Partly allowed

Subhash Chandra Singh v. the State of Jharkhand

Jharkhand HC10 Apr 2024WPC/206/2023

Case brief

AI extract

What is this about?

A retired cooperative extension officer challenged an order treating his absence during an illegal transfer as unauthorized leave with no pay, and a recovery from his leave encashment. The court set aside the order since the enquiry found the transfer violated State circulars protecting elected office bearers, and directed fresh calculation of retiral benefits.

What did the court decide?

Memo No. 242 dated 25.02.2021 set aside; respondent no. 6 directed to pass fresh calculation within two months and remit admissible amount within one month thereafter.

Subhash Chandra Singh Vs the State of… — Pension and Retirement Benefits | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S) No. 206 of 2023

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Subhash Chandra Singh, aged about 60 years, son of Late Braj Nandan Singh, resident of Village – Daulatpur, (Malaypur), P.O. Daulatpur, P.S. Jamui, Dist.- Jamui (Bihar), at present residing at Vikash Nagar, Road No. 3, Hesag, P.O. Hatia, P.S. Jagarnathpur, Dist.- Ranchi, (Jharkhand).

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… … Petitioner

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Versus

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The State of Jharkhand.

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The Principal Secretary, Agriculture, Animal Husbandry and Cooperative Department (Cooperative Section), Govt. of Jharkhand, Nepal House, Doranda, P.O. & P.S. – Doranda, District- Ranchi.

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The Principal Secretary, Finance Department, Government of Jharkhand, Project Building, P.O. & P.S. Dhurwa, District.- Ranchi, Jharkhand.

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The Registrar, Co-operative Society, Jharkhand Ranchi, having office at Pashupalan Bhawan, Hesag, P.O.- Hatia, P.S.- Jagarnathpur, DistrictRanchi (Jharkhand).

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The Under Secretary, Agriculture, Animal Husbandry and Co-operative Department (Cooperative Section), Govt. of Jharkhand, Nepal House, Doranda, P.O. & P.S.- Doranda, District- Ranchi.

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The Assistant Registrat, Co-operative Society, Ranchi Circle, Ranchi, having office at Pashupalan Bhawan, Hesag, P.O.- Hatia, P.S.Jagarnathpur, District- Ranchi (Jharkhand). … … Respondents

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Deepak Kumar Dubey For the Respondents : Anish Kumar Mishra, AC to Sr. SC I ---

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08/10^th April 2024

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1. Learned counsel for the parties are present.

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2. This writ petition has been filed for the following reliefs:-

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“(i) For issuance of an appropriate writ(s)/ order(s)/ direction(s) particularly a writ in the nature of certiorari for quashing of the Memo no. 242 dated 25.02.2021 (Annexure-28) issued by the Under Secretary Agriculture, Animal Husbandry, Co-Operative Department (Co-operative Section) by which period from 22.10.2009 to 25.02.2011 (Total 492 Days) declared as unauthorized absent and the said period has been treated as no work no pay and this order has been passed in suppression of letter no. 144 dated 10.10.2007 and further as per rule 236 (i) of the Jharkhand service code the respondent authorities have regularized the said period as Extra-ordinary leave as because petitioner

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retired on 31.01.2021 due to fault of the respondents, order to be regularized the said period as Extra-ordinary leave has been passed on 25.02.2021 i.e. after the retirement of the petitioner and for this no any application has ever been filed by the petitioner. If these periods i.e from 22.10.2009 to 25.02.2011 would be decided as per letter no. 144 dated 10.10.2007 and also during the service period then said period cannot be considered as Extra- ordinary leave under Rule 236 (i) of the Jharkhand service code rather it could have been adjusted from other admissible leave as prescribed in Service Code.

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(ii) For issuance of an appropriate writ(s)/ order(s)/ direction(s) particularly a writ in the nature of certiorari for quashing of the letter no. 141 dated 07.05.2022 (Annexure-30) issued by the Assistant Registrar, Co-operative Society, Ranchi Circle Ranchi, by which order of recovery of Rs. 5,04,967/- from the leave encashment has been passed on 07.05.2022 i.e after his retirement which is against the order passed by the Hon’ble Apex Court in the case of State of Punjab v. Rafiq Masih reported in (2015) 4 SCC 334 , and against the circular issued by the State of Jharkhand vide memo no. 151 dated 08.11.18 that there shall be no recovery can be made after retirement from the retired 3^rd grade employee.

