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2021 DIGILAW 306 (JHR)

Bhaswati Sharma v. State Of Jharkhand

2021-03-16

DEEPAK ROSHAN

body2021
JUDGMENT Deepak Roshan, J. - Heard learned counsel for the parties through V.C. 2. The instant writ application has been preferred by the petitioner praying therein for quashing the charge-sheet issued under letter No.548 dated 18.02.2010 (Annexure-9) and also for quashing the letter No.1159 dated 03.05.2012; whereby the petitioner has been issued second show-cause notice as regards the report of the enquiry officer finding that the appointment of the petitioner was made irregular. Petitioner has also challenged the enquiry report dated 21.06.211 (Annexure11). 3. Mr. Rajeeva Sharma, learned senior counsel for the petitioner submits that now since the petitioner has retired on 31.01.2018; as such the department cannot pursue with the departmental proceeding, inasmuch as, there is no charge of misconduct. He further submits that for any action to be taken after retirement there are provisions under Bihar Pension Rule and Rule 43(b) clearly stipulates that if there is misconduct or pecuniary loss to the government then only the said provision can be invoked. In nutshell, Mr. Sharma argued that after retirement the respondent-State cannot continue with the departmental proceeding. He lastly submits that the departmental proceeding which was initiated and the second show-cause which was issued was stayed by this Court vide order dated 28.08.2012 and the respondents were restrained from taking any final decision on the departmental proceeding and now since the petitioner has retired no action can be taken against this petitioner. 4. Mr. Shrey Mishra, learned counsel for the respondent-State submits that the petitioner was illegally appointed without proper procedure of appointment in the year 1985 on the post of Assistant Teacher in Rajkiya Kannya Madhya Vidyalaya, Sahibganj by the then Inspector of School-cum-Deputy Director of Education. He further submits that there was no advertisement published by the department. Neither any competent appointment committee has recommended the petitioner for appointment nor was any interview held for the same. As a matter of fact, the issue with regard to illegal appointments was further investigated by the C.B.I and the then District Education Officer enquired the matter of appointed teacher of Rajkiya Kannya Madhya Vidyalaya and found irregularity and illegality in the appointment. Further on perusal of the show-cause reply of the writ petitioner, the District Education Officer, Sahibganj found that the petitioner has been illegally appointed without following the departmental procedure of appointment and has also been sanctioned first time bound promotion. Mr. Further on perusal of the show-cause reply of the writ petitioner, the District Education Officer, Sahibganj found that the petitioner has been illegally appointed without following the departmental procedure of appointment and has also been sanctioned first time bound promotion. Mr. Mishra further submits that in her B.Ed certificate; no name of college was mentioned, meaning thereby to say it was not known from which college the petitioner has completed B.Ed degree and due to all these facts, charge-sheet was issued and the departmental proceeding was conducted and when the second show-cause notice was issued to the petitioner before imposing the order of punishment; this petitioner challenged the second show cause notice along with the enquiry report etc. which was since stayed by this Court, no final order can be passed. He lastly submits that other similarly situated teachers who were also illegally appointed have been terminated and the petitioner could not take benefit of stay order by this Court and the instant writ application deserves to be dismissed as the initial appointment itself is illegal without following proper procedure of appointment. 5. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits, it appears that the appointment of this petitioner was illegal, inasmuch as, no proper procedure for appointment was followed. No advertisement was published and the petitioner was appointed by the then School Inspector-cum- Deputy Director of Education. From the counter affidavit it further appears that the B.Ed certificate which was submitted by this petitioner, the name of the college has not been mentioned. It further transpires that there was also a C.B.I enquiry in the light of mass illegal appointments. All these facts which have been mentioned in the counter affidavit have not been rebutted by the petitioner by way of any rejoinder. At this stage it is pertinent to mention here that the only argument advanced by the learned senior counsel for the petitioner is that since a development took place and the petitioner has already retired on 31.01.2018; the department is prevented from taking any further action. 6. With regards to illegal appointment the Hon'ble Apex Court in the case of State of Orissa and Ors. Vs. Mamata Mohanty, (2011) 3 SCC 436 at paragraph No.37 and 38 has laid down the law as under:- 37. 6. With regards to illegal appointment the Hon'ble Apex Court in the case of State of Orissa and Ors. Vs. Mamata Mohanty, (2011) 3 SCC 436 at paragraph No.37 and 38 has laid down the law as under:- 37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. 38. The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour. 7. The issue is now no more res-integra that if the initial appointment was not made by following due process of selection as envisaged by the relevant rules, the appointment itself will be illegal and the averments made in the counter affidavit has not been controverted by the learned counsel for the petitioner either in the argument or by filing any rejoinder that there was no open advertisement and no due process of selection was followed as envisaged in the relevant Rules. 