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2016 DIGILAW 350 (JHR)

Jagdish Chandra Modi v. State of Jharkhand

2016-02-17

PRAMATH PATNAIK

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JUDGMENT : PRAMATH PATNAIK, J. In the instant writ application, the petitioner has inter alia, prayed for issuance of an appropriate writ/direction for setting aside the memo No. 517, dated 25.03.2011 (Annexure-4), passed by the Respondent No.3 pertaining to dismissal from service with retrospective date i.e. 18.06.2002 without any finding of guilt in the departmental proceeding that too after retirement of the petitioner from service i.e. 28.02.2011. The petitioner further prays for a direction commanding upon the respondents to release the entire retirement benefits to the petitioner, such as, provident fund, gratuity, leave encashment, group insurance etc. and for release of the pension. 2. The facts, as disclosed in the instant writ petition, in nutshell, are that the petitioner joined as Assistant Teacher in the Primary School, Mohanpur, Chandankyari-2, District-Bokaro in the year 1992. In a criminal case, registered under Sections 307 and 148/34 of the Indian Penal Code, the petitioner was convicted by the learned trial court in the year 1992 and in 2002, the petitioner filed a Cr. Appeal No. 358 of 2002 before this Court and this Court has been pleased to modify the order of conviction under Sections 324 and 148/34 of the Indian Penal Code. Being aggrieved by the order passed in Cr. Appeal No. 358 of 2002, the petitioner preferred Appeal being Cr. Appeal No.2160 of 2010 before the Hon'ble Apex Court and vide order dated 16.11.2010, the Hon'ble Supreme Court reduced the sentence of the petitioner to the period of imprisonment already undergone by him. The petitioner was put under suspension by the Respondent No. 3 vide order dated 26.11.2010 and the order was passed that he was entitled only for the subsistence allowance. The petitioner retired from service on 28.02.2011 during the period of suspension on attaining the age of superannuation. Thereafter on 07.03.2011, the petitioner requested the Area Education Officer Bermo cum Enquiry Officer to withdraw his suspension order as he has already retired. The petitioner informed that he has not received any subsistence allowance during the period of suspension. The respondent no. 3 vide order dated 25.03.2011 dismissed the petitioner from his services due to criminal case with effect from 18.06.2002 and it has been directed in the impugned order that the petitioner is only entitled for Group Insurance and Provident Fund with interest. The respondent no. 3 vide order dated 25.03.2011 dismissed the petitioner from his services due to criminal case with effect from 18.06.2002 and it has been directed in the impugned order that the petitioner is only entitled for Group Insurance and Provident Fund with interest. Being aggrieved and dissatisfied with the impugned order dated 25.03.2011 (Annexure-4), the petitioner has been constrained to approach this Court under Article 226 of the Constitution of India for redressal of his grievances. 3. Ms. Ruchi Rampuria, learned counsel for the petitioner has submitted with vehemence that the impugned order (Annexure-4) has been passed in violation of Rule 43 (b) of the Bihar Pension Rules and the same is not legally sustainable in the eyes of law. Learned counsel for the petitioner further submits that since the petitioner retired from service on 28.02.2011, the relationship of the master and the servant came to an end from the said date and the impugned order dated 25.03.2011 could not have been passed after retirement of the petitioner from Government service. Learned counsel for the petitioner further submits that the second proviso to Article 311 (2) of the Constitution of India provides that the government servant may be dismissed without being put through departmental proceeding on the ground of conduct which has led to his conviction on a criminal charge. The proviso only does away with the requirement of conducting a departmental proceeding but does not provide that such a conviction on a criminal charge automatically terminates the employment. Therefore, the impugned order (Annexure-4) is not legally sustainable. Learned counsel for the petitioner further submits that the impugned order of punishment dated 25.03.2011, which pertains to dismissal from services after retirement with retrospective effect is not legally sustainable in view of the decision reported in 1999 (1) PLJR 69 , Sadanand Ram-versus-The State of Bihar, wherein, it has been inter alia, held that the order of dismissal cannot be passed with retrospective effect. However, the authority can proceed against the delinquent employee under Rule 43 of the Bihar Pension Rules. However, the authority can proceed against the delinquent employee under Rule 43 of the Bihar Pension Rules. Learned counsel for the petitioner has further drawn the attention of the Court to State Bank of Patiala & Anr.