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2016 DIGILAW 359 (JHR)

Ashok Kumar Tudu v. State of Jharkhand

2016-02-19

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has inter-alia prayed for quashing of the office order dated 01.12.2011 issued by respondent no.3 i.e. the District Superintendent of Education, Dumka pertaining to termination from the services and for a direction upon the respondents to reinstate the petitioner with all consequential benefits in accordance with law. 2. The facts as disclosed in the writ application, in brief is that the petitioner was appointed in services of the government on the post of Primary Teacher on the recommendation of the Bihar Public Service Commission, Patna issued by the respondent no. 3 as contained memo dated 23.06.2000. In pursuance to the said appointment order, the petitioner submitted his joining before the respondent no.3 on 24.06.2000. While continuing as such in Primary School, Budhudih, in March, 2003, he suffered from mental illness which prevented him from joining the School and the father of the petitioner informed respondent no.3 regarding mental illness to the petitioner and requested respondents that when the petitioner becomes medically fit then immediately he would join the services. The wife of the petitioner also informed the then respondent no.3 regarding the mental condition of the petitioner and the petitioner continued to remain under medical treatment till February, 2011. Finally after remaining under the medication and under care and observation and the attending doctor-Dr. Ashish Soy, Neuropsychiatrist, CIP, Kanke, Ranchi examined him and found him fit for duty. The wife of the petitioner filed a representation dated 19.04.2011 before respondent no.3 which did not evoke any response. Again representation by the wife of the petitioner before the Hon'ble Chief Minister, Jharkhand was made on 22.02.2011. Thereafter, the Deputy Secretary to the Hon'ble Chief Minister, Jharkhand vide letter dated 20.05.2011 requested the respondent no.2 to do the needful upon the representation submitted by the petitioner's wife but no order has been passed by the respondent no.2 on joining of the petitioner. To the utter consternation, all of a sudden a press release was published in the daily news papers calling upon the petitioner and one another teacher to submit their defence before respondent no.3 within 15 days failing which the decision with respect to termination of service would be taken. To the utter consternation, all of a sudden a press release was published in the daily news papers calling upon the petitioner and one another teacher to submit their defence before respondent no.3 within 15 days failing which the decision with respect to termination of service would be taken. After coming to know about the aforesaid press release the petitioner submitted representation on 21.11.2011 along with medical prescriptions and fitness certificate before respondent no.3 and requested to consider his case on sympathetic grounds and allow him to join his duties and the respondent no.3 without considering the representation of the petitioner passed an order of termination from services as contained in office order dated 01.12.2011. Being aggrieved by the order of termination dated 01.12.2011 the petitioner left with no other alternative, efficacious and speedy remedy, has approached this Court invoking extra-ordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievances. 3. Per-contra a counter-affidavit has been filed on behalf of the respondents repelling the contentions made in the writ applications. In the counter-affidavit, it has been inter alia submitted that the prayer made by the petitioner is not maintainable, since petitioner was absent from duty for more than eight years and the reliefs sought is not tenable. It has further been submitted that the petitioner without any information and without any notice to the authority, was absent in his school. He had not submitted or stated about his illness before the authority and first time on 19.04.2011, his wife filed an application for reinstatement of the petitioner. On the basis of the application filed by the wife of the petitioner, the respondent no.3 District Superintendent of Education, Dumka vide registered letter dated 21.04.2011 noticed him to appear and put the grievance before the office of the D.S.E., Dumka on 28.04.2011 but the petitioner did not appear and again vide order dated 06.05.2011 informed to the petitioner for appearance on 11.05.2011. But the petitioner did not appear before the authority. The respondents with no other alternative placed the matter under Section 76 of the Bihar/Jharkhand Service Code before District Establishment Committee under the Chairmanship of Deputy Commissioner, Dumka on 11.08.2011. But the petitioner did not appear before the authority. The respondents with no other alternative placed the matter under Section 76 of the Bihar/Jharkhand Service Code before District Establishment Committee under the Chairmanship of Deputy Commissioner, Dumka on 11.08.2011. On the said date, the committee had decided that D.S.E., Dumka through the daily newspaper asked the reason for absence in his duty since more than eight years and on the resolution passed in said committee, the D.S.E., Dumka through local newspaper “Dainik Jagran”, “Hindustan” published notice to put his grievance before the authority and the petitioner on 22.11.2011 had filed his show cause and admitted that he was absent without any information and without notice to the authority. It has further been submitted that the authority after going through the show cause and the facts and circumstances, terminated the petitioner vide memo dated 01.12.2011 under Section 76 of Bihar/Jharkhand Service Code as evident from Annexure-A series to the counter-affidavit. 