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2014 DIGILAW 361 (JHR)

Surya Narayan Roy v. State of Jharkhand

2014-03-07

APARESH KUMAR SINGH

body2014
ORDER Heard counsel for the parties. 2. The petitioner retired from the post of Deputy Director, Employment (Santhal Pargana Division, Dumka) on 31.7.2010 after having remained in services of the respondent- department of Labour, Employment and Training, since his initial appointment on 7.4.1978. Before retirement of the petitioner the respondent-department issued an order at Annexure-3 dated 14.2.2009 under the signature of Director, Employment and Training directing the petitioner to deposit a sum of Rs. 36,71,933/- in the Directorate. The said amount was said to be the arrears of salary paid to two persons namely Arbind Kumar Rakesh and Binod Kumar Singh for the period from 8.1.1992 and 3.1.1992 to 7.5.2008 and 6.5.2008 with 9% interest totaling Rs.36,71,933/-. It was further indicated in the said order that the said recovery was being made in the light of the judgment passed in C.W.J.C. No. 1820 of 1993 and L.P.A. No. 20 of 1998 pursuant to which the said two persons were paid the arrears of their salary as aforesaid along with 9% interest. The said order also indicated that petitioner was responsible for making illegal appointment of the two persons and upon advise of the Finance Department amount is being recovered. 3. It is not in dispute that before the order of recovery no show cause notice was issued upon the petitioner. However, according to the petitioner on 7.7.1992 a departmental proceeding was initiated against him vide Annexure-1 for having made illegal appointments of seven persons on the post of clerk while he was posted as In-charge Assistant Director, Sub Regional Employment Exchange, Jamshedpur. Learned counsel for the petitioner has also pointed out that the said disciplinary proceeding ended in his exoneration by the resolution dated 8.3.1995 of the respondent department which is at Annexure-2. However, the said resolution also referred that seven appointments were cancelled by the department and in that view of the matter, the Inquiry Officer has exonerated the petitioner, which was accepted by the Disciplinary Authority by the resolution dated 8.3.1995. It also appears that persons whose appointment were cancelled namely Arbind Kumar Rakesh and Binod Kumar Singh preferred a writ petition being C.W.J.C. No. 1820 of 1993(R) in which the respondents also took a stand that the services of the said persons were terminated after an inquiry and after giving them reasonable opportunity of being heard. It also appears that persons whose appointment were cancelled namely Arbind Kumar Rakesh and Binod Kumar Singh preferred a writ petition being C.W.J.C. No. 1820 of 1993(R) in which the respondents also took a stand that the services of the said persons were terminated after an inquiry and after giving them reasonable opportunity of being heard. In the said writ petition, learned Single Judge of the Patna High Court, after referring to the facts of the case, affidavits exchanged and after considering the stand of the rival parties allowed the writ petition by judgment dated 12.12.1997, relevant para 7 and 8 are quoted herein below:- “Para 7:- Let us take the worst view against the petitioners that their appointments were illegal as the appointing authority had no jurisdiction and the proper procedure had not been followed but still then up to 10.2.1994 the petitioners should be construed as in service and when the order dated 10.2.1994 is found to be devoid of legality because of not giving any chance to the petitioners for substantiating their cases then they should be construed as still in service and they are entitled to get their salaries since the date of joining. Para 8:-In that view of the mater, this writ petition is hereby allowed and the termination order or the cancellation of appointment order dated 10.2.1994 and 7.7.1992 are hereby quashed having no force at all in the eye of law and the petitioners should be construed in service and they should be paid their salaries regularly till the decision is arrived at legally regarding the legality or validity of their appointment according to the law. The arrear salaries must be made available to the petitioners within a period of three months with 9% interest. It is made clear that this court has not entered in to the merit regarding legality/or validity of the appointment of the petitioners. If authorities feel it proper that the petitioners are not being properly appointed and their appointments were illegal on the face of it, then they are at liberty to proceed against the petitioners according to law”. 4. The Government went in appeal which was dismissed in L.P.A. No. 20 of 1998(R) for non prosecution on 27.8.2007. Apparently, those two persons were therefore allowed to submit their joining and were paid arrears of salary with 9% interest as directed by the learned Single Judge. 5. 4. The Government went in appeal which was dismissed in L.P.A. No. 20 of 1998(R) for non prosecution on 27.8.2007. Apparently, those two persons were therefore allowed to submit their joining and were paid arrears of salary with 9% interest as directed by the learned Single Judge. 5. The respondents have justified the impugned order through submissions made in the counter affidavit that the amount which had to be paid to the said persons was on account of illegal appointment by the petitioner. Therefore, on the advise of Finance department, such an order of recovery has been passed before his retirement. 