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2022 DIGILAW 106 (JHR)

Subodh Kumar Hembram v. State of Jharkhand

2022-01-28

DEEPAK ROSHAN

body2022
JUDGMENT : Heard learned counsel for the parties. 2. The instant writ application was initially preferred by the petitioner praying therein for a direction upon the respondent-authorities to accept the joining of the petitioner as an Assistant Teacher and to pay salary with effect from the date the petitioner gave his joining after recovery from his ailment i.e. on 12.12.2005. During pendency of the case, vide letter no.2184 dated 09.09.2021 (Annexure-H to the supplementary counter affidavit dated 16.09.2021), services of the petitioner has been terminated which has been challenged by way of interlocutory application being I.A. No. 5533 of 2021, which was allowed by this Court. 3. The facts relevant for disposal of the instant writ application is that pursuant to the letter dated 21.09.1994, the petitioner was appointed as an untrained teacher in the pay scale of Rs.975-1540/-, thereafter he joined the service and started doing his work at Primary School Kesarda. Subsequently, in the year 1999, he fallen severely ill due to which he applied for leave. Thereafter, the petitioner was diagnosed with severe “Lumbago Sciatic Syndrome” for which he was regularly treated by a medical expert and after he was declared fit in the year 2005, he gave his joining annexing all the original medical documents before the Block Education Extension Officer (BEEO in short) on 12.12.2005. Without much delay, the BEEO, Baharagora recommended for the acceptance of joining of the petitioner before the District Superintendent of Education vide its letter No. 54 dated 04.03.2006, however the petitioner did not receive any official communication for joining and forced with this situation and after filing several representations and running from pillar to post; knocked the door of this Court by filing the instant writ application. 4. A counter affidavit dated 05.10.2012 has been filed by the respondent No.3–District Superintendent of Education wherein it was admitted that the petitioner gave his joining letter before the BEEO, Baharagora on 03.03.2006 and it has been stated that the Director Primary Education, Ranchi has directed the respondent No.3 to place the matter before the District Education Establishment Committee, East Singhbhum, Jamshedpur vide its letter dated 04.05.2011 and pursuant to that a show cause notice was issued to the petitioner on 17.10.2011 and a second show cause notice was also issued on 17.08.2012. It has been further stated in the said counter affidavit that on receipt of reply from the petitioner the entire matter will be placed before the District Education Establishment Committee and as per the decision of the Committee, proper action will be taken in accordance with law. 5. A rejoinder to that effect was also filed wherein it has been specifically stated that for no fault of this petitioner the respondents are sitting tight over the matter and further the statement of issuance of show cause notice has been denied by the petitioner. A supplementary affidavit has also been filed by the petitioner wherein he has again annexed medical certificate and work description from the school concerned, medical fitness certificate etc. In the said supplementary affidavit dated 02.02.2018 one letter no.232 dated 29th November, 2008 issued by the BEEO, Baharagora to District Education Officer East Singhbhum, Jamshedpur received on 30.11.2008 has also been annexed which clearly transpires that the internal information was required by the District Education Officer and Block Education Extension Officer, after enquiry, submitted its report informing that the petitioner went on leave 23.10.1999 and thereafter he continued to inform the Office vide several representations about his continued ailment and finally he gave his joining on 03.03.2006. 6. When nothing was done; during pendency of the case, this Court vide its order dated 29.07.2021 directed the State counsel to seek up-to-date instruction on the decision of District Education Establishment Committee before the next date of hearing. Pursuant thereto; that supplementary counter affidavit has been filed on 18.08.2021 wherein it has been stated that the answering respondent again sent a letter to the petitioner vide letter No.1906 dated 06.08.2021 and directed him to submit his reply by 13.08.2021 and it has been further stated in the said supplementary counter affidavit that no reply has been received. At the end of the day, the service of the petitioner has been terminated vide letter no.2184 dated 09.09.2021(Annexure-H to the supplementary counter affidavit dated 16.09.2021) wherein at paragraph No.10 it has been stated that the petitioner submitted his reply wherein he has admitted that he was absent from his service for more than six years and thus the impugned order has been passed for remaining absent for continuous six years. It has been further stated at