4. Heard Mr. Ravi Kumar Singh, learned counsel appearing for the petitioner and Mr. R.R. Mishra, G.P.-II, learned counsel appearing for the respondents and perused the documents on records. 5. Learned counsel for the petitioner has strenuously urged before this Court that the impugned order of termination dated 01.12.2011 has been passed in derogation of Rule 76 of the Jharkhand Service Code. Learned counsel for the petitioner further submits that the impugned order of termination has been passed without a full dressed inquiry and without considering the illness of the petitioner and the petitioner could not be removed from the service without following procedure laid down in the Civil Services (Classification, Appeal & Control) Rules. Learned counsel for the petitioner in order to buttress his argument has referred to decision in the case of Krushnakant B. Parmar Vs. Union of India And Another as reported in (2012) 3 SCC 178 at paragraph 17 wherein the Apex Court has been pleased to inter-alia hold absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a government servant. 6. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a government servant. 6. As against this submission of the learned counsel for the petitioner, the learned counsel for the respondents has vehemently submitted that neither the father of the petitioner nor his wife had informed either orally or written to the respondents for the illness of the petitioner but for the first time on 19.04.2011, the factum of mental illness of the petitioner was intimated to the respondents by the wife of the petitioner. The petitioner was absent from duty since more than eight years. After receipt of the said representation the respondents gave opportunity to petitioner to appear on 11.05.2011 and the petitioner failed to appear before the respondents. Therefore, taking recourse to Rule 76 of the Jharkhand Service Code, 2001, the services of the petitioner has been terminated vide order dated 01.12.2011 by respondent no.3 vide Annexure-7 to the writ petition which does not warrant any interference this Court. 7. After hearing the learned counsel for the respective parties at length and on perusal of the relevant documents on records, I am of the considered view that the petitioner has been able to make out a case for interference due to the following facts and reasons :- (i) In the instant case, in pursuance to selection and the recommendation of the Bihar Public Service Commission, the petitioner was appointed on the post of Primary School Teacher in the year 2000 but to the utter misfortune the petitioner suffered from mental illness which prevented him from joining the duties. Though, there has some dispute regarding intimation by the wife and father of the petitioner to the authority regarding illness of petitioner which has been strongly denied by the respondents but as per the Rule-76 of the Jharkhand Service Code if an employee remains absent for continuous 5 years then the services of the employee can be dispensed with after following procedure. (ii) In the instant case, admittedly no such proceeding has been initiated prior to infliction of major punishment of dismissal/termination from services since the petitioner was holding a civil post. (ii) In the instant case, admittedly no such proceeding has been initiated prior to infliction of major punishment of dismissal/termination from services since the petitioner was holding a civil post. The services of the petitioner could not be dispensed with without following the procedure and, therefore, Article 311(2) of the Constitution of India is attracted in the case. (iii) Taking into consideration the medical certificates, full dressed inquiry was necessary, which could not be held to determine wilful or unauthorized absence of the petitioner. Although, the instant petition, the petitioner has remained absent from 8 years but the aforesaid rule envisages procedure to be adopted for removal from services in case of continuation of absence from duty for more than 5 years. Since the same has not been adhered to, in the instant case, the impugned order dated 01.12.2011 pertaining to removal from termination by the respondent no. 3 is subject to judicial review. 8. On the cumulative effect of aforesaid facts, reasons and judicial pronouncement, the impugned order of termination dated 01.12.2011 passed by the respondent no.3 Annexure-7 to the writ petition being not legally sustainable, is hereby quashed. However, the matter is remitted to the respondents to conduct a de novo proceedings regarding alleged unauthorized absence from duty, in accordance with law and to conclude the same within a period of four months from the date of receipt of copy/communication of order. The writ petition stands disposed of with the aforesaid directions.