The High Court of Jharkhand recently comprising of a bench of Justice Deepak Roshan observed that Since the disciplinary proceedings were conducted when the employee was working, the disciplinary authority has the authority to place the punishment of dismissal/major penalty on the respondent even though he has reached the age of superannuation. 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. (Bhaswati Sharma vs The State of Jharkhand)
Facts of the case
The instantaneous writ application has been preferred by the petitioner praying therein for quashing the charge sheet issued under letter No.548, and also for quashing the letter No.1159; whereby the petitioner has been issued second show-cause notice as regards the report of the enquiry officer finding that the appointment of the petitioner was made irregular. Petitioner has also challenged the enquiry report.
Contention of the Parties
Mr. Rajeeva Sharma, learned senior counsel for the petitioner submitted that now since the petitioner has retired on 31.01.2018; as such the department cannot pursue with the departmental proceeding, inasmuch as, there is no charge of misconduct. He further submits that for any action to be taken after retirement there are provisions under Bihar Pension Rule and Rule 43(b) clearly stipulates that if there is misconduct or pecuniary loss to the government then only the said provision can be invoked.
In nutshell, Mr. Sharma argued that after retirement the respondent-State cannot continue with the departmental proceeding. He lastly submitted that the departmental proceeding which was initiated and the second show-cause which was issued was stayed by this Court vide order dated 28.08.2012 and the respondents were restrained from taking any final decision on the departmental proceeding and now since the petitioner has retired no action can be taken against this petitioner.
Mr. Shrey Mishra, learned counsel for the respondent-State submitted that the petitioner was illegally appointed without proper procedure of appointment in the year 1985 on the post of Assistant Teacher in Rajkiya Kannya Madhya Vidyalaya, Sahibganj by the then Inspector of School-cum-Deputy Director of Education.
He further submitted that there was no advertisement published by the department. Neither any competent appointment committee has recommended the petitioner for appointment nor was any interview held for the same.
As a matter of fact, the issue with regard to illegal appointments was further investigated by the C.B.I and the then District Education Officer enquired the matter of appointed teacher of Rajkiya Kannya Madhya Vidyalaya and found irregularity and illegality in the appointment.
Further on perusal of the show-cause reply of the writ petitioner, the District Education Officer, Sahibganj found that the petitioner has been illegally appointed without following the departmental procedure of appointment and has also been sanctioned first time bound promotion.
Mr. Mishra further submitted that in her B.Ed
certificate; no name of college was mentioned, meaning thereby to say it was not known from which college the petitioner has completed B.Ed degree and due to all these facts, charge-sheet was issued and the departmental proceeding was conducted and when the second show-cause notice was issued to the petitioner before imposing the order of punishment; this petitioner challenged the second show cause notice along with the enquiry report etc. which was since stayed by this Court, no final order can be passed.
He lastly submitted that other similarly situated teachers who were also illegally appointed have been terminated and the petitioner could not take benefit of stay order by this Court and the instant writ application deserves to be dismissed as the initial appointment itself is illegal without following proper procedure of appointment.
Courts Observation and Judgment
The bench observed, "Having heard learned counsel for the parties and after going through the averments made in the respective affidavits, it appears that the appointment of this petitioner was illegal, inasmuch as, no proper procedure for appointment was followed. No advertisement was published and the petitioner was appointed by the then School Inspector-cum- Deputy Director of Education. From the counter affidavit it further appears that the B.Ed certificate which was submitted by this petitioner, the name of the college has not been mentioned. It further transpires that there was also a C.B.I enquiry in the light of mass illegal appointments. All these facts which have been mentioned in the counter affidavit have not been rebutted by the petitioner by way of any rejoinder.
At this stage it is pertinent to mention here that the only argument advanced by the learned senior counsel for the petitioner is that since a development took place and the petitioner has already retired on 31.01.2018; the department is prevented from taking any further action."
While Relying upon The Apex Court judgment Mahanadi Coalfields Limited Vs. Rabindranath Choubey, wherein it was held that “the disciplinary authority has the powers to impose a penalty of dismissal upon the delinquent even after his attaining the age of superannuation, 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.”
While dismissing the petition the court noted, “the departmental proceeding against this petitioner was pending due to the order of stay passed by this Court and it is not a case that any fresh departmental proceeding is to be initiated against this petitioner after her retirement; as such, the department shall proceed in the pending departmental proceeding under law.”
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