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2002 DIGILAW 505 (JHR)

Kumod Kumar Jha v. State Of Jharkhand

2002-04-19

TAPEN SEN

body2002
ORDER Tapan Sen, J. 1. In this Writ Application the petitioner has made a prayer for quashing the Order as contained at Annexure-1 being an Order dated 17.8.1999 passed by the District Superintendent of Education, Deoghar (respondent No. 3) whereby and whereunder his salary was stopped on the ground that he was not maintaining his mother. According to the petitioner, the aforesaid impugned order has been passed purportedly as per order dated 21.11.1994 passed in Title Suit No. 82 of 1994 although according to that petitioner, the said Title Suit stood dismissed on 27.8.1995 for non-prosecution thereof. The petitioner has further prayed that a direction be issued commanding upon the respondents to immediately and forthwith release his withheld salary with effect from 17.8.1999. 2. According to the petitioner, he was appointed on compassionate considerations as an Assistant Teacher whereafter he is working and presently posted as Head Master in the Primary School, Jagmandih, Sarwan in the District of Deoghar. The petitioner has stated that his father, late Shambhu Nath Jha died on 31.7.1979 whereafter the petitioner was duly appointed after following all formalities. The appointment was made by the District Establishment Committee in the year 1991. 3. The petitioner has stated that his father died leaving behind his widow, five sons and a daughter. The daughter has been married into a well to do family and all the brothers are doing well in life. The petitioners appointment came only after he had filed a writ petition at Patna. After his appointment, the petitioner has been doing his work satisfactorily. 4. However in the year 1994 a dispute arose in the family when the petitioner declined to provide support to his brothers who were all self employed and engaged in different professions. Consequently these brothers caused a complaint to be filed by the mother of the petitioner making an allegation that he was not supporting her. Based on that complaint, the District Superintendent of Education, Deoghar stopped payment of salary to the petitioner by Annexure-1 to the writ application. 5. Consequently these brothers caused a complaint to be filed by the mother of the petitioner making an allegation that he was not supporting her. Based on that complaint, the District Superintendent of Education, Deoghar stopped payment of salary to the petitioner by Annexure-1 to the writ application. 5. The petitioner has stated that while passing the aforementioned order, reference has been made to an order dated 21.11.1994 passed in Title Suit No. 82/94 whereas according to the petitioner, although such an order had been passed in the aforementioned Title Suit but the said Title Suit stood dismissed on 27.8.1995 and based upon that, the salary had been resumed w.e.f. August, 1995. Therefore, the order of the respondent No. 3 passed on 17.3.1999 relying on the said order passed on 21.11.1994 in Title Suit which had already been dismissed subsequently, amounts to passing an order without necessary verification and it therefore, suffers from non-application of mind. The fact that the aforementioned suit was dismissed on 27.8.1995 has also been admitted by the Block Extension Officer who has filed counter affidavit on behalf of the respondent No. 3 6. The aforementioned counter affidavit on behalf of respondent No. 3 has also stated various facts including the fact that earlier on 24.6.1994, the mother of the complainant had filed a Complaint before the Deputy Commissioner, Deoghar and on that basis, the respondent No. 3 had issued Notice to show cause but the petitioner did not do so as a result whereof on 23.7.1994 the said respondent No. 3 had passed a order withholding the salary of the petitioner. It was against the aforementioned order that the petitioner had preferred Title Suit No. 82/94 which had earlier passed the order on 21.11.1994 based on an undertaking given by the petitioner on 17.11.1994, a copy whereof has been marked as Annexure-B to the said counter affidavit. It was pursuant to such undertaking being given, that the interim order was passed on 21.11.1994 when it was ordered that the salary will be released till disposal of the suit on the condition that the petitioner would maintain his mother and in future if the petitioner failed to maintain his mother then the authorities concerned would be at liberty to proceed against the petitioner and withhold his salary. 7. 7. The mother of the petitioner has also filed a counter affidavit and while narrating various other and further acts of his. including the tiling of a Complaint, through his wife vide P.C.R. Case 581/2000 before the learned C.J.M.. Deoghar under Section 498-A/40G/323 IPC. has stated that the petitioner had also filed one Title Suit No. 93/2000 against the same impugned order dated 17.8.1999 along with an injunction application which was rejected by order dated 9.2.2001 vide Annexure-L appended to the counter affidavit of the respondent No. 3. Being aggrieved, the petitioner filed Civil Misc Appeal No. 4/2001 before the learned District Judge, Deoghar which was. however, withdrawn by him on 16.7.2001 vide Annexure-N. 8. The mother of the petitioner (respondent No. 5) has further stated that the petitioner has already exhausted all remedies and he can not therefore be allowed to pursue the same remedies once again through this Writ Petition. 9. The petitioner however has stated at paragraph 19 of the writ application that having been frustrated in his attempts to get his salary, filed the aforementioned Title Suit No. 93/2000 which was subsequently withdrawn on 31.7.2001 vide Annexure-4 appended to the writ application. 10. The mother of the petitioner (respondent No. 5) as also respondent No. 3 have stated that even the letter of appointment marked as Annexure-A was given with a condition that he would maintain the family of the deceased employee and any violation of this condition would be construed to be a gross dereliction of duty and it would make him liable to departmental proceedings. 11. The mother of the petitioner has repeatedly stated that the petitioner has been violating this condition and has not been maintaining her and has even gone to the extent of creating a fabricated Deed of Family Settlement and he also got a complaint filed through his wife under Section 498-A etc., as stated above. 12. From a perusal of the narration of facts it is apparent that the petitioners salary has been withheld as he appears to have violated the elementary condition contained in the letter of appointment to the effect that he would maintain the family of the deceased employee, which undoubtedly includes the respondent No. 5. 13. 12. From a perusal of the narration of facts it is apparent that the petitioners salary has been withheld as he appears to have violated the elementary condition contained in the letter of appointment to the effect that he would maintain the family of the deceased employee, which undoubtedly includes the respondent No. 5. 13. As per terms and conditions of the letter of appointment itself, if he does so, it would amount to gross dereliction of duty making him liable to be proceeded against departmentally but that does not mean that his salary could be stopped notwithstanding the fact that he has been continuously working. 14. In that view of the matter, the respondent authorities are at liberty to proceed departmentally against the petitioner in accordance with law but his salary can not be withheld. Consequently the impugned order is set aside. 15. However, the interest of the mother of the petitioner (respondent No. 5) must also be protected. It is therefore directed that whatever amount the petitioner may be found entitled to one third of that amount shall be transmitted by the respondent No. 3 to the Saving Bank Account of respondent No. 5, which she will open in any Nationalised Bank pursuant to this order giving intimation and details thereof to the concerned respondent. Such action should be in relation to the future salary of the petitioner each month as well. 16. With the aforementioned observations and directions, this writ petition is allowed. There shall, however, be no order at to costs.