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2011 DIGILAW 934 (JHR)

The State of Jharkhand v. Vishwanath Sah

2011-10-10

JAYA ROY, PRAKASH TATIA

body2011
Order ByCourt Heard learned counsel for the parties. 2. The appellant State is aggrieved against the order passed by the learned Single Judge on 12.01.2009 in W.P. (S) No. 33 of 2009. The learned Single Judge allowed the writ petition of the petitioner-respondent No. 1 and set aside the order dated 15th September, 2008 and 19th September, 2008. 3. It will be appropriate to first give the facts in brief. The writ petitioner in the writ petition pleaded that he was appointed on the post of Teacher on the basis of office order No. 413 dated 10th September, 1974, a copy of which has been annexed along with the writ petition as Annexure-1 and thereafter, straightway stated that, vide letter dated 15th September, 2008 the District Superintendent for Education-cum-Sub Divisional Education Officer, Chatra directed the respondent No. 4, Block Education Extension Officer, Simaria, not to take the services of the petitioner as he has resigned from the post of Teacher in 1976. The petitioner has placed on record a copy of said letter dated 15th September, 2008. The petitioner then stated that vide another letter No. 1313 dated 15th September, 2008, the same authority itself further directed the Principal, Middle School, Jabra, Simaria Block to ask the petitioner to deposit the amount of his salary which he has drawn illegally after submitting his resignation in the year 1976 and, thereafter, vide letter No. 90 dated 19th September, 2008, it was conveyed that the petitioner's services have been terminated with effect from th September, 2008. The petitioner's contention is that the petitioner demanded from the respondent State the copy of the alleged resignation which, according to the writ petitioner, he did not submit. The petitioner then submitted that the respondents, without any show cause notice in a most illegal and arbitrary manner and without giving any opportunity of being heard, terminated the services of the petitioner only because of the allegation that long back in the year 1976 i.e., 32 years back, the petitioner submitted his resignation. The petitioner, therefore, had challenged the above orders on the ground that principle of natural justice has been violated. 4. The petitioner, therefore, had challenged the above orders on the ground that principle of natural justice has been violated. 4. It appears from the impugned order that the writ petition of the petitioner has been allowed as, on behalf of the State, consent was given for deciding the writ petition at the admission stage and it appears from the record of the writ petition that no reply was even filed on behalf of the State before the learned Single Judge. Learned Single Judge observed in the impugned order that there is no reference of even the date of the resignation and also proceeded to observe that so called letter of resignation of 1976 has been sought to be used after 32 years by the respondent State, which clearly indicates towards arbitrariness and illegality, which cannot be sustained. In this background, the orders impugned were set aside. Hence the State has preferred this appeal. 5. The State has submitted number of documents along with the L.P.A. and stated that the writ petitioner resigned in the year 1976 and did not perform any duty on the post since 1976. Not only this, but after the petitioner's not joining duty, other employees were posted and were duly paid salaries during this period. The contention of the appellant State is that the writ petitioner has committed fraud and though he was appointed by order passed in the year 1974, in pursuance of which he has served up to the year 1976 only and left the job and after 36 years he rejoined on the post in connivance with the officer of the appellant State and when this fact came to the knowledge of the competent authority, they immediately issued letters dated 15th September, 2008, conveying the concerned persons not to allow the writ petitioner to discharge the duties on the post as he has already resigned in the year 1976 and also conveying that in case the amount of Rs. 5,41,738/-which has been drawn against the salary for the period from 2006 to 2008 is not deposited by the writ petitioner, the State will lodge the F.I.R. The voluminous documentary evidence have been placed on record along with the L.P.A. 6. 5,41,738/-which has been drawn against the salary for the period from 2006 to 2008 is not deposited by the writ petitioner, the State will lodge the F.I.R. The voluminous documentary evidence have been placed on record along with the L.P.A. 6. On 11th July, 2011 when the matter was taken up, the writ petitioner sought time to place on record certain more facts and he was permitted to place on record more facts by submitting affidavit. The petitioner then submitted counter affidavit on 27.07.2011. The writ petitioner in counter affidavit also has placed on record the photocopy of the Attendance Register starting from February, 2003, without, however, disclosing as to from where he got the same. 7. The facts, which are not in dispute, are that in the year 1974 the petitioner was given appointment on the post of teacher, that too as untrained teacher. The appointment was temporary with clear stipulation that the said appointment has been given till regularly trained teachers are appointed and this appointment will come to an end from the date of beginning of the summer break and for that no other information will be given to the writ petitioner. The petitioner in his writ petition has not stated that whether, after the order at Annexure-1 dated 10th September, 1974, any order of his confirmation was passed. It is also not the case of the writ petitioner that his service was extended. Be that as it may, even after getting the communications referred above conveying that the petitioner resigned in the year 1976, the petitioner, while challenging the said communication, did not state in the writ petition anywhere that he discharged the duties on the post during this entire period of 36 years. The petitioner even has not come up with the case that he was on leave. The petitioner even did not disclose as to how after 36 years he could manage to get the order of joining the duty and even after getting opportunity to file counter affidavit to place on record