6. The petitioner, after his retirement has preferred the instant writ petition seeking post retirement benefits and challenging the said orders dated 14.2.2009 (Annexure-3) and 28.5.2009 (Annexure-5). During the pendency of the instant writ petition, respondents further chose to issue show cause notice upon the petitioner for deposit of Rs.2,30,442/- as arrear house rent of JUSCO vide letter dated 4.8.2011. The respondents also chose to issue show cause purportedly under Rule 139 of the Jharkhand Pension Rule vide letter dated 26.7.2011, which is annexed as Annexure-E to the counter affidavit asking the petitioner as to why the said amount of Rs. 36,71,933/- + Rs.2,30,442/- totalling Rs. 39,02,335/- be not recovered from his Pension and Gratuity. According to the respondent- State reminder was given to him subsequently by letter dated 16.8.2011, annexed as Annexure-E to the reply to the I.A. No. 796/2013 preferred by the petitioner to submit his reply along with all necessary documents in his defence. Apparently, the petitioner had submitted his representation against the order dated 14.2.2009 (Annexure-3) which are also enclosed as Annexure-A to the reply to the I.A. No. 796 of 2013. 7. In any case the respondents have not taken any decision upon the said show cause issued under Rule 139 of the Jharkhand Pension Rules. On the other hand, from the aforesaid facts it is clear that before issuance of the order at Annexure-3 dated 14.2.2009 no show cause was issued upon the petitioner to explain his defence as to why the said amount of Rs.36,71,933 be not recovered from him. On the other hand, from the aforesaid facts it is clear that before issuance of the order at Annexure-3 dated 14.2.2009 no show cause was issued upon the petitioner to explain his defence as to why the said amount of Rs.36,71,933 be not recovered from him. In the absence of the opportunity to respond and any show cause notice, the impugned order dated 14.2.2009, therefore is clearly in violation of Principle of Natural Justice as the same has also got serious adverse consequences against the petitioner's service and other post retirement benefits. If the department had chosen to seek realization of the amount paid as arrears of salary along with interest @ 9% pursuant to the judgment passed in C.W.J.C No. 1820 of 1993 by which termination of said two persons namely Arbind Kumar Rakesh and Binod Kumar Singh was quashed, it was incumbent upon the respondents to at-least give show cause notice to the petitioner and/or initiate a departmental proceeding for recovery of the amount in question. Therefore, the impugned order dated 14.2.2009 cannot be sustained in the eye of law and facts. 8. The petitioner has stated that there being no departmental proceeding on the date of his retirement, respondents could not have withheld the post retirement dues such as pension, gratuity and leave encashment in view of the full Bench judgment rendered by this court in the case of Dr. Dudh Nath Pandey Vrs. State of Jharkhand & Others reported in 2007(4) JCR 1(Jhr.)(FB). It is submitted that said view has also been affirmed by the Hon'ble Supreme Court in the case of State of Jharkhand Vrs. Jitendra Kumar Srivastava reported in 2013(3) JLJR 537 (SC). Learned counsel for the petitioner submits that this Court in similar circumstances also directed the respondents to make payments of admissible post retirement benefit such as pension, gratuity and leave encashment to the employee even during the pendency of the proceeding initiated under Jharkhand Pension Rules. 9. In the instant case apparently the respondents have initiated the proceeding invoking the Rule 139 of the Jharkhand Pension Rules, however they are yet to take an informed decision in the matter. Therefore, the respondents are required to take decision on the show cause notice issued under Rule 139 of the Jharkhand Pension Rule against the petitioner within a period of 12 weeks from the date of receipt of the copy of this order. Therefore, the respondents are required to take decision on the show cause notice issued under Rule 139 of the Jharkhand Pension Rule against the petitioner within a period of 12 weeks from the date of receipt of the copy of this order. The petitioner will have liberty to submit his reply, if not already submitted upon the said show cause within a period of three weeks from today. However, if the petitioner does not cooperate, it would be open for the respondents to arrive at a decision within the aforesaid period in accordance with law. 10. However, during the pendency of the departmental proceeding, as has been held in the case of Dr. Dudh Nath Pandey (Supra) as also affirmed by the Hon'ble Supreme Court in the case of Jitendra Kumar Srivastave (supra), respondents are not justified in withholding the admissible post retirement benefit like pension, gratuity and leave encashment of the petitioner as also even the G.P.F amount which is stated to have remained unpaid. 11. In view of the aforesaid facts and circumstances, the impugned order dated 14.2.2009 annexed at Annexure-3 and order dated 28.5.2009 (Annexure-5) are accordingly, quashed. The respondents are directed to take a decision in the matter as aforesaid within a period of 12 weeks in accordance with law. 12. The writ petition is allowed in the aforesaid manner.