Hiralal Mahato vs State Of Jharkhand
2023 Latest Caselaw 3078 Jhar

                                      1

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    L.P. A. No. 293 of 2020
Hiralal Mahato, aged about 71 years, son of Late Bistu Mahato, Retired
Headmaster, Govt. Middle School, Dhokra, Dhanbad-01, resident of village-
Bhikhrajpur, P.O. & P.S. - Baliapur, District- Dhanbad
                                                        --- --- Petitioner/Appellant
                                 Versus
1.State of Jharkhand
2.Accountant General, Jharkhand, Ranchi, P.O. & P.S.-Doranda,
  District-Ranchi
3.Divisional Commissioner, North Chhotanagpur Division, Hazaribag, P.O.
  & P.S.- Hazaribag, District- Hazaribag
4.Deputy Commissioner, Dhanbad, P.O. & P.S.- Dhanbad, District-Dhanbad
5.District Superintendent of Education, Dhanbad, P.O. & P.S.-Dhanbad,
 District-Dhanbad
6.Treasury Officer, Dhanbad, P.O. & P.S.-Dhanbad, District-Dhanbad
7.Headmaster, Government Middle School, at Kalyanpur, P.O. & P.S.-
  Govindpur 2, District-Dhanbad
8.Area Education Officer, Dhanbad, P.O. & P.S.-Dhanbad, District-Dhanbad
9.Area Education Officer, Govindpur, P.O. & P.S.-Govindpur, District-Dhanbad
10.District Provident Fund Officer, Dhanbad, P.O. & P.S.-Dhanbad,
  District-Dhanbad
                                                --- --- Respondents/Respondents


                                          .......

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
        HON'BLE MR. JUSTICE NAVNEET KUMAR

For the Appellant         : Mr. Manoj Tandon, Advocate
                          : Ms. Neha Bhardwaj, Advocate
                          : Mr. Adamya Kerketta, Advocate
For the Respondent-State : Mr. Rishi Raj Verma, A.C to S.C.-III
For the Respondent No.2 : Mr. Sudarshan Shrivastava, Advocate

Order No.05/ Dated 22nd August, 2023

       Per Sujit Narayan Prasad, J.

The instant appeal preferred under Clause 10 of the Letters Patent, is directed against the order/judgment dated 22.06.2020 passed in W.P.(S) No. 5803 of 2012 by the learned Single Judge of this Court whereby and where under the order dated 17.01.2012 passed by the respondent no.2 as also the Office order contained in memo no. 358 dated 15.02.2010 has been refused to be interfered with while disposing of the writ petition.

2. Brief facts of the case as per the pleadings made in the writ proceeding, which are required to be enumerated herein, read as under:- The writ petitioner was appointed as a Science Teacher on the fixed scale

of Rs. 150/- by order dated 20.11.1973. Thereafter he passed B.Sc. Examination from Ranchi University and was given the scale pursuant to the 4th Pay Revision Committee as contained in Resolution dated 31.12.1991 in the scale of Rs. 1080/- w.e.f. 01.04.1981. The petitioner, after issuance of order contained in letter no. 26/1982, was sent on deputation to Project High School, Shitalpur, Dhanbad. Petitioner obtained necessary training from Government Teachers Training College, Ranchi, and passed the examination of Session 1980-81 in 2nd division by result published on 28.07.1982. After passing of the necessary training, the petitioner was given the B.Sc. Trained Scale of Rs.8500-30-12070-1360 w.e.f. the date of passing of the training dated 28.07.1982 by issue of an order dated 10.02.1990.