additional facts, he did not disclose the same, nor he stated that he was performing the duties continuously and nor he has disclosed that when he was not on duty from the year 1976 how he could get the order of joining of duty? The appellant State in L.P.A., has given the names of the persons who were appointed on the post on which the petitioner was working and who had been paid salary time to time. Prima facie it is a clear case of fraud committed by the writ petitioner in connivance with some of the officers of the Department of the Government who straightway passed the order permitting the writ petitioner to join duty, which appears to be absolutely non speaking order and without taking into account as to under what circumstances the writ petitioner was allowed to join the duty. 8. Learned counsel for the writ petitioner vehemently submitted that earlier there was Rule 76 in the Jharkhand Service Code, 2001 providing that absence from duty for more than five years will result into automatic termination of service of the employee. That Rule was declared ultra vires by the Division Bench of the Patna High Court in the case of Sobhana Das Gupta Vs. State of Bihar reported in 1974 PLJR 382 and the Rule was amended suitably and as per Sub-Rule (b) of Rule 76, if a Government servant does not resume duty after remaining on leave for a continuous period of 5 years or where a Government servant after the expiry of his leave remains absent from duty, for any period which exceeds a continuous period of five years, then the State Government may remove such employee from service but only in accordance with Rules – obviously by following the procedure for removal of employee. It is submitted that the lien of the employee continues under Rule 28 and the Rule for leave is applicable even to the temporary employees as provided under Rule 235 and 237. With the help of these Rules, learned counsel for the respondent No.1 vehemently submitted that the petitioner could not have been denied to join duty when his services had not been terminated or he had not been removed by following the procedure as required by Rule 76(b) and, therefore, he was rightly allowed to continue to discharge duty on the post. Learned counsel for the respondent-writ petitioner also relied upon another judgment reported in 2004(2) PLJR209 (Raj Nath Rai Vs. Learned counsel for the respondent-writ petitioner also relied upon another judgment reported in 2004(2) PLJR209 (Raj Nath Rai Vs. State of Bihar & Others) wherein, according to learned counsel, it has been held that non-allowing the employee to join the post amounts to removal from service, which is illegal in view of Rule 76(b). 9. We are constrained to observe here that the technicalities of the Rules may be projected in such a manner so as to indicate that great injustice has been caused to the parties. The order which has been challenged by the writ petitioner clearly indicates that the petitioner who did not join the duty after 1976 but could manage to join duty in the year 2003 and could manage to get the amount of the Government in the name of the salary, when he was not in service and was not entitled to the job. In a fact situation, the writ petitioner, deliberately did not disclose that he was not in service from 1976 to 2003 and he failed to produce any document which could indicate that the petitioner applied for rejoining the duty and he was permitted to join duty on his request for any lawful and valid reason. The conduct of the writ petitioner certainly disentitles him from any of the reliefs on this ground and in case, such orders are set aside, that will restore the illegality and will compel the State to continue with the illegal payment and permit the writ petitioner to discharge the duties on the post which he himself has abandoned in the year 1976. Assuming for the sake of argument that the documents of resignation may not be available on record, even then non-serving on the post for 36 years clearly indicate only one conclusion that the writ petitioner had abandoned the service. The Rule referred above has no application where the service has been abandoned by an employee. It applies to a case where there is a dispute with respect to the denial of joining the duty to an employee. The employee who had abandoned the job cannot be said to be an employee at all. Therefore, the plea of the writ petitioner that since his service has not been terminated by following the procedure under Rule 76(b), his lien continues, has no leg to stand because of abandonment of the post by the writ petitioner himself. The employee who had abandoned the job cannot be said to be an employee at all. Therefore, the plea of the writ petitioner that since his service has not been terminated by following the procedure under Rule 76(b), his lien continues, has no leg to stand because of abandonment of the post by the writ petitioner himself. 10. Learned counsel for the respondent-writ petitioner vehemently submitted that the State has deliberately furnished false facts before this Court in this L.P.A as well as before the Single Bench and wrongly stated before the learned Single Judge that there is a stay order against impugned order, whereas on that day, there was no stay order and the State has also stated wrong facts with respect to one small period of payment of salary to other employees on the post which the writ petitioner was holding. The petitioner, whose writ petition was itself absolutely a frivolous one, cannot take the benefit of some mistake committed by the State Government, while stating some facts, which have no direct material bearings on the merit of the case of the writ petitioner, nor the facts have affected the merit of the petition of the writ petitioner. In view of the above reasons also, the appellant's case cannot stand improved. 11. In view of the above reasons, when the aforesaid facts were not before the learned Single Judge, learned Single Judge has allowed the writ petition and, therefore, the order, which proceeded on wrong assumption of fact, is liable to be set aside and hence set aside. The writ petitioner is not entitled to any relief and the writ petition of the writ petitioner is dismissed with cost of Rs. 10,000/-(Rupees Ten Thousand only). The State is now free to proceed to lodge the criminal case against the writ petitioner and also against the persons who had allowed the writ petitioner to join duty.