8. Since stay was granted in favour of the petitioner as such no final order could be passed by the department in the departmental proceedings. By going through the order dated 28.08.2012 it transpires that no specific reasons has been mentioned and this Court has simply directed that counter affidavit shall be filed within four weeks and in the meantime no final decision shall be taken against the petitioner. By going through the order dated 28.08.2012 it transpires that no specific reasons has been mentioned and this Court has simply directed that counter affidavit shall be filed within four weeks and in the meantime no final decision shall be taken against the petitioner. From the entire order-sheet it transpires that no endeavor was taken by either of the parties to get the case heard on merits and it further transpires that after the order dated 28.08.2012 the case was listed for hearing eight times and every time the case was adjourned at the request of the parties. 9. Now coming to the argument advanced by the learned senior counsel that no order can be passed since the petitioner has already retired in the year 2018; it is clarified that the departmental proceeding against this petitioner was pending due to the order of stay passed by this Court and it is not a case that any fresh departmental proceeding is to be initiated against this petitioner after her retirement; as such, the department shall proceed in the pending departmental proceeding in accordance with law. 10. In this regard reference may be made to the decision of the Hon'ble Apex Court in the case of Takhatray Shivadattaray Mandad Vs. State of Gujrat, (1989) Supp2 SCC 110. In the said case the question of departmental enquiry instituted before retirement and its continuation after the age of superannuation was considered. It was held that proceedings could be continued under the relevant rules, and as provided, the order could have been passed with respect to pension and gratuity. The proceedings did not become infructuous. Recently, the Hon'ble Apex Court in the case of Chairman-cum-Managing Director, Mahanadi Coalfields Limited Vs. Rebindranath Choubey,2020 SCConlineSC 470 has held that the disciplinary authority has powers to impose penalty of dismissal upon the delinquent even after his attaining the age of superannuation. Relevant portion of Para-70 & 72 are quoted herein below:- 70. Several service benefits would depend upon the outcome of the inquiry, such as concerning the period during which inquiry remained pending. It would be against the public policy to permit an employee to go scot-free after collecting various service benefits to which he would not be entitled, and the event of superannuation cannot come to his rescue and would amount to condonation of guilt. It would be against the public policy to permit an employee to go scot-free after collecting various service benefits to which he would not be entitled, and the event of superannuation cannot come to his rescue and would amount to condonation of guilt. Because of the legal fiction provided under the rules, it can be completed in the same manner as if the employee had remained in service after superannuation, and appropriate punishment can be imposed. Various provisions of the Gratuity Act discussed above do not come in the way of departmental inquiry and as provided in Section 4(6) and Rule 34.3 in case of dismissal gratuity can be forfeited wholly or partially, and the loss can also be recovered. An inquiry can be continued as provided under the relevant service rules as it is not provided in the Payment of Gratuity Act, 1972 that inquiry shall come to an end as soon as the employee attains the age of superannuation. We reiterate that the Act does not deal with the matter of disciplinary inquiry, it contemplates recovery from or forfeiture of gratuity wholly or partially as per misconduct committed and does not deal with punishments to be imposed and does not supersede the Rules 34.2 and 34.3 of the CDA Rules. The mandate of Section 4(6) of recovery of loss provided under Section 4(6)(a) and forfeiture of gratuity wholly or partially under Section 4(6)(b) is furthered by the Rules 34.2 and 34.3. If there cannot be any dismissal after superannuation, intendment of the provisions of Section 4(6) would be defeated. The provisions of section 4(1) and 4(6) of Payment of Gratuity Act, 1972 have to be given purposive interpretation, and no way interdict holding of the departmental inquiry and punishment to be imposed is not the subject matter dealt with under the Act. 72. The provisions of section 4(1) and 4(6) of Payment of Gratuity Act, 1972 have to be given purposive interpretation, and no way interdict holding of the departmental inquiry and punishment to be imposed is not the subject matter dealt with under the Act. 72. In view of the above and for the reasons stated above and in view of the decision of three Judge Bench of this Court in Ram Lal Bhaskar (supra) and our conclusions as above, it is observed and held that (1) the appellant - employer has a right to withhold the gratuity during the pendency of the disciplinary proceedings, and (2) the disciplinary authority has powers to impose the penalty of dismissal/major penalty upon the respondent even after his attaining the age of superannuation, as the disciplinary proceedings were initiated while the employee was in service. 11. In view of the aforesaid discussions and judicial pronouncements, this Court is of the opinion that the stay order dated 28.08.2012 deserves to be vacated. 12. Consequently, the instant writ application, is hereby, dismissed and the matter is remitted back to the disciplinary authority with a direction to proceed in the matter in accordance with law by giving notice to the petitioner annexing the copy of second show-cause notice and after getting the reply, if any, pass appropriate order within a period of four months from the date of receipt / production of a copy of this order. It goes without saying that the petitioner shall fully co-operate in the pending departmental proceeding.