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2007 DIGILAW 774 (JHR)

Raghab Kumar v. State Of Jharkhand

2007-09-27

AMARESHWAR SAHAY, M.KARPAGAVINAYAGAM

body2007
ORDER 1. Heard the parties. 2. Considering the statements made in the petition and the grounds taken therein, we are satisfied that sufficient grounds have been made out for condoning the delay in filing the letters patent appeal. 3. According this interlocutory application is allowed and the delay in filing the appeal is hereby condoned. 4. I.A. No. 2685/2007 stands disposed of. L.P.A. No. 308 of 2007 5. With the consent of the parties the appeal was taken up and after hearing the parties the same is being disposed of at this stage itself. 6. The writ petitioner, a peon, had filed W.P.S. No. 5356/2002 wherein he prayed for direction to the respondents to pay his arrears of salary, which according to him was illegally withheld from March 1992. The petitioner alleges that similarly situated other persons appointed by the same authority in the same manner, are continuing in service and are being paid their salary pursuant to the order passed by this Court in several cases, filed by the other similarly situated persons. 7. The learned single Judge, by impugned order dated 2.7.2007 dismissed the writ application noticing the following facts: (i) Though the claim of the writ petitioner was for payment of salary from March 1992 but he filed the writ application in September 2002, i.e. after more than ten years without any explanation for the inordinate delay. (ii) From the counter-affidavit, filed on behalf of the respondent State it appeared that the petitioner was appointed on the basis of fake sanction letter and without following the due process of appointment. (iii) The writ petitioner himself left the service from September/October 1991 without any leave and he continuously absented from service for more than five years and according to Rule 76 of Bihar Service Code, if an employee continuously absents himself from service for a period of five years, he ceases to be in the employment. (iv) The petitioner could not show that his appointment was on the basis of the genuine documents and he was appointed after following the due process of appointment. The decision of the Supreme Court in this regard in the case of ecretary, State of Karnataka v. Uma Devi , was taken note of. 8. Mr. (iv) The petitioner could not show that his appointment was on the basis of the genuine documents and he was appointed after following the due process of appointment. The decision of the Supreme Court in this regard in the case of ecretary, State of Karnataka v. Uma Devi , was taken note of. 8. Mr. Ajit Kumar, learned Counsel appearing for the appellant submitted that subsequent to the filing of this writ petition vide order dated 3.5.2003, the appellant was terminated from service, but the said order date 3.5.2003 terminating the services of the appellant is illegal because the appellant was not afforded any reasonable opportunity to show-cause prior to passing such order of termination. He further submitted that the show-cause notice was issued to him on 19.4.2003 to file show cause within 15 days but before expiry of the said period of 15 days, the order for termination was passed on 3.5.2003, i.e. 14th day itself. He further submitted that similarly situated other persons were retained in service and are being paid salary but the appellant has not been paid his salary since March 1992. 9. It is relevant to notice the fact that respondents along with their counter-affidavit in the writ petition annexed the order dated 19.4.2003 issuing show-cause notice to the petitioner-appellant and also the order dated 3.5.2003 terminating the services of the appellant but the writ petitioner-appellant did not chose to challenge the said notice to show-cause or order of termination contained in Annexures-A & B to counter-affidavit even by amending his writ application. Therefore, in this letters patent appeal, the appellant cannot be allowed to contend that without any notice to show-cause the order of termination was passed on 3.5.2003. Moreover, the appellant has not advanced any explanation for the inordinate delay of more than 10 years for filing the writ application. Apparently, the appellant is guilty of gross latches and negligence on his part. 10. Considering the above facts as well as the fact that the appellant was appointed on the basis of the fake sanction letter without following the due process of appointment, in our view, the learned single Judge rightly did not interfere in the writ jurisdiction. The impugned order Is perfectly legal and valid. 11. Accordingly, having found no merit, this letters patent appeal is dismissed.