Research › Search › Judgment

Jharkhand High Court · body

2002 DIGILAW 295 (JHR)

Achhe Lal Ram v. State Of Jharkhand

2002-03-06

TAPEN SEN

body2002
ORDER Tapan Sen, J. 1. Heard learned Counsel for the petitioner and Mr. A. Allam, learned Counsel appearing on behalf of the Respondent No. 2, and also Mr. P. Modi, learned G.P.-1 for the State of Jharkhand and with their consent, this Writ Petition is being disposed off at this stage itself. 2. Learned Counsel for the Petitioner, at the very outset, prayed permission to make corrections of some typographical errors which have inadvertently crept in at page-3 of the Writ Petition. Permission is granted to him. Let him do so. 3. In this Writ Petition, the petitioner has made a prayer for issuance of an appropriate writ/order including a Writ of Certiorari for quashing the Notification No. 6096(S) dated 06.09.2001 issued by the State of Bihar (Respondent No. 2) whereby and whereunder he has been inflicted with punishments as recorded in Annexure-5. The punishments which have been recorded are : 1. Stoppage of two increments without cumulative effect. 2. Except suspension allowance, he would not be entitled to any other payments; and 3. On revocation of suspension, the Petitioner shall join in the Head Quarter at Ranchi in the Road Construction Department. 4. The Petitioner has also made a prayer for issuance of an appropriate writ or a writ of in the nature of a Writ of Mandamus commanding upon the Respondents to pay him the entire salary/allowance/benefits for the period w.e.f. 22.07.2000 till Date, after deducting/adjusting amounts already paid to him. 5. The culmination of the order of punishment appears to have been initiated on the basis of Notification of suspension served on the Petitioner while he was working in the office of the Executive Engineer. Road Construction Department. Patna. According to the order of suspension, while the Petitioner was functioning as an Executive Engineer. NREP. Ranchi, he had been entrusted with the Construction of a Guard Wall in the Namkom (Ranchi) Division, relating to Project No. 15/98-99 for the Sidrol Tank. He had also been entrusted with the work of Project No. 1/98-99 relating to construction of two additional rooms of the Primary School at Rampur and also Project No, 5/98-99 for construction of two rooms for the Primary School at Jam-chua. He had also been entrusted with the work of Project No. 1/98-99 relating to construction of two additional rooms of the Primary School at Rampur and also Project No, 5/98-99 for construction of two rooms for the Primary School at Jam-chua. According to the said notification dated 22.07.2000 putting the Petitioner under Suspension, a number of irregularities had been detected, as a result whereof, he was put under suspension under the provisions of Rule 49-A of Civil Services (Classification, Control and Appeal) Rules, 1930. 6. The learned Counsel for the Petitioner states that pursuant to the aforesaid order, putting him under suspension, his Head Quarter was fixed in the office of Chief Engineer, Chotanagpur and Santhalpargana. Road Construction Department at Ranchi, whereafter, by a resolution dated 15.12.2000 the State of Bihar initiated departmental proceedings and also issued charge-sheet against the Petitioner. The Petitioner states that by letter dated 08.01.2001 he submitted a detailed explanation before conducting officer denying all the charges levelled against him and an inquiry report was also submitted by the conducting officer by Annexure-4, by which on 17.02.2001 (relevant portions at pages 33. 35. 38.41 and 42 of the Writ Petition), the Petitioners guilt could not be established. 7. The grievance of the Petitioner is that although the Inquiry Officer did not find any of the charges proved against the petitioner while he was functioning as Executive Engineer. NREP, Ranchi, yet the State of Bihar issued a Notification dated 06.09.2001 being Notification No. 6096(S) as contained at An- ncxure-5, inflicting the punishments referred to above. 8. According to the learned Counsel for the Petitioner this case is fully covered by the Judgment delivered in the case of Arvind Vijay Billing & Anr. v. State of Bihar, reported in 2001 (3) JCR 155 (Jhr) : 2001 (2) JLJR 227 . 9. Learned Counsel for the Petitioner has also stated that the aforementioned Judgment has now also been tested by an Honble Division Bench of this Court in L.P.A. No. 658 of 2001 [reported in 2002 (1) JCR 401 (Jhr)] which was preferred by the State of Bihar against the said Judgment. 9. Learned Counsel for the Petitioner has also stated that the aforementioned Judgment has now also been tested by an Honble Division Bench of this Court in L.P.A. No. 658 of 2001 [reported in 2002 (1) JCR 401 (Jhr)] which was preferred by the State of Bihar against the said Judgment. Both the Judgments have held, infer alto, while interpreting the provisions of Section 72 read with Section 74 that every person who immediately before the appointed day had been serving in connection with the affairs of the existing State of Bihar would, on and from that day provisionally continue to serve in connection with the affairs of the State of Bihar unless he is required by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Jharkhand. 10. Subsequently, their Lordships have held at paragraphs 9 to 12 as follows [See 2002 (1) JCR 401 (Jhr) at page 405. 406] : "Whatever may be the view point, whatever may be differing perceptions or opinions, the fact remains that it is Section 74 of the Act which has an overriding effect because Section 74 is the only legal provision which can be given meaningful interpretation, compatible with the clear legislative intent because it is this provision which has a direct nexus with the object sought to be achieved, the object clearly being the formations of the new State of Jharkhand and the control over its civil services by the Government of Jharkhand State or the subordinate competent authorities under the Jharkhand State Government. It will not be out of place at this stage to mention that Sections 72 and 74 of the Act are in pari materia to Section 82 and 83 of the Punjab Reorganisation Act. 1966. Section 74 is also in pari materia to Section 116 of the States Re-organisation Act, 1956, but Section 72 of the Act is materially and substantially different to Section 115 of the aforesaid 1956 Act because 1956 Act in Section 115 clearly stipulates and laws down that on and from the appointed day such Government servant who has been serving in the place which from the