Jharkhand High Court
Rabindra Kumar Jha vs The State Of Jharkhand on 17 February, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 W.P. (S) No. 4261 of 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 4261 of 2023
Rabindra Kumar Jha ... Petitioner
-Versus-
1. The State of Jharkhand
2. The Secretary, Department of Education, Jharkhand, Ranchi
3. The Director, Secondary Education, Government of Jharkhand, Ranchi
4. The Regional Deputy Director of Education, North Chhotanagpur
Division, Hazaribag
5. The District Education Officer, Dhanbad ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Mahesh Tewari, Advocate
Mr. Ritesh Kumar Mahto, Advocate
For the State : Mr. Munna Lal Yadav, S.C. (L&C)-III
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04/17.02.2024 Learned counsel for the respondent-State submits that the counter
affidavit is ready and it has already been served upon the learned counsel
for the petitioner. He submits that since the matter was on Board, the same
was not filed in the Registry.
2. In view of such submission, the counter affidavit is taken on record.
3. Heard Mr. Mahesh Tewari, learned counsel for the petitioner and
Mr. Munna Lal Yadav, learned counsel for the respondent-State.
4. The prayer is made in this writ petition for counting the services of
the petitioner as an Assistant/Clerk on and from 23.07.1992 i.e., the date of
his illegal termination and till 28.08.1999 on which date, the earlier writ
petition filed by the petitioner was allowed, whereby, the termination order
of the petitioner was quashed. The further prayer is made for direction upon
the respondents to treat the period of the petitioner's services from
23.07.1992 till 28.08.1999 as continuation in service and count his services
for grant of all consequential benefits in post retirement and pensionary
benefit.
5. Mr. Mahesh Tewari, learned counsel for the petitioner submits that the
petitioner was appointed as a Clerk in the Rajkiya Uchaya Vidayalaya at
Shitalpur in the district of Dhanbad in the year 1988. The petitioner was
doing his service with all satisfaction of the higher authorities and all of a
sudden, his services were terminated by the Memo No.327 dated
23.07.1992 on the ground that sanction for the appointment of the
petitioner and others was not obtained from the competent authority,
namely the District Education Officer (DEO), Dhanbad. He further submits
that the said termination order was challenged by the petitioner in C.W.J.C.
No.3921 of 1996(R), which was allowed vide order dated 12.12.1996 by
which the termination order was quashed. He submits that the said order
was passed based on the decision of the Coordinate Bench in C.W.J.C.
Nos.1846 of 1993(R) and 1186 of 1996(R) and considering the judgments
passed in those case, it was found that the case of the petitioner was on
similar footing and, therefore, the termination order was quashed. He also
submits that the said order passed by the learned Single Judge was tested
by the respondent-State before the Division Bench of this Court in L.P.A.
No.64 of 1998(R), which was dismissed vide order dated 08.04.1999. He
submits that the order passed by the Division Bench of this Court was
further taken before the Hon'ble Supreme Court in S.L.P. No.7153 of 1999,
which was also dismissed vide order dated 06.01.2000. He further submits
that after the order of the writ Court, the petitioner was directed to join his
services on 28.08.1999 and he retired on 30.06.2019. He also submits that
the petitioner has been paid retirement benefit counting his services w.e.f.
28.08.1999 and the period of illegal termination i.e. from 23.07.1992 till
28.08.1999 was not counted by the respondent-State, as a result of which,
the petitioner's post retirement benefit and pensionary benefit have been
severely affected. He submits that the petitioner was found not worked
during that period of illegal termination by the respondent-State, which was
further quashed by the High Court and in view of that, the petitioner is
entitled for counting of the said service as well as retirement benefit.
6. Mr. Munna Lal Yadav, learned counsel for the respondent-State by way
of referring counter affidavit submits that the petitioner is not entitled for
the period from 23.07.1992 to 28.08.1999 as he has not worked during that
period. He further submits that the High Court has not directed any back
wages while quashing the termination order and in view of that, the
petitioner is not entitled for counting of that period, however, he does not
dispute dismissal of the said L.P.A. as well as S.L.P. by the Division Bench of
this Court as well as the Hon'ble Supreme Court respectively.
7. It is an admitted position that the petitioner was appointed as Clerk
on 12.03.1988. Subsequently, the service of the petitioner was terminated
by the order dated 23.07.1992, which was challenged by the petitioner
before this Court in C.W.J.C. No.3921 of 1996(R) and vide order dated
12.12.1996, the termination order of the petitioner was quashed, which was
further challenged by the respondent-State before the Division Bench of this
Court in L.P.A. No.64 of 1998(R) and that L.P.A. was dismissed vide order
dated 08.04.1999, against which, the S.L.P. No.7153 of 1999 was filed by
the respondent-State, which was also dismissed by the Hon'ble Supreme
Court vide order dated 06.01.2000. Thus, quashing order has attained
finality.
8. In this background, it is an admitted position that so far as
consequential benefit including counting of service is concerned, there is no
doubt that if the petitioner has not worked for certain period on the basis of
No work No Pay, the order can be passed, but there are parameters of
passing such order. If the Court comes to the conclusion that there is
illegality on behalf of the authority concerned to not allow the petitioner to
work, the Court is required to pass appropriate order.
9. In the case in hand, it has already been held by this Court that the
said termination order was not in accordance with law and, as such, the
termination order was already quashed, which was affirmed up to the
Hon'ble Supreme Court. Thus, for the wrong of the respondent-State, the
petitioner was prevented to work and if such a situation is there, the case of
the petitioner is covered in light of the judgment of the Hon'ble Supreme
Court in the case of Pradeep son of Raj Kumar Jain v. Manganese Ore
(India) Ltd., reported in (2022) 3 SCC 683, in which, it has been held
that the question arises as to whether the back wages is to be given and as
to what is to be the extent of that back wages, these are the aspects which
will depend on the facts of the case as noted in the case of Deepali
Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.)
& Ors., reported in (2013) 10 SCC 324.
10. Thus, it is well settled that in a case where it is found that the
employee was not at all at fault and yet, he was visited with
illegal termination or termination which is actually activised by malice,
it may be unfair to deny him the fruits of the employment which he
would have enjoyed, but for the illegal/malafide termination, he was not
allowed.
11. In view of that, the effort of the Court must be to then to restore the
status quo in the manner which is appropriate in the facts of each cases.
12. It is crystal clear that the petitioner was not allowed to work and in
view of that, liability cannot be fastened upon the petitioner and in that
view of the matter, it is a fit case to command upon the respondent-State in
the nature of mandamus to count the services of the petitioner w.e.f.
23.07.1992 to 28.08.1999 and to pay retirement benefits counting that
period. The respondent-State is directed to release salary and other
consequential benefits including retirement benefits in favour of the
petitioner counting the said period within a period of six weeks from the
date of receipt/production of a copy of this order.
13. Accordingly, this petition is allowed in above terms and disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/