paragraph No.11 of the said supplementary counter affidavit that due to the petitioner’s absence from duty for more than six years and as per the directions issued by the Director, Primary Education, Government of Jharkhand, the services of the petitioner have been terminated under the provisions of Rule 76 of the Jharkhand Service Code. For brevity, paragraph Nos.8, 9, 10 & 11 of the supplementary counter affidavit dated 16.09.2021 is reproduced hereunder:- “8. That it is humbly stated and submitted that, as already explained in the supplementary counter affidavit filed by the Answering respondent, subsequent to the order dated 29.7.2021 passed by this Hon’ble Court, the Answering Respondent reviewed the matter and it was found that there were no reply of the petitioner available in the office of the Answering Respondent against the second show cause issued vide letter No.1899 dated 17.08.2012 (Annexure “D” to the counter affidavit filed by the Answering Respondent) and that in view of the above stated situation the Answering respondent sent letter no.1906 dated 06.08.2021 (Annexure “E” to the supplementary counter affidavit filed by the Answering Respondent) the petitioner, informing him of the current status and directing him to submit his reply by 13.08.2021 as a last chance, and in case of failure of his part to submit such reply, the matter would be decided ex-parte. 9. That it is humbly stated that the Answering respondent sent another notice dated 17.08.2021 bearing letter no.1987 to the petitioner. The said notice was served to the petitioner through the Block Education Extension Officer, and vide the said notice, the petitioner was directed to submit his reply by 21.08.2021 as a last chance. It was also made clear that in case of failure on the part of the petitioner to submit his reply by 21.08.2021 the matter would be decided ex-parte. 10.That it is humbly stated and submitted that the petitioner submitted his reply dated 19.08.2021, vide which Reply he has submitted that he had been absent from his service for more than six years. 11. 10.That it is humbly stated and submitted that the petitioner submitted his reply dated 19.08.2021, vide which Reply he has submitted that he had been absent from his service for more than six years. 11. That it is humbly stated and submitted that the case of the petitioner was put in front of the District Education Establishment committee in its meetings dated 17.08.2021 and 07.09.2021 wherein it was unanimously decided by the committee that due to the petitioners absence from duty for more than six years and as per the directions issued by the Director, Primary Education, Government of Jharkhand, the services of the petitioner have been terminated under the provisions of Rule 76 of the Jharkhand Service Code. The order of termination of the services of the petitioner has been issued vide letter no.2184 dated 09.09.2021 by the Office of the Answering respondent.” 7. Mr. Amit Kumar Das, learned counsel for the petitioner submits that in the year 1999 petitioner was diagnosed with severe Lumbago Sciatic Syndrome and in December, 2005 he was declared fit and a fitness certificate was also given to him and pursuant to that on 12.12.2005 petitioner gave his joining annexing all the original medical documents. Thereafter, BEEO, Baharagora recommended the case of the petitioner to the District Superintendent of Education, East Singhbhum vide its letter dated 04.03.2006. The said letter clearly transpires that the petitioner regularly informed the concerned Block Education Extension Officer (BEEO) about his prolong illness. Learned counsel further draws attention of this Court towards the enquiry report (Annexure-7) of supplementary affidavit dated 02.02.2018 and submits that in the year 2008 itself the District Superintendent of Education made an enquiry through BEEO about the petitioner’s case and a report was duly sent by the BEEO vide its letter No.232 dated 29th November, 2008 which was received by the Office of District Education Officer on 30.11.2008. The said report clearly transpires that the petitioner was regularly informing about his prolong illness and he went on leave after due permission. Mr. Das further contended that when the proper enquiry report was sent/received in the year November, 2008 itself there was no reason for issuance of any show cause notice with regard to joining of the petitioner and that too after almost three years in 2011. Mr. Das further contended that when the proper enquiry report was sent/received in the year November, 2008 itself there was no reason for issuance of any show cause notice with regard to joining of the petitioner and that too after almost three years in 2011. He further submits that even assuming but not admitting about first two show cause notices which were alleged to have been issued against this petitioner in the year 2011-2012; what was the reason that the respondents sat over the matter for years together and finally after direction of this Court all of a sudden