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(iii) For issuance of an appropriate writ(s)/ order(s)/ direction(s) particularly a writ in the nature of certiorari for quashing the letter no. 1006 dated 03.05.2011 (Annexure-16) whereby and whereunder prior to initiation of the Departmental Proceeding respondent authority has taken decision on the basis of no work no pay theory even without following the principle of Natural Justice and also in violation of letter no 144 dated 10.10.2007 and further prays that letter no. 144 dated 10.10.2007 must be treat in full sense not as per the wish of the respondent authorities.

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(iv). For issuance of an appropriate writ(s)/ order(s)/ direction(s) or a writ in nature of mandamus commanding upon the respondents to grant arrear of salary from 22.10.2009 to 25.02.2011 with statutory interest as because respondent authorities have intentionally not released the salary of the said period in suppression of letter no. 144 dated 10.10.2007 which says that post holder of Maha Sangh cannot be transfer at any place during his tenure if any order of transfer has been issued during his tenure then his transfer order must be stopped/recalled and payment of the said period must be paid to the employee/ post holder/ transferee in the light of letter no. 988 dated 11.05.1992 and this letter has been followed by the State of Jharkhand vide letter no. 144 dated 10.10.2007 till date.”

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3. Learned counsel for the petitioner has submitted that the petitioner

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was initially appointed to the post of Co-operative Extension Officer on 20.10.1989 and was transferred from time to time and in the year 1999, he joined the Office of Assistant Registrar as Co-operative Extension Officer. While he was posted as Co-operative Instruction Officer at Ranchi, on 15-

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16^th August 2009, Jharkhand Rajya Arajpatrit Karamchari Mahasangh, Karamchari, 3^rd State Conference (Jharkhand State Non-Gazetted Employees Federation) was held at Town Hall, Ranchi and he was elected to the post of Sahayak Mantri , in the State Executive of Maha Sangh. While the petitioner was holding the said post of Sahayak Mantri , a transfer order was issued vide letter No. 1789 dated 15.10.2009 and the petitioner was transferred from Ranchi to Bano, Simdega and was also released vide letter No. 683 dated 21.10.2009 without following the provisions as contained in Memo No. 144 dated 10.10.2007, in which, it was categorically stated that earlier letter No. 988 dated 11.05.1992 was in existence in the State of Jharkhand.

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4. Learned counsel has referred to the letter NO. 988 dated 11.05.1992 issued by the then Government of Bihar which stipulated that the persons who were the elected members of Sangh / Maha-sangh cannot be transferred at any place during their tenure and if any transfer order is issued against elected member, their transfer order shall be postponed/withdrawn with immediate effect.

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5. Learned counsel submits that immediately after issuance of the transfer order, Mahamantri of the Sangh submitted a representation on behalf of all the similarly situated persons on 30.10.2009 to recall/cancel the transfer order of the elected post holder. In spite of the representation, no decision was taken. He has referred to the numerous representations annexed along with the writ petition.

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6. Learned counsel submits that letter dated 30.09.2010 (Annexure-11) was issued by the respondent no. 5, whereby a direction was given to the Registrar Co-operative Society to take disciplinary action against all the three Co-operative Extension Officers and also to confirm with regard to their joining at the transferred place. A representation was filed pursuant thereto to cancel the transfer orders to the elected post holders and, ultimately, vide Memo No. 1993 dated 22.10.2010 (Annexure-13), a show cause was issued to the petitioner and other elected post holders. In the meantime, the petitioner was suspended vide memo dated 26.02.2011.

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7. Learned counsel for the petitioner submits that prior to initiation of departmental proceeding, a specific letter No. 1006 dated 03.05.2011

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(Annexure- 16) was issued with respect to the petitioner for the period of no work that no pay will be given to the petitioner.

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8. He submits that ultimately a departmental proceeding was initiated thereafter a memo dated 02.04.2011 was issued against the petitioner and only one charge was leveled, that is, disobedience of the order and indiscipline. The petitioner submitted his reply and the Inquiry Officer submits a report dated 02.06.2011.

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9. Learned counsel has placed the report of the Inquiry Officer and has submitted that the Inquiry Officer has clearly recorded findings that the transfer order was against the aforesaid letter No. 144 dated 10.10.2007 read with letter No. 988 dated 11.05.1992 and, thereafter, it was recommended to drop the disciplinary proceedings against the petitioner.

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10. Learned counsel for the petitioner submits that the transfer order having been held against the decision of the State Government, the transfer order itself was illegal as per the enquiry report and, therefore, there was no question of applying the principle of 'no work no pay' by referring to pre- determined letter dated 03.05.2011.

