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2024 DIGILAW 589 (JHR)

Manju Sharma v. State of Jharkhand

2024-06-19

S.N.PATHAK

body2024
JUDGMENT : S.N.PATHAK, J. Heard the parties. 2. The original petitioner has approached this Court with a prayer for quashing the memo No. 190 dated 08.11.2019 issued by Civil Surgeon-cum-Chief Medical Officer, Bokaro, whereby he has rejected the claim of petitioner for his retiral benefits. Further prayer has been made for quashing the reasoned order as contained in memo No. 15/J-07-04/2015-513 (26) dated 09.03.2016 passed by respondent No. 3 whereby he has held the appointment of original petitioner as irregular and illegal and as such, the benefits of promotion given to him is not as per law and as such, he is not entitled for retiral benefits as well as arrears of salary and other allowances. 3. Shorn of unnecessary details, the petitioner was appointed as Clerk in the office of Civil Surgeon-cum-Chief Medical Officer, Dhanbad vide memo No. 1312 dated 28.12.1982 on temporary basis for three months. Thereafter, his service was extended for further one month purely on temporary basis vide order contained in memo No. 477 dated 24.03.1983. It is the further case of petitioner that while continuing to discharge his duties, an advertisement was floated in the daily newspaper namely, ‘Awaaz’ on 22.02.1983 under the signature of Civil Surgeon-cum-Chief Medical Officer, Dhanbad for appointment on various posts including the post of Clerk on which the petitioner was working though on temporary basis. In pursuance of the aforesaid advertisement, the petitioner submitted his application for appointment to the post of Assistant/Clerk and subsequently, the respondent issued interview letter to the petitioner on 02.04.1983 fixing the date of interview on 12.04.1983. Thereafter, the petitioner appeared before the Board for interview along with other candidates and after having found suitable, the respondents issued office order No. 589 dated 19.04.1983, whereby his services was extended until further orders. Since thereafter, the petitioner has been discharging his duties as a Clerk and had been getting salary regularly. It is the case of petitioner that while discharging his duties, the services of petitioner was made permanent and he was given promotion from time to time. The petitioner was promoted to the Junior Selection Grade w.e.f. 30.12.1990 vide office memo No. 2998 dated 05.10.1991 and subsequently, he was given selection grade vide office order No. 1170 dated 21.12.1998. 4. It is the case of petitioner that while discharging his duties, the services of petitioner was made permanent and he was given promotion from time to time. The petitioner was promoted to the Junior Selection Grade w.e.f. 30.12.1990 vide office memo No. 2998 dated 05.10.1991 and subsequently, he was given selection grade vide office order No. 1170 dated 21.12.1998. 4. It is the further case of petitioner that all of a sudden, vide letter No. 1381 (22) dated 06.10.1998, purported to have been issued from the office of the Director-in-Chief, Health Services, Govt. of Bihar, Patna was received in the office of the Civil Surgeon-cum-Chief Medical Officer, Bokaro wherein a direction was issued to make available all the relevant documents regarding the appointment of petitioner and thereafter, a second letter was also issued. Upon receipt of the said letters, when the Civil Surgeon-cum-Chief Medical Officer, Bokaro enquired the matters from the concerned Department, then the Director-in-Chief, Health Services, Bihar Patna vide his letter dated 27.02.1999 has informed that the aforesaid letters are forged and has not been issued from his office. It is further case of petitioner that the Civil Surgeon-cum-Chief Medical Officer, Bokaro has written letter dated 25.03.2000 to the Civil Surgeon-cum-Chief Medical Officer, Dhanbad with regard to confirmation of appointment of petitioner. In the meantime, the Civil Surgeon-cum-Chief Medical Officer, Bokaro being confirmed with regard to genuine appointment of petitioner, directed the Medical Officer Incharge, Leprosy Control Unit, Chas vide its letter as contained in memo No. 323 dated 28.03.2000 to release the salary of the petitioner. 5. It is further case of original petitioner that while in service, the service book of petitioner was regularly maintained by the respondents wherein all the entries regarding appointment and promotions had been made. Though, no departmental proceeding has been initiated against the petitioner but in spite of the same, the salary of the petitioner has been withheld from March, 2000 without any rhyme or reason. The original petitioner made several representation before respondent-authorities for releasing the salary which has been withheld since March, 2000 but no heed was paid to the same. Having left with no other option, the original petitioner approached this Court in W.P.(S). The original petitioner made several representation before respondent-authorities for releasing the salary which has been withheld since March, 2000 but no heed was paid to the same. Having left with no other option, the original petitioner approached this Court in W.P.(S). No. 2292 of 2001 which was disposed of vide order dated 08.06.2001, directing the petitioner to file fresh representation before the respondents, which shall be considered in accordance with law and a decision to that effect shall be taken and if any amount is found payable, the same should be released within one month from the date of such decision. In compliance of the Court’s order, the original petitioner filed representation and the respondents, in turn, vide letter dated 13.06.2011 directed the petitioner to produce all relevant documents before the Secretary, Health Department to which the petitioner replied that he has already submitted the relevant documents before the authority concerned but he was sitting tight over the matter. When the Court’s order was not complied with, the original petitioner preferred Cont. Case (C). No. 305 of 2002 and during the pendency of the said contempt, the respondents vide order dated 14.06.2002 disposed of the representation of the petitioner, holding therein that as the petitioner has failed to produce the relevant documents in support of his appointment, it is apparent that his appointment is illegal. 