sent another show cause notice in the year 2021 ultimately terminated the service of this petitioner ignoring all the facts and internal enquiry report as well as the genuine ground of absence. He lastly submits that even under Rule 76 (b) of Jharkhand Service Code a government employee has to be terminated after following the procedure laid down in the Civil Services (Classification, Control and Appeal) Rules, 1930 and under Bihar and Orissa Subordinate Services Discipline and Appeal Rules, 1935 and in the instant case, no disciplinary proceeding was ever initiated or completed and the petitioner was not being heard even for a single time. This is against the settled principle of law and Rule 76 of the code has not been followed at all, inasmuch as, as per the amended rule a proper disciplinary proceeding has to be initiated before taking any action. Thus, the impugned order is fit to be quashed and set aside and the respondents be directed to allow the petitioner to join the service. 8. Mr. Raunak Sahay, A.C to G.P. V, reiterated the stand taken by the respondents in the respective counter affidavits and submits that there is no error committed by the respondent-authorities, inasmuch as, the petitioner was absent for more than six years from the duty and as per Rule 76(b) of the Jharkhand Service Code, 2001 a government employee shall be removed from service if he/she is on leave for a continuous period of five years as in this case and due to the petitioner’s absence from duty for more than six years and as per the directions issued by the Director, Primary Education, Government of Jharkhand, the services of the petitioner have been terminated under the provisions of Rule 76(b) of the Jharkhand Service Code. As such no interference is required in the impugned order. Learned counsel relied upon the judgment delivered in the case of Ramakant Dubey Vs. State of Jharkhand & Ors. reported in 2013 (2) JCR 348 (Jhr.) and submits that Rule 76(b) is applicable in cases where a Government employee/servant does not resume duty after remaining on leave for a continues period of 5 years. 9. Having heard learned counsel for the parties and after going through the documents available on record and the averments made in the respective affidavits it appears that pursuant to the appointment letter dated 21.09.1994, the petitioner joined as untrained teacher at Primary School, Kesarda and before taking medical leave he had duly informed the respondent authorities about his illness vide letter dated 23.10.1999 and only after that he had availed medical leave. Throughout the period of his leave he kept updating the concerned B.E.E.O regarding his illness. From perusal of the letter dated 04.03.2006 (part of Annexure-10 Series) would show that the Block Education Extension Officer was aware about his illness throughout the period of leave as the petitioner regularly informed him. Hence, he requested the District Education Officer for necessary action; however, the respondent no.3 sat tight over the matter. The petitioner kept making representation for his joining but nothing had happened. The petitioner, in order to find out the reason for delay in joining, even applied under Right to Information Act; and he was informed vide letter No.2668 dated 28.11.2007 (Annexure 5/1) that though his services has not ended, he could not be given joining as the original medical certificate was not available. This was contrary to the facts, as the petitioner had already submitted his medical certificates at the time of joining before the concerned BEEO. The BEEO vide its letter No.232 dated 29.11.2008 also submitted a report that the petitioner had given his medical documents at the time of applying for joining (Annexure-7). In spite of submission of all the documents, the petitioner was made to run from pillar to post and his joining was not being accepted. The petitioner again made a representation dated 22.04.2010 (Annexure-4) requesting the respondent authorities to allow him to join his service. Finally, as the respondents sat tight over the matter, the petitioner was constrained to file the present writ application before this Court. The petitioner again made a representation dated 22.04.2010 (Annexure-4) requesting the respondent authorities to allow him to join his service. Finally, as the respondents sat tight over the matter, the petitioner was constrained to file the present writ application before this Court. Only after the writ was filed; the respondents woke up from their deep slumber and filed affidavit that they have decided to proceed against the petitioner under Rule 76 of the Jharkhand Service Code and show-cause notices were claimed to have been issued against the petitioner without making any disciplinary proceeding or preliminary inquiry. It is claimed by the petitioner that the said show cause notices were never served upon the petitioner. At this stage it is pertinent to mention here that even accepting the stand of the State that show-cause notices were issued against the petitioner; then who stopped them from moving a step further and start a disciplinary proceeding. But the fact remains that the respondents again sat over the matter for almost ten years and only when this Court took up this case on 29.07.2021, the respondent again issued a show cause notice against the petitioner and finally a show cause dated 17.08.21 was served upon the petitioner on 19.08.21. The petitioner immediately replied to it stating that due to medical reasons he was forced to take leave and requested the respondents to allow him to join the services. But the respondents, vide memo dated 09.09.21 (Annexure-12), dismissed the petitioner from his service. 