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11. Learned counsel has submitted that in spite of the enquiry report being clearly in favour of the petitioner, respondent no. 5 has passed the impugned order holding the petitioner guilty of not joining the transferred post and by applying the principle of 'no work no pay' and has treated the period of absence from 22.10.2009 to 25.02.2011 as unauthorized leave by referring to Rule – 236(1).

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12. He further submits that this order has been passed after the superannuation of the petitioner who superannuated on 31.01.2021. 13. The learned counsel submits that the aforesaid period having been treated as extra-ordinary leave, the encashment of the same has been refused to the petitioner and the amount has been deducted from the post retiral benefits payable to the petitioner. Learned counsel for the petitioner submits that the impugned order holding the petitioner guilty and consequently applying the principles of 'no work no pay' by virtue of letter dated 03.05.2011 (Annexure-16) by a pre-determined mind cannot be sustained in the eyes of law.

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14. Learned counsel for the petitioner has also referred to Annexure-31a letter dated 21.03.2009, and has submitted that one person, namely,

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Sunil Kumar Sah was also elected as an office bearer and the principle of no work no pay was not applied in his case and the salary for the intervening period was duly paid to him by treating him in the service.

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15. Learned counsel appearing on behalf of the respondents has relied upon the counter affidavit and has referred to co-operative department, letter No. 1006 dated 06.01.2011 to submit that a decision was taken that till the three Co-operative Officers, who are office bearers of Sangh/Mahasangh join their transferred post, they shall not be paid any salary on the principle of 'no work no pay'. He further submits that the period of 'no work no pay' was treated as extra-ordinary leave as per the instructions issued by the finance department.

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16. Learned counsel has also referred to the counter affidavit to submit that earlier finance department had pointed out the defect and objected to annual increment and the 7^th pay increment was sent for revision and necessary correction and the deduction of amount which is involved in the present case is primarily related to the revision of pay in connection with 7^th pay increment. Consequently, in order to avoid excess payment to the petitioner, the deduction has been made.

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17. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, it is not in dispute that the petitioner was transferred while the petitioner was an elected office bearer. It further appears that the petitioner had participated in the disciplinary proceedings arising out of indiscipline of not joining the transferred post and ultimately it was found that the transfer order of the petitioner was in violation of the circulars issued by the State Government / respondent department. It was held that the suspension of the petitioner was to be invoked and the departmental proceeding was to be terminated and in terms of letter No. 1006 dated 03.05.2011 and the petitioner was required to be posted at Ranchi. The petitioner attained the age of superannuation on 31.01.2021 and the impugned order dated 25.02.2021 was passed by holding the petitioner guilty of unauthorized absence and the intervening period from 22.10.2009 to 25.02.2011 was directed to be treated as extra-ordinary leave on the principle of 'no work no pay'.

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18. This Court is of the considered view that there was specific finding in the enquiry report that the transfer of the petitioner was against the

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circulars of the respondents and accordingly the findings recorded in the impugned order of unauthorized absence on account of transfer cannot be sustained in the eyes of law. In the impugned order the respondents have applied the principles of 'no work no pay' by referring to the letter issued by the State Government as contain in letter No. 1006 dated 03.05.2011 whereby the respondents had predetermined that the petitioner will not be paid salary for the intervening period although there was a clear provision of not transferring the elected office member / office bearers and respondents had acted contrary to their own circular.

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19. In view of the aforesaid facts and circumstances of this case, the impugned order containing Memo No. 242 dated 25.02.2021 cannot be sustained in the eyes of law and is accordingly set aside. All consequences arising out of setting aside of the order dated 25.02.2021 shall follow.

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20. This Court observes that if there is any other reason for making any deduction in the calculation of post retiral benefits of the petitioner as pointed out by the respondents in the counter affidavit, this order will have no bearing on the same.

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21. The respondent no. 6 who has made the calculation showing deduction in Memo No. 141 dated 07.05.2022 (Annexure-30) is directed to pass fresh calculation as a sequel to setting aside of the impugned order No. 242 dated 25.02.2021.

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22. The needful be done within a period of two months from the date of communication of this order. Appropriate follow up orders be issued to ensure that the admissible amount is remitted to the petitioner within a period of one month from the date of fresh calculation .

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(Anubha Rawat Choudhary, J.)

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Aditi

Subhash Chandra Singh v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Subhash Chandra Singh v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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