6. However, this Court being not satisfied with the reasoning given in the order dated 14.06.2002, allowed further two weeks’ time to the respondents to ascertain the factual position and file an additional affidavit. In pursuance thereto, the respondents passed further order dated 02.08.2002 holding inter alia that the original petitioner was actually appointed on temporary basis without following the norms and procedures and as such, he is not entitled for any salary. Accordingly, the contempt proceeding was dropped vide order dated 12.12.2002 with a liberty to the petitioner to challenge the order dated 02.08.2002 before an appropriate forum. 7. In view of liberty granted by this Court, the original petitioner filed another writ petition numbered as W.P.(S). No. 09 of 2003 challenging the order dated 02.08.2003 in which interim order was passed directing the respondents to allow the original petitioner to continue in service. 7. In view of liberty granted by this Court, the original petitioner filed another writ petition numbered as W.P.(S). No. 09 of 2003 challenging the order dated 02.08.2003 in which interim order was passed directing the respondents to allow the original petitioner to continue in service. In view of interim relief granted, the petitioner continued to discharge his duties till the date of superannuation on 31.01.2013 and after retirement, he handed over the charges one Manohar Mahto, Clerk as per the direction of his Controlling Authority. It is further case of the original petitioner that though he was continuing to discharge his duties in view of order passed by this Court, the respondents were not paying salary to him and as such, he preferred another writ petition viz. W.P.(S). No. 2204 of 2008 seeking direction upon the respondents to make payment of salary. Both the aforesaid writ petitions were heard together and vide judgment dated 06.07.2015, this Court was pleased to set aside the order contained in memo No. 437(5) dated 14.06.2002 as well as the reasoned order contained in memo No. 554(5) dated 02.08.2002 and remitted the matter back to the Secretary, Department of Health and Family Welfare to consider the case of petitioner afresh and pass a reasoned order within a period of six weeks from the date of receipt/ production of a copy of this order. The Court also directed the respondents to decide question of payment of salary to the petitioner which was the subject matter of challenge in W.P.(S). No. 2204 of 2008. 8. Thereafter, the original petitioner filed detailed representation but no action was taken and hence, he filed Cont. Case (C). No. 288 of 2016 in which, upon receipt of notice, the respondent No. 2 vide order dated 09.03.2016 rejected the claim of petitioner interalia holding therein that as the appointment of petitioner was irregular and illegal, he is not entitled for his retiral benefits, salary and other allowances. 9. Being aggrieved by the same, the petitioner preferred another writ petition numbered as W.P.(S). No. 5552 of 2016. The said case was heard and disposed of on 17.06.2019 in terms of order passed by this Court in W.P.(S). No. 2676 of 2016 with a direction upon the original petitioner to file representation before the respondents. 9. Being aggrieved by the same, the petitioner preferred another writ petition numbered as W.P.(S). No. 5552 of 2016. The said case was heard and disposed of on 17.06.2019 in terms of order passed by this Court in W.P.(S). No. 2676 of 2016 with a direction upon the original petitioner to file representation before the respondents. In compliance thereof, the petitioner filed a detailed representation dated 19.12.2019, however, the respondents vide letter No. 190 dated 08.11.2019 once again rejected the claim of petitioner. Aggrieved by the same, the petitioner has knocked the door of this Court. 10. Mr. Amit Kumar Das assisted by Ms. Swati Shalini, learned counsel appearing for the petitioner strenuously urges that impugned order dated 08.11.2019 is wholly illegal, arbitrary and without jurisdiction. Learned counsel submits that once this Court has already observed that the respondents were not justified in rejecting the claim of petitioner, it was not open for the respondents to again reject the claim of petitioner by barely stating that the appointment of original petitioner was irregular and any promotion granted to him is not proper. Learned counsel submits that the action on the part of the respondents in withholding the salary of original petitioner is illegal, arbitrary, void and without any jurisdiction and the respondents cannot withhold the salary of original petitioner since March, 2000 without passing any order either with regard to his suspension or dismissal. 11. Per contra, counter-affidavit has been filed. 