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Jharkhand High Court · body

2018 DIGILAW 2040 (JHR)

Amit Kumar Pathak v. State of Jharkhand

2018-09-11

APARESH KUMAR SINGH

body2018
ORDER : 1. Heard learned counsel for the petitioner and the State. 2. Petitioner, who has been dismissed from the post of Livestock Inspector under Animal Husbandry Department w.e.f. 16th January 2012 i.e. the date of his conviction in R.C.52(A)/1996 Pat. vide order bearing memo no.328 dated 10th March 2017 (Annexure-9) communicated vide letter no.166 dated 20th March 2017 (Annexure-8) issued by the respondent nos. 3 and 4 respectively, has approached this Court being aggrieved with part of the impugned order by which the subsistence allowance has been ordered to be stopped with retrospective effect from the date of his conviction. Reliance has been placed by the petitioner on the judgment rendered by the learned Single Judge of this Court in W.P.(S) No.5500/2016 and W.P.(S) No.4867/2011 (Annexure-11 series) rendered in similar circumstances. 3. Counsel for the petitioner contends that this Court in the case of Dr. Awadh Kishore Lal in W.P.(S) No.4867/2011 has held that the petitioner is entitled to subsistence allowance w.e.f. 27th April 2009 i.e. the date of his conviction till the issuance of the notification of dismissal on 10th February 2011 made effective from the date of conviction. As such the issue under controversy is no longer res-integra. 4. Learned counsel for the State contends on the basis of instructions furnished that the petitioner’s conviction was widely published in newspapers in 2012. Upon the communication received from the State of Bihar on 13th April 2016, the State of Jharkhand has issued the notification of his dismissal on 10th March 2017. Payment of subsistence allowance after the date of his conviction i.e. his dismissal would therefore not be justified. 5. Considered the submissions of counsel for the parties in the light of the pleadings on record and the stand of the respondent State conveyed on instruction by the learned State counsel. 6. The only issue herein is in relation to the claim of subsistence allowance of the petitioner which by virtue of order of dismissal dated 10th March 2017 is being made effective from the date of his conviction dated 16th January 2012. Learned Single Judge of this Court in the case of Dr. Awadh Kishore Lal while dealing with the same issue has categorically held as under:- “8. Learned Single Judge of this Court in the case of Dr. Awadh Kishore Lal while dealing with the same issue has categorically held as under:- “8. Having heard learned counsel for the respective parties and on perusal of the documents on records, it appears that the petitioner is entitled to subsistence allowance, in view of the following facts, reasons and judicial pronouncements:- (i) Although the petitioner has been dismissed with retrospective effect from 27.04.2009 but the impugned order of punishment was passed on 10.02.2011, therefore, the petitioner is entitled to subsistence allowance till the impugned order of punishment Annexure 2 has been passed. (ii) Moreover, the issue pertaining to retrospective dismissal has been illuminatively dealt by the Hon'ble Apex Court in the case of State Bank of Patiala and Another Vs. Ram Niwas Bansal (Dead) through L.Rs. as reported in AIR 2014 SC 1264 , wherein paragraph nos. 14 and 15 reads as under:- 14. The three issues that eminently emerge for consideration are, (i) whether the employer Bank could have, in law, passed an order of dismissal with retrospective effect; (ii) whether the delinquent officer stood superannuated after completion of thirty years as provided under the Regulations on 25.2.1992; and (iii) whether the legal heirs of the deceased-employee are entitled to get the entire salary computed till the actual passing of the order of dismissal, that is, 22.11.2001 or for that matter till the date of superannuation, that is, 25.2.1992. 15. Regard being had to nature of controversy, we shall proceed to deal with first point first, that is, whether the order of removal could have been made with retrospective effect. Mr. Patwalia, learned senior counsel appearing for the employee, has submitted that the disciplinary authority could not have passed an order of removal by making it operational from a retrospective date. He has commended us to a three-Judge Bench decision in R. Jeevaratnam v. State of Madras. In the said case, the appellant-therein instituted a suit for a declaration that the order of dismissal from service was illegal and void. The trial Court dismissed the suit and the said decree was affirmed in appeal by the High Court. One of the contentions raised before this Court that the order of dismissal dated October 17, 1950 having been passed with retrospective effect, i.e., May 29, 1949, was illegal and inoperative. The trial Court dismissed the suit and the said decree was affirmed in appeal by the High Court. One of the contentions raised before this Court that the order of dismissal dated October 17, 1950 having been passed with retrospective effect, i.e., May 29, 1949, was illegal and inoperative. This Court opined that an order of dismissal with retrospective effect is, in substance, an order of dismissal as from the date of the order with the superadded direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming that the second part of the order is invalid, there is no reason why the first part of the order should not be given the fullest effect. The said principle has been followed in The Gujarat Mineral Development Corporation v. Shri P. H. Brahmbhatt. (iii) In the service jurisprudence, there is no concept of deemed dismissal based on conviction in criminal cases without an order to that effect. Since in the instant case, the impugned notification of dismissal was issued on 10.02.2011, the petitioner was deemed to be continuing till the said date. In view of the aforesaid decision, the dismissal of petitioner takes effect from the date of notification i.e. 10.02.2011 not anterior to that date and, therefore, the petitioner is entitled to subsistence allowance with effect from 27.04.2009 till 10.02.2011. 9. On the conspectus of the facts and judicial pronouncements referred to hereinabove and the reasons stated in the foregoing paragraphs the petitioner is entitled to subsistence allowance with effect form 27.04.2009 till 10.02.2011. The respondents are directed to make payment of subsistence allowance within a period of four months from the date of receipt/production of a copy of this order.” 7. In such circumstances, the respondents are obliged to make payment of subsistence allowance to the petitioner, if withheld, for the period from the date of his conviction till the date of issuance of the notification dated 10th March 2017 within a period of eight weeks from the date of receipt/production of a copy of this order. Writ petition is allowed in the manner and to the extent indicated herein above. Petition allowed.