10. In view of the aforesaid discussions, the instant writ application requires interference for following reasons:- (i) Rule 76 (b) of Jharkhand Service Code clearly stipulates that a government employee can be removed from service, if he remains absent unauthorized for more than five years after following procedure laid down in the Civil Services (Classification, Control and Appeal) Rules, 1930 and under Bihar and Orissa Subordinate Services Discipline and Appeal Rules, 1935. In the case of “Sidhnath Upadhya Vs. State of Bihar” reported in 1991 (2) PLJR 148 , while considering the judgment passed in the case of “Sobhana Das Gupta Vs. The State of Bihar” reported in 1974 PLJR 382 , the impugned order of dismissal from service was set aside as no procedure has been followed before passing the order of dismissal. State of Bihar” reported in 1991 (2) PLJR 148 , while considering the judgment passed in the case of “Sobhana Das Gupta Vs. The State of Bihar” reported in 1974 PLJR 382 , the impugned order of dismissal from service was set aside as no procedure has been followed before passing the order of dismissal. The learned counsel for the petitioner therefore has tried to impress upon the Court that necessary procedure prior to termination from service has to be followed which in effect means that a departmental proceeding has to be initiated and without resorting to a departmental proceeding, the service of the petitioner has been terminated. In the case of “Sobhana Das Gupta Vs. State of Bihar (supra) which struck down Rule 76 of the Bihar Service Code as it then was, leads to an ultimate conclusion which can be arrived at is that, there is no question of automatic dismissal or deemed dismissal or removal of the petitioner from the service of the State Government. In such circumstances, there is no option left for the authorities even in case of absence without leave for a period of more than 5 years, but to hold a departmental proceeding and consequent thereto arrive at a substantive finding. This having not been done by the respondent authorities the same is in violation of the principle of natural justice which cannot be allowed to be sustained. Admittedly; in the instant case no departmental proceeding has ever been initiated against this petitioner nor the petitioner was given any opportunity of hearing, thus the impugned order is bad in law and fit to be quashed on this score alone. (ii) From record it further transpires that vide letter no.54 dated 4.3.2006 (Annexure-10 series), the Block Education Extension Officer, Baharagora while forwarding the acceptance/joining of the petitioner before District Superintendent of Education admits that the petitioner kept the respondents update regarding his health throughout his leave period and even after that. It further transpires from the record that an enquiry was directed to be conducted through Block Education Extension Officer, Baharagora, who conducted an enquiry and submitted its report informing that the petitioner after medical leave gave his joining on 03.03.2006 along with medical certificates and work description from his school concerned (Annexure-7 to the supplementary affidavit dated 2.2.2018). It further transpires from the record that an enquiry was directed to be conducted through Block Education Extension Officer, Baharagora, who conducted an enquiry and submitted its report informing that the petitioner after medical leave gave his joining on 03.03.2006 along with medical certificates and work description from his school concerned (Annexure-7 to the supplementary affidavit dated 2.2.2018). This Court fails to understand that when internal enquiry report was submitted by the concerned BEEO way back in November, 2008; there was no reason to delay the matter for years together and only after a direction of this Court to take update status of the case; issued show-cause notice and terminated the petitioner under Rule 76 (b) of Jharkhand Service Code. (iii) Even assuming for a moment that after issuance of two show cause notices the petitioner did not reply; then what was the reason for sitting tight over the matter and even not informing this Court about the development and it is only when the case was taken up for hearing before this Court, a termination order has been issued in a haphazard manner without following due process