territory of the successor State should be deemed to have been allotted to and be, therefore, allowed to serve in connection with the affairs of the successor State to the existing State. Once, therefore, it is held that on and from the appointed day, the successor State to the existing State would be the appointing authority in respect of a Government servant and that the competent authority on and from that day, shall have all power to pass any order in any respect against such person (including the order affecting his continuance in such post or office) permitting the existing State of Bihar, to either initiate disciplinary proceedings or issue suspension order against such person would be in violation of the express mandate contained in Section 74 of the Act and the proviso thereto. On and from the appointed day, the "existing State of Bihar" as defined in Section 2(e) ceased to exist. On and from the appointed day, the successor States to the existing state of Bihar came into being. These successor States were the State of Bihar and the State of Jharkhand. By a reading of Section 74, therefore, what emerges is that the appointing authority in respect of a Government servant would be one of the two successor States, the state of Bihar or the State of Jharkhand and to determine as to which one of these two successor States is the appointing authority, the test is very, very simple. If the employee, as on the appointed day is serving in and posted at a territory forming part of the successor State of Bihar, the State of Bihar would be the appointing authority. If the employee is posted in and serving at a territory forming part of the State of Jharkhand, the State of Jharkhand would be the appointing authority. It is only the competent authority in the successor State which has the power and jurisdiction to initiate action and pass orders. This is irrespective of the accrual of.cause of action at any point of time before the appointed day or the place where such cause of action occurred. It is only the competent authority in the successor State which has the power and jurisdiction to initiate action and pass orders. This is irrespective of the accrual of.cause of action at any point of time before the appointed day or the place where such cause of action occurred. To elucidate, we may say that if as on the appointed day, a person was serving in and posted at a place which formed part of the territory of the State of Jharkhand and if with respect to such a person cause of action had occurred, say in the year 1998 or 1999, in a place which, as on the appointed day, formed part of the State of Bihar, the State of Jharkhand along shall be the competent authority and only such competent authority can pass order with respect to such a person. The State of Bihar with respect to such a person would have no Jurisdiction to initiate action or pass an order. In such a situation and in such a back-ground, where the State is carved out of an existing State, the cooperation between the two States becomes meaningful. If, therefore, the State of Bihar has, in its possession, any material against a Government servant who, by virtue of Section 74 of the Act, is now in the service of the State of Jharkhand and if the State of Bihar thinks that such material warrants initiation of an action against such a person, it is open to the State of Bihar to forward such material to the State of Jharkhand for such action as it considered appropriate by the State of Jharkhand. Let it be very clearly understood that only role of the erstwhile State in such a situation is merely to pass on the information or the relevant material to the State of Jharkhand and leaving the rest for the State of Jharkhand to do. Similar would be the case for the State of Jharkhand if an employee is in a place in Bihar and if the State of Jharkhand has any material in its possession which may be required to be forwarded to the State of Bihar for appropriate action against such an employee." 11. Similar would be the case for the State of Jharkhand if an employee is in a place in Bihar and if the State of Jharkhand has any material in its possession which may be required to be forwarded to the State of Bihar for appropriate action against such an employee." 11. While concluding their Lordships have held that they had no hesitation in holding that the observation of the learned Single Judge in relation to the interpretation of Section 74 of the Act was correct and that the State of Bihar can only "pass on" any information or relevant materials to the State of Jharkhand lor any action that it may consider appropriate, leaving the rest for the State of Jharkhand to do. 12. In the instant case the order of suspension was no doubt passed on 22.07.2000 while the Petitioner was working as Executive Engineer. Road Construction Department at Patna, for alleged irregularities committed in the Namkom Block at Ranchi. However, the Petitioner has stated that he is presently working as an Executive Engineer in the Road Construction Department at Ranchi and as per the submissions of the learned Counsel for the petitioner the impugned order which has been passed on 06.09.2001 by the Joint Secretary. Road Construction Department. Government of Bihar, after the creation of the State of Jharkhand, has been endorsed to the Secretary. Road Construction Department, Jharkhand. Ranchi for information by Memo No. 6097(s). The Petitioner has also stated at paragraph-5 that he is working in the Road Construction Department. Government of Jharkhand at Ranchi. 13. In that view of the matter, this case being fully covered by the two Judgments referred to above which the learned Counsel appearing for the State of Bihar could not rebut, the present Writ Petition is also allowed and the impugned order relating to the Petitioner is hereby set aside. However, as per the Judgment of the Honble Division Bench [reported in 2002 (1) JCR 401 (Jhr)] it will be open for the State of Bihar if it thinks that there are materials which warrant initiation of an action, it can forward such material to the State of Jharkhand leaving the rest for the successor State i.e. the State of Jharkhand to decide. It will also be open to the State of Jharkhand to pass any order in accordance with the Law. It will also be open to the State of Jharkhand to pass any order in accordance with the Law. The Petitioner must bring this order to the notice of the Secretary of the concerned departments. 14. With the aforementioned observations and directions this Writ Petition is disposed off.