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2013 DIGILAW 507 (JHR)

Umesh Chandra Sinha v. State of Jharkhand

2013-04-16

APARESH KUMAR SINGH

body2013
JUDGMENT Heard counsel for the parties. 2. The petitioner is challenging the order contained in Memo no. 3118/M dated 13.10.2006 issued by the Deputy Secretary, Mines and Geology Department by which the office order no. 2469 dated 19.12.2002 has been cancelled and the amount paid as additional pay to the petitioner is being sought to be revoked. According to the petitioner, he was initially appointed as Secretariat Assistant in the year 1979 and since 1989 was posted in the Mines and Geology Department under the respondents erstwhile State of Bihar now State of Jharkhand. The services of the petitioner were allocated to the respondent State of Jharkhand after bifurcation of the State. The petitioner had educational qualifications of M.A., L.L.B. and had worked in the Law Section of the Mines and Geology Department of undivided State of Bihar for approximately five years. Thereafter he was directed to act as Incharge, Legal Cell with immediate effect vide order as contained in Memo no. 37/2001907/M dated 21.7.2001, Annexure2. According to the petitioner, he was working as an Acting Law Officer in addition to his original post of Secretarial Assistant in view of the order dated 21.7.2001 and, therefore, he claimed additional pay of 20 % in terms of Rule 103(B) of the Jharkhand Service Code. 3. Counsel for the petitioner submits that the respondents keeping in view the representation of the petitioner, issued a notification contained at Annexure4, dated 19.12.2002 whereunder the petitioner was allowed 20% additional pay (maximum of Rs. 250/) for having performed the work of Incharge, Legal Cell of the Mines and Geology Department apart from his original post of Secretariat Assistant. By Annexure5 dated 13.10.2006, the said order has been cancelled, according to the petitioner, without any opportunity of show cause or notice. He further submits that the impugned order is without any reason and suffers from complete non application of mind. Learned counsel for the petitioner has also submitted that the grounds taken in the counter affidavit on behalf of the respondent are in the nature of supplementing the impugned order, which apparently does not contain any reason. He further submits that certain instances of periods after October, 2006 have been cited to justify the revocation of the order granting additional pay to the petitioner. Therefore, the impugned order is unsustainable in law and deserves to be quashed. 4. He further submits that certain instances of periods after October, 2006 have been cited to justify the revocation of the order granting additional pay to the petitioner. Therefore, the impugned order is unsustainable in law and deserves to be quashed. 4. Learned counsel for the respondents submits that the petitioner was actually not performing any additional duty but he was performing the duty of Incharge, Legal Cell of the Mines and Geology Department in connection with the cases of High Court and other forums in fact was not discharging the duty of the Secretariat Assistant. In view of the aforesaid fact, the grant of additional pay to the petitioner, Annexure4, was in teeth of Section 103(B) and, therefore, the impugned order has been issued revoking the earlier order dated 19.12.2002. 5. I have heard counsel for the parties at length and gone through the relevant materials on record including the impugned order. On the face of it, the impugned order does not contain any reasons and it has revoked the order passed by the State Government under the signature of the Deputy Secretary after concurrence of the Finance Department, whereunder the benefit of additional pay was granted to the petitioner for having discharged the duty of the Incharge, Legal Cell of the Mines and Geology Department apart from his original post of Secretariat Assistant. Such permission was granted by an order dated 21.7.2001 issued by the Mines and Geology Department, Government of Jharkhand itself permitting the petitioner to carry out the additional work. The impugned order, therefore, has adverse civil consequences as Rule 103(B) provides for grant of additional pay in cases where any employee is made to discharge additional duty apart from his substantive post. 6. It is not in dispute that the impugned order has been passed without any opportunity of show cause or notice to the petitioner. The impugned order, therefore, can not be sustained in law as well as on facts and it is, accordingly, quashed. 7. It will, however, be open to the respondents to give notice before intending to take any action against the petitioner in respect of the same. 8. The writ petition is , accordingly, allowed.