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2004 DIGILAW 1047 (JHR)

Jai Jyoti Kishore v. State Of Jharkhand

2004-10-29

TAPEN SEN

body2004
JUDGMENT Tapen Sen, J. 1. Heard the parties. 2. The petitioner prays for quashing the order dated 10.6.2002 issued by the respondent No. 4 removing the petitioner from service without holding any departmental enquiry. According to the petitioned the respondent No. 4 The Deputy Commissioner, Singhbhum (East), Jamshedpur-cum-Chairman, District Rural Development Agency, Singhbhum (East), Jamshedpur] is not competent to pass an order of dismissal/removal from service and if is only the Board of Management which can do so. 3. The petitioner has stated that he got himself registered in the Employment Exchange, in the District of Singhbhum in the year, 1981, The respondent authorities called for names for employment on daily wages and the names of nine employees from different areas including that, of the petitioner were sponsored: Thereafter, the respondents considered these names including that, of the petitioner and, after following the due process of law, appointed him vide memo dated 30.3.1983 (Annexure-l) on the post of an Assistant on daily wages. This letter was issued by the Managing Director of the District Rural Development Agency, Singbbhum at Jamshedpur. 4. Thereafter, the petitioner continued working and sometime later, the aforementioned Agency resolved to regularize several daily wage earners and accordingly issued Memo No. 447, dated 9.6.1992 (Annexure-2) by which the services of the petitioner was also regularized as an Assistant with effect from 15.5.1992 in the scale of Rs. 1,200-30-1.800. The petitioner has stated that the services of other similarly situated daily wage earners were also regularized subsequently. In the meantime and in the year 1990. the District of Singhbhum was bifurcated and the petitioner was regularized in the District Rural Development Agency, East Singhbhum at Jamshedpur. By order dated 14.12.1996 (Annexure-3), the petitioner was granted promotion to the post of an Accountant in the scale of Rs. 3.400-2,300. All of a sudden, the petitioner states,- that on 27.2.1999 (Annexure-4). the Deputy Commissioner issued an order canceling his appointment on the ground that he had been appointed illegally. According to the petitioner, this order was passed without any opportunity of hearing and without initiating any departmental proceedings. Consequently, the petitioner filed CWJC No. 1004 of 1999 and by order dated 1.2.2001 (Annexure-5), the said writ petition was allowed and the authorities were directed to pass fresh orders considering the enquiry report and after giving opportunity to the petitioner to file show-cause etc. 5. Consequently, the petitioner filed CWJC No. 1004 of 1999 and by order dated 1.2.2001 (Annexure-5), the said writ petition was allowed and the authorities were directed to pass fresh orders considering the enquiry report and after giving opportunity to the petitioner to file show-cause etc. 5. The petitioner states that even thereafter, he was not allowed to join and instead, he was asked to show-cause by a notice dated 28.3.2001 where after, the petitioner filed a Contempt Application which was registered as Contempt (Civil) No. 66 of 2002. But, what happened in the said Contempt Application ultimately has not been stated. 6. However, on 10.6.2002 (Annexure-6) an order was issued by the respondent No. 4 reiterating his earlier order dated 27.2.1999 by which the petitioner had been removed from service. The petitioner was however, allowed the benefit of joining in service with effect from 12.2.2001 to 10.6.2002 i.e. the date of passing of the impugned order. 7. According to the petitioner, the impugned order is again wholly without jurisdiction in as much as it has been passed as an empty formality without holding any regular proceeding and having worked for almost two decade, he could not have removed without being given adequate opportunity of hearing in a departmental proceeding. The petitioner further states that according to the Memorandum of Association of the District Rural Agency, it is only the Board of Management which is competent to remove the petitioner. 8. The learned counsel for the petitioner relies upon Annexure-7 and the rules appended thereto relating to the powers of the Board of Management. According to the learned counsel for the petitioner, as per Annexure-2, the power to suspend, remove or dismiss under clause 15, thereof vests exclusively with the Board of Management and that too, after initiating proceedings. According to the petitioner, the impugned order dated 10.6.2002 has been issued by the Deputy Commissioner without any approval of the Board of Management. 9. Mr. Pradeep Modi, learned GP-1 for the State, submits that the respondent No. 4 has the jurisdiction even under the Memorandum of Association and submits that Entry No. 15 in Annexure-2 appended to the Memorandum of Association gives power to the Chairman under column No. 3, to remove, dismiss or award any punishment to an employee of the agency. 9. Mr. Pradeep Modi, learned GP-1 for the State, submits that the respondent No. 4 has the jurisdiction even under the Memorandum of Association and submits that Entry No. 15 in Annexure-2 appended to the Memorandum of Association gives power to the Chairman under column No. 3, to remove, dismiss or award any punishment to an employee of the agency. He further submits that the Deputy Commissioner is the Chairman of the Board of Management and therefore, he does have the power even under Rule 20 (d) of the rules under the Memorandum of Association because Rule 20 is an enabling procedure authorizing the Board of Management to delegate, under Rule 20 (d), any of its powers, other than making rules, to its Chairman, Vice Chairman, Director of Accounts and other authorities as it may deem fit. He states that the respondent No. 4 has been delegated by the Board of Management to do what has been done in relation to the petitioner. He further submits that the petitioner was never appointed following a proper procedure because his appointment was without any advertisement and roster clearance against any vacant sanctioned post and therefore, his appointment was illegal and void right from the very first day. 10. It is true that under Rule 15 of Annexure-2 appended to the Memorandum of Association, the Chairman does have the power under column-3 thereof to remove, dismiss or award punishment to an employee but, it is clearly also mentioned therein that the exercise of such power can be done only after taking necessary disciplinary proceedings as prescribed for State government employees. This apparently has not been done in the instant case. That apart, it would be relevant, taking note of the observations of the other Honble single Judge who disposed-off the writ petition on 1.2.2001 in CWJC No, 1004 of 1999 (R) and another analogous cases in the following manner, which inter alia, reads as follows :- "...................... It is not denied that the Board of Management of District Rural Development Agency, Jamshedpur, by resolution No. .7, dated 15.5.1992 decided to regularize services of both the petitioners with effect from the said day (15.5.1992) for which necessary appointment letters were directed to be issued to them. Consequently, by orders dated 9.6.1992 (Annexure-10) and 3.7.1993 (Annexure-8). petitioners services were regularized." 11. Consequently, by orders dated 9.6.1992 (Annexure-10) and 3.7.1993 (Annexure-8). petitioners services were regularized." 11. The aforementioned observations are relevant to the effect that there was no denial that it was the Board of Management which had decided to regularize the services of the petitioner and it was again, the Board of Management which had actually regularized the services of the petitioner. In that view of the matter, it was not at all reasonable for the Deputy Commissioner which is a delegatce of the Board of Management, to upset what had been done by the delegator and that too, without initiating any departmental proceedings. Consequently, the submissions of Mr. Fradeep Modi are not at all well founded. For the foregoing reasons, this writ petition therefore must now succeed and it is accordingly allowed to do so. The impugned order dated 10.1.2002, as contained in Annexure-6 is set aside. The writ petition is consequently allowed. There shall however be no order as to costs.