2(i). Pursuant to the revision of the scale of teachers under 5th Pay Revision Committee Report which was made effective by resolution as contained in memo no. 6021 dated 18.12.1989 at Rs. 1640-60-2000- 2900 we.f. 15.2.1980, petitioner thereafter was promoted as Headmaster in the pay scale of Rs. 2000-60- 2300-3500 in next higher scale w.e.f. 28.07.1994 and this fixation was also made thereafter. The aforesaid promotion of the petitioner to the post of Headmaster in the aforesaid scale was also thereafter confirmed by the District Education Officer, Dhanbad, in memo no. 406 dated 14.9.1996 w.e.f. 28.7.1996 in the scale of Rs.2000-60-2800-25-3500 and the pay of petitioner was accordingly fixed at Rs. 2375/-. Thereafter, petitioner joined the post of Headmaster of the Middle School at Dhokra, Dhanbad -1 on 3.1.1998. The writ petitioner thereafter passed the Hindi Noting & Drafting Examination, in examination held on 7.5.2006. Pursuant to the resolution of the State Government as contained in memo no. 660 dated 28.2.2009, the petitioner's pay was revised in the scale of Rs. 9300-34800 and the petitioner's scale was fixed at Rs. 18,420/- w.e.f. 1.1.2006. But petitioner was given the scale in the grade pay of Rs. 4,800/-, wherein the petitioner was entitled to the grade pay scale of Rs. 5,500/-. 2(ii). The writ petitioner, however, retired from the post of Headmaster of Middle School, Dhokra, at Dhanbad-1, on 31st May, 2009. After retirement of the petitioner, the petitioner was given a certificate by the Headmaster Incharge that the petitioner was not having any arrear over the schools upon the petitioner. The pay scale of the petitioner as

Headmaster under 5th Pay Revision Committee Report which was made effective from 01.01.1996, was fixed on 18.6.1999 approved by the District Superintendent of Education. The statement of fixation of pay, as Headmaster under the 6th Pay Revision which was made effective from 1.1.2006, from the scale of Rs.6500-200-10500.

2(iii). At the time of working as Headmaster, he became the Drawing & Disbursing Officer at the Middle School and the petitioner was put under suspension on vague allegation of discipline for not utilizing the fund for Sarva Shiksha Abhiyaan by memo no. 1996 dated 14.10.2006. It is stated that for expenditure, the petitioner was not only responsible, but the Gram Shiksha Samittee was responsible for Sarva Shiksha Abhiyan. 2(iv). The petitioner submitted a show cause and disputed the charges levelled against him. The Area Education Officer enquired into the allegation against the petitioner, but enquiry report was not served upon the petitioner nor was he given any opportunity to give explanation. By issuance of memo no. 358 dated 15.2.2010, after about 9 months of the date of retirement of petitioner, the petitioner was punished under the certificate of District Superintendent of Education by issue of memo no. 358 dated 15.2.2010 of stoppage of one annual increment of petitioner. The petitioner filed departmental appeal before the Divisional Commissioner, North Chhotanagpur Division, Hazaribag, against order of punishment. The said appeal was not disposed of, therefore, the petitioner filed a reminder on 14.3.2011 for early disposal of the appeal. 2(v). Since the petitioner's appeal was not disposed of and the petitioner was refused the pensionary benefit and actual payment, he filed W.P. (S) No. 5144/2011 and by order dated 14.10.2011, the writ petition was disposed of with a direction upon the respondent to decide the service appeal.

2(vi). After the decision of the Hon'ble Court, the Divisional Commissioner, respondent no.3, by reasoned order dated 17.1.2012, had dismissed the appeal.

2(vii). Being aggrieved the writ petitioner approached the Writ Court in W.P.(S) No. 5803 of 2012, wherein by order dated 22.06.2020 the learned Single Judge has disposed of the writ petition, however, without interfering with the impugned order and hence this appeal.

3. It appears that the writ petitioner was posted as Science Teacher

and was holding the post of Head Master in the capacity of In-charge. He was proceeded departmentally for not spending the money which has been earmarked for expenditure of " Sarva Siksha Abhiyan". Altogether 7 allegations have been leveled in the charge. As per the fact only one charge being charge no.1 has been proved by the Inquiry Officer. So far as other charges are concerned, the charges were not found to be proved. The authority on acceptance of finding so far as Charge No.4 is concerned, which is found to be proved by the inquiry officer, has imposed punishment of stoppage of one annual increment vide order dated 15.02.2010. The writ petitioner carried the said order to the appellate authority. It appears that when the appeal was pending the writ petitioner had approached this Court by filing writ petition being W.P.(S) No. 5144 of 2011 for a direction to dispose of the appeal filed by the petitioner and fix the pension. The appellate authority, therefore, passed the order dated 17.01.2012 but affirming the order dated 15.02.2010. The writ petitioner being aggrieved with both the orders had again filed writ petition no. 5803 of 2012. The said writ petition was disposed of but without interfering with the order of the punishment against which the present appeal.

