge of his service vide order

dated 09.12.2006 and after his death on 11.07.2008, there was complete silence from the side of the petitioner and he woke up from the slumbers only on 31.07.2015 when he wrote a letter to the District Superintendent of Education, Sahebganj asking for post death benefits of his father and thereafter, within a period of 15 days, the writ petition was filed on 14.08.2015 for the aforesaid relief. There is no explanation from the side of the petitioner for the enormous delay of about 7 years in filing the writ petition, that too, not by the person against whom the impugned order of discharge was passed, but by a person claiming to be his son who has challenged the order of discharge passed way back as on 09.12.2006 which was never challenged by his father during his lifetime.

10. It further appears from the counter-affidavit filed by the respondent no. 5 that name of the father of the petitioner was struck off on account his termination from service and the salary was also stopped since December, 2006. It is also not clear from the records as to whether the father of the petitioner, during his lifetime, ever challenged the order dated 09.12.2006 in any proceeding, rather the records indicate that the same was never challenged and the school recommended for payment of retirement benefits through the minutes of meeting which was forwarded to the District Superintendent of Education vide communication dated 07.07.2008. With regards to this communication dated 07.07.2008, it has been simply stated in the counter affidavit that the father of the petitioner was terminated from service and did not retire from service and there is no provision in law to give retirement benefits to discharged employees who were guilty of financial irregularities of government money as the father of the petitioner illegally obtained money in excess after crossing the actual date of retirement by manipulating the records. It is important to note that neither the father of the petitioner during his life time disputed the allegation of manipulation of records and drawing money in excess beyond the actual date of retirement, nor the minority school, where the petitioner's father was working, ever disputed the order dated 09.12.2006. Rather, the school accepted and acted in pursuance of the said order by discontinuing the father of the petitioner from service and forwarded its minutes of meeting to the District Superintendent of

Education for payment of his post-retirement benefits. The father of the petitioner did not even question discontinuance from service pursuant to the impugned order. Thus, not only the father of the petitioner but also the minority school in which he was working had accepted that the father of the petitioner had worked beyond the date of his actual retirement and had withdrawn excess amount.

11. Although as per the writ records no disciplinary proceedings was initiated against the father of the petitioner who within a short span of time from the issuance of the impugned order dated 09.12.2006 expired on 11.07.2008 and after his death no disciplinary proceedings or proceedings for recovery of excess amount paid could have been initiated. The respondents have rightly relied upon Rule 101 of the Jharkhand Pension Rules to submit that resignation, dismissal or removal or misconduct entails forfeiture of past service. The conduct of the father of the petitioner in not challenging the impugned order during his lifetime and also the conduct of the minority school in accepting the impugned order by discontinuing the father of the petitioner from service is enough to indicate that the allegations stood admitted by the father of the petitioner as well as the minority school. It is also important to note that the father of the petitioner expired before expiry of the prescribed period for initiating any proceedings under 43(b) of Jharkhand pension Rules.

12. It is well settled that the law of limitation or even the principles of delay and laches in writ jurisdiction rests on the foundations of greater public interest for three reasons, namely, (a) that long dormant claims have more cruelty than justice in them; (b) that a defendant might have lost the evidence to disapprove a stale claim; and (iii) that persons with good causes of action (who are able to enforce them) should pursue them with reasonable diligence.

13. There is no explanation for delay and laches on the part of the petitioner in moving this Court after a long gap, not even a statement has been made in the writ petition to explain the long gap of about 9 years in challenging the impugned order dated 09.12.2006. The present case is not a simple case of payment of pension or post- retirement /post death benefits rather the service of the father of the petitioner was terminated on account of allegation levelled against him

and the said order dated 09.12.2006 terminating the services of the father of the petitioner remained un-challenged for a number of years. The pension/family pension etc. would have been only a consequential relief. The right of the petitioner or his family members to receive family pension or post death benefits of the father of the petitioner stood extinguished by issuance of impugned order dated 09.12.2006 which remained unchallenged for long for about 9 years and there is no explanation for not challenging the same for such a long time. In the circumstances where the right to receive pension is extinguished on account of an adverse order (i.e. impugned letter dated 09.12.2006), it cannot be said that the right to receive pension was a continuing cause of action and can be claimed at any point of time.

14. On account of the aforesaid facts, the judgement relied upon by the petitioner reported in (2022) LiveLaw (SC) 537 (Supra) does not apply to the facts and circumstances of this case and it cannot be said that the cause of action of the present case i.e. challenge to impugned order dated 09.12.2006 was a continuous cause of action. The other judgement relied upon by the petitioner passed in the case of "Rushibhai Jagdishchandra Pathak Vs. Bhavnagar Municipal Corporation" in Civil Appeal No. 4134 of 2022 and other analogous cases also does not apply to the facts and circumstances of this case and does not help the petitioner in any manner as the impugned order dated 09.12.2006 does not give rise to recurring cause of action to claim salary or pension.

15. As a cumulative effect of the aforesaid findings, this court is not inclined to grant the relief as prayed for by the petitioner under Article 226 of the Constitution of India.

16. Accordingly, this writ petition is dismissed.

(Anubha Rawat Choudhary, J.) Binit/Pankaj