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2006 DIGILAW 866 (JHR)

Lolen Kujur v. State of Jharkhand

2006-07-14

PERMOD KOHLI

body2006
JUDGMENT Permod Kohli, J.-Late Sukra Kujur, the husband of the petitioner was appointed as Assistant Teacher in the Lutheran High School, Gumla on 24th of February, 1962. It is alleged that he acted as Incharge Headmaster of the said School. In the year 1986, a regular Headmaster was appointed and some dispute arose regarding the Management of the School. This dispute finally landed in the High Court in Second Appeal No. 132 of 1986(R). The appeal was dismissed as infructuous but with certain observations. These are, however, not relevant for disposal of the controversies raised, in this present writ application. It is also alleged by the petitioner that due to certain internal politics, husband of the petitioner was stopped from putting his signature on the Attendance Register and then he decided to maintain the Separate Attendance Register. The husband of the petitioner died on 23rd of January, 1999. During his life, he withdrew provident fund amounting to Rs. 5,300/- from his account vide Memo Nos. 2324-26, dated 4th of October, 1991 and another amount of Rs. 2,000/- vide Memo Nos. 3125-26, dated 12th of December, 1991. It is also mentioned that the deceased-employee wrote a letter dated 10th of September, 1992 to the Managing Committee informing them of maintenance of a separate- attendance Register due to internal, conflict. He also claimed salary, which was unpaid from 1987 by a letter No. 5043, dated 4th of September, 1993 by writing to the Headmaster and the Secretary of the School. After the death of the Sukra Kujur, his pension was fixed taking into account 24 years of service said to be rendered by him. Petitioner has approached this Court seeking a direction for payment of pension for 37 years of service and also other benefits. It is stated that respondent No.3 vide his Memo No. 1660/Gumla. dated 22nd of October, 2001, ordered for payment of the provident fund amount of late Sukra Kujur. Respondent No.3 wrote to the Secretary and the Headmaster of the School vide his Memo No. 289/Gumla, dated 26th of February, 2003 for pay fixation. The Management of the School has filed the counter-affidavit challenging the maintainability of the writ application on the ground that the same is hit by the principles of res judicata. Respondent No.3 wrote to the Secretary and the Headmaster of the School vide his Memo No. 289/Gumla, dated 26th of February, 2003 for pay fixation. The Management of the School has filed the counter-affidavit challenging the maintainability of the writ application on the ground that the same is hit by the principles of res judicata. It is stated that petitioner has concealed the facts from this Court inasmuch as, earlier writ petitions filed by her late husband, have not been disclosed. It is stated that the late husband of the petitioner filed a writ petition being CWJC No. 540, of 1986(R) claiming himself as the Headmaster of the School. This writ petition was dismissed vide order dated 16th of April, 1987. It is further stated that the deceased-husband of the petitioner remained absent from school from 27th of October, 1986 and thereafter never bothered to answer the notices of the Management. It is on account of long absence of eight years, the Sub-Divisional Education Officer vide his Inspection Report dated 12th of July, 1997 asked the Headmaster to take appropriate steps. Thereafter a show cause notice was issued to the husband of the petitioner vide letter No. 72 of 1994 dated 15th of July, 1994 but he refused to accept the said notice and has filed no reply. In view of the extraordinary arid continuous absence of eight years the decision to discharge the husband of the petitioner was taken on 16th of November, 1994. This decision was communicated to all concerned including the competent authorities and the husband of the petitioner. The husband of the petitioner filed another writ petition before this Court being CWJC No. 998 of 1994(R) for relief for declaring the seniority and salary since 27th of October, 1986. He also asked for implementation of the recommendations of 4th Pay Revision Commission. This writ application was dismissed on 24th of August, 1994. It is, accordingly, stated that in view of dismissal of earlier writ petition, petitioner is not entitled to any relief. 2. Heard the learned counsel appearing for the parties. 3. Mr. Jai Prakash, learned counsel appearing for the petitioner has strenuously argued that the issue involved in earlier writ petitions were totally different and the doctrine of res judicata has no application to the facts of the present case. 2. Heard the learned counsel appearing for the parties. 3. Mr. Jai Prakash, learned counsel appearing for the petitioner has strenuously argued that the issue involved in earlier writ petitions were totally different and the doctrine of res judicata has no application to the facts of the present case. It has also been vehemently stated that at no stage, husband of the petitioner was dismissed from service. 4. Respondents have placed on record the copies of the orders passed in CWJC No. 540 of 1986(R) and CWJC No. 998 of 1994(R). As far the order dated 16th of April, 1987, passed in CWJC No. 540 of 1986(R) is concerned, the High Court observed as under:- "The dispute in this writ petition is with regard to the fact as to who is the Secretary of the Managing Committee of the School. According to the petitioners the Secretary of the Managing Committee constituted on 8.8.1985 is petitioner No. 1 whereas according to the respondents, the Secretary is respondent No.4 since 2.9.1975." After recording the above observations, the writ petition was dismissed with following further observations:- "It is made clear that this judgment should not be interpreted to mean that this Court has held that respondent No. 4 is still the Secretary of the Managing Committee of the School because this matter is to be decided by the State Government, if representation is filed by the petitioners." Second writ petition i.e., CWJC No. 998 of 1994(R) was dismissed by order dated 25th August, 1986, whereunder following observations were made: "In view of the fact that the point in controversy has already been settled by this Court earlier in CWJC No. 540 of 1986 (R) decided on 16.4.1987 dismissing the aforesaid writ application in which the petitioner was one of the parties, this application is barred by res judicata." 