4. Learned counsel for the writ petitioner / appellant has taken the ground that the writ petitioner, although, was superannuated on attaining the age of superannuation on 31.05.2009, but the order of punishment was imposed on 15.02.2010, i.e., after separation of the writ petitioner from service in consequence of his superannuation on 31.05.2009. Therefore, the ground was agitated before the appellate authority also that after superannuation the employer, the concerned Department, was having no jurisdiction to pass any order of punishment in the instant case i.e., withholding of one annual increment. But the appellate authority, although has taken note of the said fact, but there is no finding to that effect. Further the learned Single Judge has not appreciated the aforesaid fact, hence the instant appeal.

5. While on the other hand learned counsel for the Respondent State although has defended the impugned order on the ground that the charge no. 4 has been found to be proved, but it is submitted that so far as the jurisdictional issue is concerned, i.e., the jurisdiction to impose the punishment by the department concerned after retirement is not

permissible.

6. This Court after having heard learned counsel for the parties and on perusal of the materials available on record as also the findings so recorded by the learned Single Judge in the impugned order has proceeded to examine the propriety of the impugned order both passed by the Original Disciplinary authority, Appellate authority and order passed by the learned Single Judge.

7. The law is well settled that the day when the public servant retire from service on attaining the age of superannuation, the relationship of employee- employer will break. The moment such relationship will came to an end, such department will have no jurisdiction to inflict punishment as is required to be inflicted under the applicable Conduct Rule save and except the proceeding is to be converted under the provision of applicable Pension Rule but here in, it is the admitted position that although the departmental proceeding was initiated while the writ petitioner was in service but the punishment was inflicted after superannuation of the writ petitioner i.e., on 31.05.2009 vide order dated 15.02.2010.

8. It appears that the fact about the jurisdictional error in passing the impugned judgment of punishment has also been brought to the notice of the appellate authority wherein, the same has been taken note but there is no finding to that effect. Further the appellate authority was also under scrutiny before the learned Single Judge but there is no finding to that effect even in the findings of the learned Single Judge.

9. The question of jurisdiction, since, is core of the issue, hence the same ought to have been decided by the Appellate Authority as also by the learned Single Judge. The jurisdictional issue since goes to the root and if the root itself suffer from illegality, the offshoot will also have no significance. Here in also similar is the fact i.e., the order of punishment dated 15.02.2010 has been passed by the Disciplinary Authority after superannuation of the writ petitioner on 31.05.2009. Therefore, the department concerned, who has passed the order has no jurisdiction to inflict the punishment as enshrined under the Conduct Rule by withholding one annual increment.

10. Accordingly, in our considered view the order inflicting punishment dated 15.02.2010 suffers from illegality. The aforesaid

aspect of the matter has also not been considered by the learned Single Judge, hence the order passed by the learned Single Judge dated 22.06.2020 requires interference.

11. In view of the aforesaid discussion, this Court is of the view that the order passed by the learned Single Judge needs to be interfered with. Accordingly, the order dated 22.06.2020 passed in W.P.(S) No. 5803 of 2012 by the learned Single Judge is hereby quashed and set aside.

12. In the result, the instant appeal stands allowed.

13. The consequence thereof W.P.(S) No. 5803 of 2012 is also allowed. The appellant/ writ petitioner is entitled for arrears of difference of salary, which has been withheld in consequent to the order of punishment, which is to be released within a period of 3 months from the date of receipt of the order of this Court.

14. Mr. Manoj Tandon, learned counsel for the appellant, in view of the Office note that the appeal has been filed within the limitation period, therefore, intends not to press I.A. No. 5062 of 2020.

15. As such, instant I.A. No. 5062 of 2020 is dismissed as not pressed.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.) A.Mohanty AFR