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2021 DIGILAW 62 (JHR)

Deepak Kumar Mahto v. State of Jharkhand

2021-01-15

DEEPAK ROSHAN

body2021
JUDGMENT : Heard Mr. Saurabh Shekhar, learned counsel for the petitioner and Mr. Rahul Saboo, learned S.C-I for the respondents-State through V.C. 2. The instant writ application was initially preferred by the petitioner praying for a direction upon the respondent Authorities to forthwith release the entire arrears of salary and other dues of the petitioner for the period from March, 1997 till 7.9.2001 along with penal interest. During pendency of this application an interlocutory application being I.A. No.3441 of 2018 has been filed before this Court for amendment in paragraph No.1 as well as prayer portion of the writ application praying for quashing the order as contained in Memo No.2084 dated 22.11.2008, whereby the claim of the petitioner for payment of salary from March, 1997 till 7.9.2001 has been denied and also for quashing the order as contained in Memo No.261 dated 05.03.2018, whereby the aforesaid period has been treated as “Break in Service” and not to be counted for pensionary benefits; and vide order dated 13.10.2020 of this Court, the I.A. No.3441 of 2018 was allowed and the same has been treated as part of the main writ application. 3. Brief facts of the case are that the petitioner joined his service on 21.10.1989. In the year 1998, vide order dated 09.11.1998, the petitioner was transferred and posted as Touring Veterinary Officer, at Jamshedpur. Pursuant to that the petitioner gave his joining on 14.11.1998 but the charge of the said post was not handed over to him for which he represented the authorities by filing several representations (Annexure-3 Series). However, when all attempts failed; he submitted his resignation on 07.09.2001 which was accepted after three years w.e.f. 07.09.2001. 4. Mr. Saurabh Shekhar, learned counsel for the petitioner submits that the two orders being order dated 22.11.2008 and 05.03.2018 have been passed by the respondent No.2 behind the back of the petitioner and without following the principle of natural justice. He further submits that the petitioner resigned from service on 07.09.2001 which was accepted in the year, 2004; as such, there was cessation of contract between the employer and employee, and as such, the action of the respondents in passing the two impugned orders are not sustainable in the eye of law. He further submits that at the time of resignation, the petitioner was given other benefits and no question was raised with respect to break in service. He further submits that at the time of resignation, the petitioner was given other benefits and no question was raised with respect to break in service. However, the petitioner filed several representations for payment of arrears of salary for the relevant period. 5. Learned counsel contended that on the one hand no principle of natural justice has been followed by respondents in passing the impugned orders and on the other hand the impugned order is bad in law, inasmuch as, the same has been passed after the resignation was accepted; as such, both impugned orders are liable to be quashed. 6. Mr. Rahul Saboo, learned counsel for the respondents-State submits that the salary for the period would not be admissible to the petitioner, inasmuch as, the relevant period has been treated as unauthorized absence and further the final order has been passed in the year, 2018, whereby the said period of unauthorized absence has been treated as break in service; as such, the petitioner would not be entitled for any pension. However, Mr. Saboo could not demonstrate before this Court that any notice was ever issued to the petitioner prior to his resignation nor he is able to justify the delay in passing the order dated 05.03.2018. 7. Having heard learned counsel for the parties and after going through the documents available on record and averments made in the respective affidavits it appears that the claim of the petitioner with respect to payment of salary from March, 1997 till 07.09.2001 has been denied by treating this period as unauthorized absence and further the order as contained in Memo No.261 dated 05.03.2018, the relevant period of unauthorized absence has been treated as break in service. 8. From the impugned order dated 22.11.2008 and order dated 05.03.2018; it transpires that it has been passed without giving any notice to the petitioner and that too after his resignation was accepted and there was cessation of contract between the employer and employee. The action of the Respondents gives the smell of mala-fide, inasmuch as, it appears that the orders have been passed just to deny the salary by treating this period as “unauthorized leave” and further treating this period as “break in service”; to deny the pensionary benefits to the petitioner. The action of the Respondents gives the smell of mala-fide, inasmuch as, it appears that the orders have been passed just to deny the salary by treating this period as “unauthorized leave” and further treating this period as “break in service”; to deny the pensionary benefits to the petitioner. No reason has been assigned by the Respondents that why when the order treating the relevant period as “unauthorized leave” was taken in the year 2008; the Respondents took ten years in taking decision for treating this period as “break in service” in 2018. 9. Be that as it may. Now it is a settled principle of law that no order can be passed behind the back of the petitioner. Further, when the respondents have already accepted the resignation of the petitioner without any objection the employer-employee relationship gets severed and as such, no action could have been taken or no order could have been passed against this petitioner. 10. The issue is now no more res integra that for taking any action against the delinquent there has to be force of law. From entire documents available on record it appears that the resignation was accepted without any objection after 4 years of resignation. It further transpires that after filing of this writ application the respondents came with an order dated 22.11.2008 treating the period as “unauthorized absence”. So it could be easily inferred that the same has been passed in haste only to deny the benefit to the petitioner. At this stage, it is pertinent to mention here that the respondents have not come forward with any allegation that intentionally the petitioner was absent; rather the documents transpires that the petitioner was waiting for posting and was always available for work but he was not allowed to work for no fault of his own. From the impugned order dated 05.03.2018, it could be inferred that the same has been passed just to deny the benefit of pension. From bare reading of the order dated 05.03.2018, it appears that it has been passed in haste. In either of the case, admittedly; no notice was given to the petitioner and both the orders have been passed behind the back of the petitioner, which is dehors the principle of natural justice. 11. From bare reading of the order dated 05.03.2018, it appears that it has been passed in haste. In either of the case, admittedly; no notice was given to the petitioner and both the orders have been passed behind the back of the petitioner, which is dehors the principle of natural justice. 11. In view of the aforesaid findings, the impugned orders as contained in Memo No.2084 dated 22.11.2008 annexed as Annexure- I A/1 and also the order as contained in Memo No.261 dated 05.03.2018 annexed as Annexure- IA/2 deserve to be quashed. Accordingly, both the orders are quashed and set-aside. Respondents are directed to pass necessary order with respect to payment of salary during the relevant period i.e. from March, 1997 till 7.9.2001 after verification of documents and claim of the petitioner. The Respondents are further directed to pass an order with regard to settlement of pension etc. for which the petitioner has been denied due to the impugned orders. 12. It is made clear that since the matter is very old; the entire exercise shall be taken by the respondents-authorities within a period of 4 months from the date of receipt of a copy of this order. The respondents would be at liberty to ask for any document or hear the petitioner, if so advised, for passing the final order with respect to consequential benefit. 13. With the aforesaid terms, the instant writ application stands allowed.