12. Learned counsel appearing for the respondents vehemently opposing the contention of learned counsel for the petitioners argues that though original petitioner was appointed on temporary basis and further extension was given but his services were never regularized and since appointment was purely on temporary basis, he is not entitled for salary, as claimed in the instant writ petition. It has been further argued that from the Directorate it has been opined that appointment of original petitioner is irregular and as such, illegal and therefore, he is not entitled for any salary. Learned counsel for the respondents further argued that since original petitioner has already superannuated his claim is not genuine and prayer for payment of salary from March, 2000 till his superannuation is also not tenable in the eyes of law. To buttress his arguments, learned counsel for the respondents places heavy reliance on the judgment of Hon’ble Apex Court in case of State of Bihar & Ors. To buttress his arguments, learned counsel for the respondents places heavy reliance on the judgment of Hon’ble Apex Court in case of State of Bihar & Ors. Vs. Kirti Narayan Prasad, reported in (2019) 13 SCC 250 . 13. Having heard the rival submissions of the parties and from perusal of the documents brought on records, some facts which are not in disputes are as follows: I) Admittedly, the original petitioner was appointed on 28.12.1982 and thereafter, his services were extended from time to time. II) The original petitioner faced interview and thereafter, his services were extended by the Civil Surgeon, Dhanbad. III) The original petitioner was getting regular salary and no complaint was ever made against him. IV) The original petitioner was considered and granted promotion from time to time inasmuch as he has been considered and granted Junior Selection Grade w.e.f. 30.12.1990 vide office memo No. 2998 dated 05.10.1991 and subsequently, he was given selection grade vide office order No. 1170 dated 21.12.1998. V) The Service Book of the original petitioner was opened and maintained. VI) Never any departmental proceeding was initiated but respondents on the ground that appointment of the petitioner itself was irregular withheld the salary of the original petitioner from March, 2000. 14. Now, the issues to be decided in the instant writ petition are as follows: I) Whether the appointment of the original petitioner was illegal or irregular? II) If the original petitioner continued in services and getting salary till 2000 and thereafter considered for time bound promotion to Junior Selection Grand and Selection Grade, whether without any rhyme and reasons and without initiation of any departmental proceeding, the salary of the petitioner can be stopped from March, 2000 till date of his superannuation? 15. Now coming to the aforesaid issues, it can comfortably be inferred that since the appointment of original petitioner was as per rule, the respondents allowed him to continue in service and extension was given to him from time to time and he was also promoted on different posts. As such, it cannot be said that appointment of the original petitioner is illegal and his salary cannot be withheld on that pretext. 16. Law is well settled that any order of withholding of salary cannot be passed abruptly. As such, it cannot be said that appointment of the original petitioner is illegal and his salary cannot be withheld on that pretext. 16. Law is well settled that any order of withholding of salary cannot be passed abruptly. In the instant case without issuance of show-cause notice and initiation of regular departmental proceeding, salary of the original petitioner has been withheld from March, 2000 till the date of his superannuation. In case of Food Corpn. of India vs. A. Prahalada Rao, reported in (2001) 1 SCC 165 at Para 5, the Hon’ble Apex Court has held as under: “5. In our view, on the basis of the allegation that Food Corporation of India is misusing its power of imposing minor penalties, the Regulation cannot be interpreted contrary to its language. Regulation 60(1)(b) mandates the disciplinary authority to form its opinion whether it is necessary to hold inquiry in a particular case or not. But that would not mean that in all cases where an employee disputes his liability, a full-fledged inquiry should be held. Otherwise, the entire purpose of incorporating summary procedure for imposing minor penalties would be frustrated. If the discretion given under Regulation 60(1)(b) is misused or is exercised in an arbitrary manner, it is open to the employee to challenge the same before the appropriate forum. It is for the disciplinary authority to decide whether regular departmental enquiry as contemplated under Regulation 58 for imposing major penalty should be followed or not. This discretion cannot be curtailed by interpretation which is contrary to the language used. Further, Regulation 60(2) itself provides that in a case if it is proposed to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of retirement benefits payable to an employee and in such other cases as mentioned therein, the disciplinary authority shall hold inquiry in the manner laid down in Regulation 58 before making any order imposing any such penalty. Hence, it is apparent that the High Court erroneously interpreted the Regulation by holding that once the employee denies the charge, it is incumbent upon the authority to conduct inquiry contemplated for imposing major penalty. It also erred in holding that where an employee denies that loss is caused to the Corporation either by his negligence or breach of order, such inquiry should be held. It also erred in holding that where an employee denies that loss is caused to the Corporation either by his negligence or breach of order, such inquiry should be held. It is settled law that court's power of judicial review in such cases is limited and court can interfere where the authority held the inquiry proceedings in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry and imposing punishment or where the conclusion or finding reached by the disciplinary authority is based on no evidence or is such that no reasonable person would have ever reached. As per the Regulation, holding of regular departmental enquiry is a discretionary power of the disciplinary authority which is to be exercised by considering the facts of each case and if it is misused or used arbitrarily, it would be subject to judicial review.” 