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2010 DIGILAW 1417 (PAT)

Chinta Devi v. State Of Bihar

2010-07-01

AJAY KUMAR TRIPATHI

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JUDGEMENT AJAY KUMAR TRIPATHI, J. 1. I.A. No. 4005 of 2010 has been filed in the writ application to substitute the petitioner by his legal heirs in view of the fact that the petitioner died on 7.2.2010 during the pendency of the writ application. The names of the legal heirs - have been indicated as Chinta Devi- wife and two sons, namely, Navin Kumar and Pravin Kumar. 2. I.A. is allowed and the legal heirs are ordered to be substituted in place of the present petitioner. 3. Order dated 1.6.1995 annexure-16 to the writ application has been challenged by the erstwhile petitioner because the said order has the effect making certain recovery from the salary or otherwise of the employee. 4. The facts leading to such an order are briefly recorded. Ramdeo Singh, the erstwhile petitioner was initially appointed in the Irrigation Department some time in the year 1973 in the district of Aurangabad. That appointment however became controversial as questions of legality of such an appointment came to be raised within the department. Initially order of suspension was passed and even thereafter termination. Petitioner came before the High Court in a writ application, the order of which is on record as annexure-12. The Court intervened in the order of termination by quashing it with a direction that the case of the petitioner would also be considered by the so called selection committee. Since there was delay in decision making, contempt, namely, MJC No. 688 of 1985 was filed by the petitioner. From the tenor of the order recorded therein it is evident that there was a direction to the respondent to pay salary to the petitioner from the date of termination which was 4.1.1985 till the date of passing of the order by the selection committee. Petitioner got salary for that period. But the issue remained for payment of salary to the petitioner for the period 11.10.1985 to 13.12.1987. 5. It is not disputed that the selection committee recommended for fresh appointment of the petitioner on the substantive post. The recommendation is dated 4.12.1987. The order of appointment thereafter came to be issued on 10.12.1987 and the petitioner joined the service on 14.12.1987. 6. After the petitioner rejoined it seems that he made an application before the Deputy Collector, Revenue, Aurangabad for payment of salary for the earlier period when he was removed from service. The recommendation is dated 4.12.1987. The order of appointment thereafter came to be issued on 10.12.1987 and the petitioner joined the service on 14.12.1987. 6. After the petitioner rejoined it seems that he made an application before the Deputy Collector, Revenue, Aurangabad for payment of salary for the earlier period when he was removed from service. Since some part of the payment had already been made to the petitioner because of the order of the High Court passed in contempt application vide annexure-13.The petitioner therefore confined his claim for the period 11.10.1985 to 13.12.1987. It seems that his request was accepted and the office order dated 1.4.1989 came to be issued as would be evident from anneure-15 to the writ application. But payment of salary to the petitioner did not settle the matter, in fact, it raised yet another dispute. Some one in the department realized or was of the opinion that illegal payment has come to be made to the petitioner without any proper approval or sanction by the competent authority. 7. For making payment to the petitioner and yet another employee one Sri B.B. Sahay, the Deputy Collector was departmentally proceeded against. Enquiry Officer found him guilty of making illegal payment and causing loss to the State exchequer which led to imposition of punishment upon Sri B. B. Sahay. The punishment is that 50% of the loss of money would be recovered from Mr. Sahay and other 50% from the two respective employees, one them being the erstwhile petitioner who is no more. The order of punishment is annexure-16 that that is the subject matter of controversy or challenge in the present writ application. 8. Learned counsel for the petitioner has made a valiant effort to get over the impugned order contained in annexure-16 by trying to show that there was a kind of continuity in service right from the year 1973. His termination order was quashed by the High Court and since the Selection Committee did make recommendation for appointment he rejoined and continued on the post. It is the general principle of law that if a termination order is held to be bad then the employee is entitled to go back to the post without any break in service. He does not suffer at the hands of the respondents if the order is held to be otherwise bad or illegal. 9. It is the general principle of law that if a termination order is held to be bad then the employee is entitled to go back to the post without any break in service. He does not suffer at the hands of the respondents if the order is held to be otherwise bad or illegal. 9. There is no quarrel with the proposition. The problem is in the given set of facts. I wish that the facts of the case were not otherwise. The Court would have had no problem with the principle urged but some facts stares the Court in the face as well as the petitioner. It is a document brought on record by the petitioner as annexure-11/B. This is said to be seniority list of the employees known as Tahashildar working in the department. The name of the petitioner figures in the said document at serial no. 151.The entry at serial no. 151 is significant and vital to the adjudication of the case since no other conflicting document is available on record. Though initial appointment of the petitioner has been shown to be year 1973 but it is only against the entry of the petitioner that another date namely 14.12.1987 has also been entered. Next to his place of posting there is a significant word which is "PUNERNIYUKTI" (re-appointment). 10. There is no evidence to accept the submission of learned counsel for the petitioner that intervention of the Court at the stage of termination automatically lead to reinstatement of the petitioner. The case of the petitioner for appointment was considered by the Section Committee afresh and only after their decision the petitioner was reappointed and therefore in the seniority list there is remark "PUNERNIYUKTI". 11. Since the petitioner came to be reappointed from 14.12.1987 obviously he had no claim for payment of salary for the period prior to the same, specially 11.10.1985 to 13.12.1987. This was why the Deputy Collector had to suffer by virtue of the order contained in annexure-16. 12. In the broad matrix of the fact and the proposition of law the Court has no option but to certify that the decision of the respondents contained in annexue-16 does not suffer from any kind of vice and therefore requires no interference. 13. This writ application has no merit and it is dismissed but without any costs.