Research › Search › Judgment

Patna High Court · body

2009 DIGILAW 373 (PAT)

Manan Sah v. State Of Bihar

2009-03-04

NAVIN SINHA

body2009
JUDGEMENT 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. The petitioner was appointed on the post of Khalasi on 15.1.1959. He came to be absorbed and regularized on the post of Fitter Grade-2 on 1.5.1964. He then superannuated from service on 30.6.1998. After his superannuation when the issue of fixation of his pension arose, he was sought to be reverted to the post of Khalasi by an order dated 23.5.2002 nearly 34 years after the benefit was granted to him. 3. He came to this Court in C.W.J.C. No. 6298/2000. This Court on 13.12.2001 noticed that such an order to his prejudice at this belated stage could not be passed except after proper opportunity to show cause including an opportunity of hearing. Thereafter, the respondents passed an order dated 23.5.2002 reiterating the justification of the order dated 23.5.2002. 4. It is the specific case of the petitioner in paragraph-20 of the writ application that the order dated 23.5.2002 came to be passed in contravention of the directions of this Court in C.W.J.C. No. 6298/2000 inasmuch, the petitioner was not given any opportunity of hearing and the order was ex parte. 5. This has not been denied in the counter affidavit of the respondents. 6. Learned counsel for the State contended that the petitioner had filed a representation in pursuance of the order of this Court and upon consideration of which the impugned order has been passed. The order of this Court and the principles of natural justice stood complied. Any interference by this Court with the impugned order shall result in the revival of an illegal order. 7. Even if this Court were to ignore the twice repetition of the order of this Court on the earlier occasion of opportunity of hearing to the petitioner and this Court were to accept the argument that the representation of the petitioner was considered, this Court still finds it difficult to accept a substantive compliance of the earlier order of this Court. 8. From a bare perusal of the order dated 23.5.2002 it is apparent that there is no consideration of the representation of the petitioner and the reasons why the grounds urged in the representation were not acceptable. 9. The law stands settled that reasons, in an order, are the heart of the order. 8. From a bare perusal of the order dated 23.5.2002 it is apparent that there is no consideration of the representation of the petitioner and the reasons why the grounds urged in the representation were not acceptable. 9. The law stands settled that reasons, in an order, are the heart of the order. It prevents arbitrariness, ensures fair play and grants satisfaction to the citizen that he has had a fair chance, that his case had been properly considered, that he was unfortunate in law not to get the relief. 10. That admittedly has not been done in the present case. If the respondents have chosen to flout the orders of this Court, it shall be at their own risk. 11. Violation of a Court order inviting proceedings under the contempt jurisdiction is an entirely different issue from the power of this Court to set aside an order passed contrary to the order of the Court making it a nullity. In 1982 B.B.C.J. 425 (Sri Nawal Kishire Prasad Sinha Vs. The State of Bihar & Ors.) the Division Bench was considering the validity and the elections held contrary to the stay order passed by this Court. It was urged that the only option available was to proceed in the contempt jurisdiction. This Court rejecting the argument in the relevant extract at paragraph-8 held as follows: "8. ... But without initiating a proceeding for contempt, this Court can quash any order or proceeding done in disregard of such orders which may also tantamount to contempt. It is very difficult to accept this extreme proposition that the acts done in defiance of the Courts order can only be dealt with under the Contempt of Courts Act where a complete machinery is provided for, and in no other manner. The Act does not put any bar. By accepting this proposition this Court will have to, completely, ignore the illegal acts of the subordinate authorities and, I may hasten to add, this will lead to dangerous results......." 12. The Division Bench held that an order passed in violation of a Court order was non est. 13. The petitioner is stated to have retired and has since been deceased. I.A. No. 6592 has been filed by his legal heirs for substitution, details whereof are mentioned in paragraph-5. The Division Bench held that an order passed in violation of a Court order was non est. 13. The petitioner is stated to have retired and has since been deceased. I.A. No. 6592 has been filed by his legal heirs for substitution, details whereof are mentioned in paragraph-5. Since the order impugned has financial implications for the family of the deceased, after hearing the counsel for the parties, this Court is satisfied that the interlocutory application deserves to be allowed. The legal heirs in paragraph-5 are permitted to be substituted in place of the original petitioner. 14. The legal heirs are now being forced to face the ignominy of a proceeding with regard to the deceased, as if the trauma of the passing away of the deceased were not sufficient for them. It was the deceased who was in service, not the substituted heirs. What happened in the tenure of his service was known to the deceased. This Court has no hesitation in holding that the substituted heirs shall find themselves in a hapless situation. 15. The situation is the creation of the respondents themselves. It is they who opted to flout the order of this Court and permitted a situation to arise where by passing away of the deceased they by their own acts have rendered further action in the matter impossible. 16. Learned counsel for the petitioner has also relied upon an order of this Court in C.W.J.C. No. 7062/96. A Bench of this Court was considering a similar matter with regard to cancellation of promotion granted to supervisor, Grade-2 after 21 years. The challenge was on the ground that once the petitioner had superannuated from service, the respondents were precluded from proceeding with the matter. 17. The contention of the respondents at paragraph-4 of the judgment was that the promotion had been wrongly given which benefit could not be allowed to be retained and, therefore, the impugned orders were passed after giving a show cause notice. The Bench framed the question at paragraph-5 of the judgment and answered the same at paragraph-6 thereof. This Court considers it proper to quote paragraphs-5 and 6 of the judgment in its entirety: "5. The only question, which falls for consideration in this case, is as to whether the order cancelling the promotion of the petitioner after his retirement is sustainable in law or not? Admittedly, the petitioner superannuated on 31.3.1994. This Court considers it proper to quote paragraphs-5 and 6 of the judgment in its entirety: "5. The only question, which falls for consideration in this case, is as to whether the order cancelling the promotion of the petitioner after his retirement is sustainable in law or not? Admittedly, the petitioner superannuated on 31.3.1994. Promotion to the post of Supervisor Grade-2 was granted in the year 1982. No action was taken for such a long time and the said promotion, as it appears, was granted pursuant to the direction issued by the State Government." "6. In that view of the matter, taking of steps for cancellation of the promotion after superannuation of the petitioner is wholly unjustified for the reason that no rule has been brought to my notice that even after superannuation of the employee, the proceeding of the nature can be initiated. Even assuming that the proceeding can be treated as a departmental proceeding for cancellation of promotion and recovery of the loss caused to the State Government, such proceeding can be initiated with regard to an event, which had taken place within four years from the initiation of the proceeding in terms of Rule 43(b) of the Bihar Pension Rules. Admittedly, in this case, the last order granting promotion to the petitioner was passed in the year 1982 and the proceeding was initiated on 25.4.1995 and as such the proceeding itself is not maintainable in law. On merits also, when the promotion was granted in 1982, cancellation of the same after such a long time without any explanation for not taking any action while the petitioner was in service is another ground to quash the impugned orders, as contained in Annexures-16 and 17. If the petitioner would have been in employment, the matter would have been different. But once he has superannuated, I am of the view that no order should have been passed cancelling the promotion and ordering for recovery of the salary paid to him by virtue of the said promotion after superannuation of the petitioner." 18. This Court, therefore, for reasons of the aforesaid discussions, holds that the impugned order dated 23.5.2002 is not sustainable in law and it is accordingly set aside. This Court, therefore, for reasons of the aforesaid discussions, holds that the impugned order dated 23.5.2002 is not sustainable in law and it is accordingly set aside. The writ application stands allowed with all its necessary consequences, monetary or otherwise, to be complied with within four months from the date of receipt/ production of a copy of this order.