-versus-Ram Niwas Bansal (Dead), 2014 AIR SCW 1482, wherein, the Hon'ble Apex Court has inter alia, held that as far as the order of removal being made retrospectively operational, there can be no trace of doubt that it cannot be made retrospective. Learned counsel for the petitioner further submits that after retirement from services, the only punishment that can be inflicted against the petitioner is by resorting to Rule 43 of the Bihar Pension Rules and in this respect, learned counsel has referred to Shambhu Saran-versus-The State of Bihar & Ors., 2000 (1) PLJR 665 (FB). 4. Counter affidavit has been filed on behalf of the Respondent No. 3, controverting the averments made in the writ application. In the counter affidavit, it has been inter alia, submitted that the order of conviction of the petitioner has been upheld up to the Hon'ble Apex Court of India and it has attained finality and it is submitted that under proviso (a) to the Article 311 of the Constitution of India, a Government servant may be dismissed or removed on the ground of misconduct which has laid to his conviction on a criminal charge and after affirmation of the order of conviction of the petitioner, the District Superintendent of Education, Bokaro after getting the knowledge about the same, placed the matter in the meeting of the District Education Establishment Committee, Bokaro and it was unanimously decided to terminate the petitioner from his services with effect from 18.06.2002, when he was initially convicted by the Additional District and Sessions Judge, F.T.C. No. IV, Bokaro in Sessions Trial No. 452 of 1995. Therefore, the order of dismissal has been passed in accordance with law and in the interest of justice. 5 .Supplementary counter affidavit has also been filed on behalf of the Respondent No. 3, wherein, it has been submitted that vide letter dated 28.10.2003, the State Government amended its earlier circular relating to the departmental proceedings in respect of the Government servants involved in criminal misconducts, whereby the Government resolved to make use of proviso (a) to Article 311 (2) of the Constitution of India, which has been annexed as Annexure-A to the supplementary counter affidavit. It is further submitted that in view of the said Circular, the petitioner would have been dismissed by necessity on 18.06.2002, when he was convicted for the first time by the learned trial court. 6. Ms. Jyoti Nayan, learned J.C. to G.P. IV appearing for the Respondent-State argued that in view of the Circular of the Government at Annexure-A, the order of punishment has been passed, which is legally sustainable and moreover, the said punishment has been passed in pursuance to Article 311 of the Constitution of India and therefore, the writ petition being devoid of any merit should be dismissed in limini. 7.After hearing the learned counsel for the respective parties at length and on perusal of the other relevant records, it appears that the petitioner has been able to make out a case for interference on the following grounds: - Admittedly, the petitioner retired from service on 28.02.2011 and the impugned order of punishment of dismissal from service has been passed on 25.03.2011 vide Annexure-4, which inter alia, states that the order of dismissal from service is given effect to retrospectively, with effect from 18.06.2002. Once a Government servant retires on attaining the age of superannuation, the only punishment that can be inflicted is by resorting to Rule 43 of the Bihar Pension Rules. On perusal of the impugned order (Annexure-4), there is no doubt that the proceeding under Rule 43 (b) of the Pension Rules has not been initiated prior to infliction of punishment order (Annexure-4) and therefore, the impugned order on that score is not legally sustainable. 8. In view of the reasons stated in the foregoing paragraphs and in view of the decisions cited hereinabove, the impugned order of punishment dated 25.03.2011 (Annexure-4), which is not legally sustainable, is hereby quashed and set aside and the respondents are directed to pass appropriate order so far as the period, the petitioner was put under suspension i.e. from 26.11.2010 to 28.02.2011 under Rule 96/97 of the Jharkhand Service Code pertaining to that period. However, the liberty is reserved with the respondents to initiate a de novo proceeding in accordance with law, after affording opportunity to the petitioner. 9. With the aforesaid direction, this writ petition stands disposed of. Petition disposed of.