17. It is not in dispute that service book of the original petitioner was opened and duly maintained and he received regular salary till February, 2000 and his services were confirmed. Thereafter, looking to the efficiency of the original petitioner he was promoted to Junior Selection Grade and thereafter, Selection Grade. On these score itself it cannot be said that the original petitioner was never appointed. The entire disputes has been raised after superannuation of the original petitioner. 18. Similar issue fell for consideration before the Hon’ble Patna High Court in case of Kabir Mahto Vs. State of Bihar & Ors., reported in 2009 (1) PLJR 35 , wherein the Hon’ble Court held as under: “7. The petitioner was appointed as Assistant Teacher on 23-2-1972. There is a presumption in law that when he was appointed after his eligibility, qualifications, certificates, and testimonials were verified. That is further emboldened in the present case from the facts that from 1972 till 1999 none found any illegality in his appointment or quality of education imparted by him. Twenty-seven years after his appointment suddenly an issue of the illegality of the appointment is sought to be raked up. He is then made to run to the lawyer and to the Court room and balance his budget for running his house. The casualty is to the education being imparted by him. This Court in 2003 granted liberty for an enquiry. The respondents still chose to sit over the matter. He is then made to run to the lawyer and to the Court room and balance his budget for running his house. The casualty is to the education being imparted by him. This Court in 2003 granted liberty for an enquiry. The respondents still chose to sit over the matter. The pronouncement of the illegality of the appointment has been made after superannuation of the petitioner. For what purpose and with what achievement? Even this determination is contrary to elementary principles of law which is so well established by now and needs no reiteration that no man shall be condemned unheard. The respondents chose to do exactly opposite to condemn the petitioner without hearing him. The so-called enquiry which resulted into the order dated 14-9-2004. it was never considered necessary to associate the petitioner with the same when decisions were taken on photocopies of the documents. 8. If the petitioner was an illegally appointee as is sought to be contended quite obviously it was a collusive appointment. If, it was a collusive appointment, why should the petitioner suffer alone? Those who made hay while the sun shone must equally see cloudy days. If the petitioner has to be denied his arrears of salary and retiral benefits all those in the Government who were associated with the appointment of the petitioner and released all salary to him as Assistant Teacher from 1972 to1999 are equally required to be proceeded with against departmentally or under the criminal laws of the land, as the case may be. The counter-affidavit of the respondents is completely silent on this issue, perhaps intentionally. 11. The impugned orders dated 14-9-2004 and 20-9-2004 are quashed. The Court holds that the petitioner is entitled to his entire arrears of salary withheld from 1999 till his retirement on 30-6-2004 as also his retirement benefits. The only justification for the same would be institution of simultaneous departmental or criminal proceedings against those who dealt with his appointment and continuance from 1972 to 1999 as noticed above.” (Emphasis supplied) 19. From the aforesaid decision also, when any person has served for much longer period and also when his service book is maintained by the Government coupled with the fact that such employee is confirmed and two promotions have also given, then his services cannot be terminated on the ground that he was initially not appointed in accordance with law. From the aforesaid decision also, when any person has served for much longer period and also when his service book is maintained by the Government coupled with the fact that such employee is confirmed and two promotions have also given, then his services cannot be terminated on the ground that he was initially not appointed in accordance with law. This type of allegation is thoroughly a baseless allegation. 20. The reliance of learned counsel for the respondents on the judgment of State of Bihar & ors. Vs. Kirti Narayan Prasad (supra) is of no assistance to him. The original petitioner has never claimed for regularization. His appointment was irregular but by efflux of time, the same was confirmed and thereafter, petitioner received his salary till February, 2000. It is only from March, 2000, the salary of petitioner has been withheld without initiation of regular departmental proceeding, which is not tenable in the eyes of law. If appointment of petitioner was illegal it was open for the respondents to terminate him which was never done and original petitioner was allowed to continue in his service till the date of his superannuation. After his superannuation, the respondents are raising disputes regarding his initial appointment which is not tenable in the eyes of law and impugned orders are fit to be quashed and set aside. 21. As a sequitur to the aforesaid observations, rules, guidelines and legal propositions, the impugned orders dated 09.03.2016 and 08.11.2019 are hereby quashed and set aside. The respondents are directed to release the salary of the petitioner from March, 2000 till the date of superannuation of the petitioner, within a period of 12 weeks from the date of receipt/ production of a copy of this order. 22. The writ petition is accordingly allowed.