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2020 DIGILAW 168 (JHR)

Ranjit Kaur v. State of Jharkhand

2020-01-27

S.N.PATHAK

body2020
JUDGMENT : Heard the parties. 2. Petitioner confines his prayer for regularization of his services for the period between 11.12.1987 to 03.09.1992 with other consequential benefits and further payment of retiral benefits and other emoluments taking into consideration that the aforesaid period has been regularized for all purposes. 3. As per factual matrix, the petitioner was appointed as Assistant Teacher on 07.02.1983 vide memo No. 387, issued by District Education Officer, Hazaribagh and joined the services in the erstwhile State of Bihar on 12.02.1983, at Surajpura Primary School Barhi-I at Hazaribagh district. Petitioner continued to discharge her duties with utmost satisfaction of all concerned and thereafter, vide memo dated 22.06.1984, she was deputed to Silwar Middle School, Hazaribagh. At the time of his posting at Hazaribagh, petitioner preferred an application dated 11.07.1986 for transfer to Patna and the same was forwarded by the District Education Officer, Hazaribagh but no order was passed on her said application. Petitioner continued to discharge her duties at Silwar, Middle School, Hazaribagh. Later on, vide memo No. 6854 dated 10.12.1987, issued under the signature of District Education Officer, Hazaribagh, petitioner was directed to revert back to her original place of posting i.e. Surajpura Primary School, Barhi-I, Hazaribagh. Thereafter, the petitioner was relieved from her duties from Silwar Middle School, Hazaribagh to join her duties at Surajpura Primary School, Barhi. In the meantime, as order of transfer of petitioner to Patna was recalled as such, she joined on 04.09.1992 in Hazaribagh district, where, after rendering services to the full satisfaction of the respondents, she retired on 30.04.2015. It is the specific case of the petitioner that though she has retired on 30.04.2015 and after her retirement all the benefits have been extended to her but the period from 11.12.1987 to 03.09.1992 has been considered as period of unauthorized absence and the same has not been regularized and hence, the petitioner has been denied the benefits of the said period. 4. The petitioner represented before the respondent-authorities for regularizing the said period but the same was not considered and rather, the same was rejected vide order dated 27.04.2015, with an observation that the said period has been treated as period of willful absence and in view of Rule 265 of Jharkhand Service Code, it amounts to misconduct for the purpose of Rule 56 and as such, petitioner is not entitled for any benefits for the period. The order dated 27.04.2015, passed by the District Superintendent of Education, Hazaribagh, has also been affirmed vide order dated 31.03.2016 (Annexure-15) as contained in memo No. 1065. Assailing the said orders petitioner has knocked the door of this Court. 5. Mr. Piyush Chitresh, learned counsel appearing for the petitioner strenuously urges that the respondents have rejected the case of the petitioner and have treated the period from 11.12.1987 to 03.09.1992, as the period of unauthorized absence, amounting to misconduct, which is not tenable in the eyes of law. Learned counsel submits that never ever during the period of service any show-cause notice was issued to the petitioner against unauthorized absence. Learned counsel further argues that petitioner remained absent due to the fault of the respondent-authorities and it cannot be said to be a period of unauthorized absence as admittedly when no vacant post was available, the petitioner made his joining in the headquarter i.e. in the office of D.S.E. Hazaribagh. Learned counsel further argues that no document has been brought on record to show that the period from 11.12.1987 to 03.09.1992, was the period of unauthorized absence and it was only after retirement of the petitioner, the said period has been treated as unauthorized absence and as such, a direction be given to the respondent-authorities to consider the same for the purpose of regularization and also for the purpose of making all the payments regarding fixation of pension and other retiral benefits. 6. Per contra, counter-affidavit has been filed. Learned counsel for the respondent-State draws the attention of the Court towards paras-20 to 22 of the counter-affidavit dated 05.12.2019 and submits that inter district transfer from Hazaribagh to Patna district was made by the Director, Primary Education, Bihar, Patna vide memo No. 4402 dated 13.12.1988 and this inter district transfer order was cancelled vide memo No. 188 dated 13.08.1992 by the Director, Primary Education, Bihar, Patna, which clearly shows that the petitioner did not join even in the office of District Superintendent of Education, Patna. Therefore, very comfortably it can be said that petitioner remained absent from 11.12.1987 to 03.09.1992. After representation of the petitioner on 13.08.1992 entire matter was placed before the meeting of District Education Establishment Committee, Hazaribagh and as per the decision of the Committee, the petitioner was posted in Primary School, Nawada under Katkamsandi block of Hazaribagh district vide memo No. 4020 dated 29.08.1992. After representation of the petitioner on 13.08.1992 entire matter was placed before the meeting of District Education Establishment Committee, Hazaribagh and as per the decision of the Committee, the petitioner was posted in Primary School, Nawada under Katkamsandi block of Hazaribagh district vide memo No. 4020 dated 29.08.1992. Therefore, when she was relieved, there was no requirement to issue any notice of unauthorized absence. Petitioner did not worked within the jurisdiction of District Superintendent of Education, as she was inter district transferred and neither she had submitted any absentee report for the inter district transfer. Therefore, the said period 11.12.1987 to 03.09.1992 has been treated as unauthorized absence and as such, justifying the impugned orders it has been argued that rightly said period was treated as period of unauthorized absence and petitioner is not entitled for any benefits. 7. Be that as it may, on a consideration of the facts and circumstances of the case as also the submissions made across the bar, this Court is of the considered opinion that case of the present petitioner needs consideration. Admittedly, nothing has been brought on record to show that any show-cause notice regarding period of unauthorized absence was ever issued to the petitioner. In the counter-affidavit a specific stand has been made by the respondents that as per Rule 265 of Jharkhand Service Code, the period of willful absence may be treated as misconduct for the purpose of Rule 56. Assuming that respondents had treated this period of willful absence as misconduct for the purpose of Rule 56, but the same cannot be done in absence of any show-cause notice or departmental proceeding. 8. From perusal of entire counter-affidavit and the documents brought on record, nowhere it has been said that show-cause notice or any proceeding was ever initiated against the petitioner for the period of unauthorized absence or willful absence. The respondent-authorities have taken a plea that as the petitioner was posted in another district and it was inter district transfer, it was incumbent upon the District Superintendent of Education of that district to take a decision. The said argument of the respondent-authorities are not acceptable to this Court. The issue has arisen only after the retirement of petitioner. The respondent-authorities have taken a plea that as the petitioner was posted in another district and it was inter district transfer, it was incumbent upon the District Superintendent of Education of that district to take a decision. The said argument of the respondent-authorities are not acceptable to this Court. The issue has arisen only after the retirement of petitioner. In absence of any show-cause notice or in absence of any proceeding against the petitioner regarding period of unauthorized absence and in view of the fact that petitioner did not join the transferred post as no vacant post was available and petitioner had represented before the respondent-authorities bringing the said fact to the knowledge and also in view of the fact that petitioner made her joining before the District Superintendent of Education, Hazaribagh and as such, said period cannot be treated as period of unauthorized absence. 9. In view of the aforesaid facts and circumstances, order dated 27.04.2015 (Annexure-13), passed by the District Superintendent of Education, Hazaribagh, as also the order dated 31.03.2016 (Annexure-15), passed by Deputy Commissioner, Hazaribagh, are hereby quashed and set aside. Accordingly, I hereby direct the respondents to treat the period of unauthorized absence of petitioner as period of continuous service and said period has also be calculated for making payments, the salary as well as retiral benefits. The entire benefits be paid to the petitioner within a period of six weeks. 10. Resultantly, the writ petition stands allowed.