of law. It is true that concept of delay and laches operates against the litigant for initiation of any action for enforcement of his/her fundamental rights. It is also true that there is no rider or time limit in Rule 76(b) of the Jharkhand Service Code with respect to taking action against the government employee; however, the Respondents State cannot be left scot free for the delay committed by them in taking action. The period of almost fifteen years in terminating the petitioner from the date of his joining; without any explanation as to what prevented them to start/conclude the proceedings under Rule 76 (b) of the Code when the internal enquiry report was submitted by the concerned BEEO in the year 2008 itself. This clearly goes to show that terminating the petitioner under the Rule is arbitrary exercise of power and thus cannot sustain in the eye of law. The Indian judicial system follows rules of equity in the court of justice. The doctrine of ‘Delay or Laches’ is thus an equitable doctrine. In the case of G.C.Gupta & Ors. This clearly goes to show that terminating the petitioner under the Rule is arbitrary exercise of power and thus cannot sustain in the eye of law. The Indian judicial system follows rules of equity in the court of justice. The doctrine of ‘Delay or Laches’ is thus an equitable doctrine. In the case of G.C.Gupta & Ors. v N.K.Pandey & Others reported in (1988)1 SCC 316 , the Hon’ble Supreme court has held that inordinate delay is not merely a factor for the court to refuse appropriate relief but also a relevant consideration it be so minded not to unsettle settled things. Here is the case where the respondents were at responsibility to start the proceeding at least after the recommendation of the Director Primary Education, Jharkhand’s letter no.1171 dated 04.05.2011; however, they failed to act upon it. This is a fit case where the impugned order should be quashed and set aside on the ground of delay committed by the respondent State, inasmuch as, the petitioner gave his joining in the year 2006 and thereafter the internal enquiry report was submitted in his favour in 2008; even the second show cause notice was issued in the year 2011 but in the year 2021, the petitioner has been terminated giving reference of the recommendation of the Director Primary Education, Jharkhand letter no.1171 dated 04.05.2011, and that too without following due process of law under Rule 76(b) of the code. Further, no explanation has been given by the respondent for such a huge delay and laches on their part. The respondents cannot take benefits of its own wrong doing that petitioner did not reply to the show-cause notice. (iv) The dismissal order is also non-speaking order. The respondents had not even considered the extraordinary circumstances that forced the petitioner to take leave. 11. The judgment relied upon by the counsel for the respondent-State passed by the Coordinate Bench of this Court reported in 2013(2) JCR 348 (Jhar.) is not applicable in the instant case, inasmuch as, in the said case the petitioner did not give any information of his absence from 12.2.1985 to 2004 i.e. about 19 years. 11. The judgment relied upon by the counsel for the respondent-State passed by the Coordinate Bench of this Court reported in 2013(2) JCR 348 (Jhar.) is not applicable in the instant case, inasmuch as, in the said case the petitioner did not give any information of his absence from 12.2.1985 to 2004 i.e. about 19 years. Here it is an admitted case that the petitioner went on leave after informing the department about his illness and kept on informing about his prolong illness which has also been admitted in the letter written by the BEEO to the District Education Officer. 12. In view of the aforesaid discussions and the conduct of the respondents which has been discussed in detail herein above; remanding this case back to the respondents will only be mere formalities, inasmuch as, the demeanor of the respondents is very clear as the respondents have made up their mind to terminate the service of the petitioner without going into the facts and circumstances of the case. 13. As a result, the instant writ application, is hereby, allowed. The impugned order as contained in letter no.2184 dated 09.09.2021 (Annexure-H to the supplementary counter affidavit dated 16.09.2021), is hereby, quashed and set aside and the respondents are directed to reinstate the petitioner forthwith from the date of receipt/production of a copy of this order. The respondents are also directed to pay 50% back wages from the period the petitioner gave his joining in the year 2006 till the date of reinstatement for the obvious reason that the petitioner was never at fault for not doing his job and it was only and only the respondents who prevented the petitioner from doing his occupation. Necessary payment order in favour of the petitioner shall be issued within a period of three months from today. 14. With the aforesaid observations and directions this writ application stands allowed.