5. From the above judgments, it is apparent that the dispute involved in the earlier two writ petitions was totally different and has nothing to do with the claim made in the present writ petition. Neither the doctrine of res judicata has any application nor petitioner's right to claim retiral benefits can in any manner be affected. In any case the deceased filed those two writ petitions, when he was still in service and, therefore, there is no question of claiming pensionary benefits for the entire period. Neither the doctrine of res judicata has any application nor petitioner's right to claim retiral benefits can in any manner be affected. In any case the deceased filed those two writ petitions, when he was still in service and, therefore, there is no question of claiming pensionary benefits for the entire period. The plea of the respondents that the deceased-husband of the petitioner had claimed salary benefits is not bourne out either from the judgment nor any material has been placed on record to establish this contention. I do not feel that present writ petition is barred by the doctrine of res judicata. As far the question of dismissal of late husband of the petitioner is concerned, respondents have relied upon inspection report dated 12th of July, 1987, show-cause notice dated 15th of July, 1994 and the decision dated 16th of August, 1994. 6. In the Inspection note dated 12th of July, 1987 (Annexure R4-B), it is stated that Sukra Kujur is absent from school for about eight years. According to Rules, his service should have ended, the Management Committee is advised to initiate appropriate action "in the interest of the school". Vide notice dated 15th of July, 1994, deceased-husband of the 'petitioner was asked to present himself on 31st of July, 1994 to explain, otherwise action will be taken against him under Section 236, Chapter 98 of the Bihar Service Code for termination of service. The decision dated 16th August, 1994 relied upon by the respondents make an interesting reading. It is recorded that unanimous decision has been taken to terminate the services of Shri Kujur under Section 236 Chapter 98 of the Bihar Service Code in accordance with the order of Sub-Divisional Education Officer, Gumla, i.e. Order Nos. 356-58 dated 12th of July, 1984. It further says that the Secretary is asked to complete departrnental proceedings at the earliest. In this regard, it is this last order, which is said to be the termination order of the petitioner. Perusal of the order reveals that a decision was taken unanimously by the Committee to terminate the services of Shri Kujur and the Secretary has been asked to initiate departmental proceedings. In this regard, it is this last order, which is said to be the termination order of the petitioner. Perusal of the order reveals that a decision was taken unanimously by the Committee to terminate the services of Shri Kujur and the Secretary has been asked to initiate departmental proceedings. No material has been placed on record to show that the services of the husband of the petitioner was terminated by initiating any departmental proceedings, i.e., by holding any enquiry, serving a charge-sheet or adopting any other valid mode prescribed under the Rules. 7. It is a settled law that absence from service is a misconduct. Under the service jurisprudence, an employee is entitled to be put to notice or an enquiry be held. In the present case, admittedly, no enquiry was conducted and it is not the case of the respondents that any disciplinary action was initiated against the employee. As far the show-cause notice is concerned, though a copy of the same is placed on record, however, it has not been established that this notice was ever served upon the employee. This is particularly in the light of the allegations made in the writ petition that the employee continued to serve the school during the period of alleged absence. Petitioner has made certain specific averments in Para 11 that he prepared a separate attendance register by duly informing, the Education Department. Reply to this para is contained in Paragraph 22 of the counter-affidavit, wherein, it is stated that the official respondents have no knowledge. Respondents have also not disputed the withdrawals made by the deceased-employee from the provident fund during the period of alleged absence as mentioned in Paras 12 and 13. Similarly in Para 17 of the writ petition, it is again mentioned that the deceased-employee regularly attended the school and performed the job. Reply to Para 17 is contained in Paragraph 25 of the counter, wherein, it is stated that the sale is matter of record. Specific allegations of attendance of the school and in absence of any termination order, the allegations of the petitioner that he continued to serve the school cannot be ignored. Apart from above, if the contention of the respondents is accepted that services of the deceased-employee were terminated in 1994 for misconduct, then he is not entitled to any pension. Specific allegations of attendance of the school and in absence of any termination order, the allegations of the petitioner that he continued to serve the school cannot be ignored. Apart from above, if the contention of the respondents is accepted that services of the deceased-employee were terminated in 1994 for misconduct, then he is not entitled to any pension. Fact remains that pension has been paid to the petitioner for 24 years of rendered service. In the order dated 16th of August, 1994 said to be decision to terminate, nothing has been stated about the period, between 27th of October; 1986 till the date of decision. This period has not been treated as dies non or not to be counted for service, therefore, by no yardstick, deceased can be denied the pensionary benefits for the entire service rendered by him, this writ petition is, accordingly, allowed. Respondents are directed to re-fix the pension of the deceased-husband of the petitioner and consequently the family pension by treating the service rendered by the deceased-employee up to 37 years. Let all the calculations be made within a period of three months and consequential payments made to the petitioner within one month thereafter.