Allowed

Kusheshwar Das v. the State of Bihar and Ors.

Patna HC19 Jul 2012CWJC/5756/2006

Case brief

AI extract

What is this about?

The High Court allowed the writ petition, setting aside an impugned order that declared a 12-year period of unauthorized absence as a break in service. The Court held that without a initiated departmental proceeding, the authorities could not declare a break in service or deny service benefits, especially after previous orders treated the petitioner as in continuous service.

What did the court decide?

The impugned order (Annexure 12) was set aside and the writ petition was allowed.

Kusheshwar Das Vs the State of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No 5756 of 2006

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Kusheshwar Das, son of Shri Singheshwar Das, resident of village – Mokama, Gurudev Tola, P S – Mokama, District – Patna, at present posted as Assistant Director, Social Security, Madhubani, District - Madhubani .... .... Petitioner/s

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Versus

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1 The State Of Bihar

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2 The Secretary, Labour, Employment and Training Department, Government of Bihar, Patna 3 Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna

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4 Sri Rai Madan Kishore, Deputy Secretary, Labour, Employment and Training Department, Government of Bihar, Patna

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.... .... Respondent/s

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Appearance :

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For the Petitioner/s : Mr Basant Kr Chy, Sr Advocate with Mr Rohit Mishra, Advocate

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For the Respondent/s : Mr Binay Kr Pandey, AC to SC 5

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CORAM: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH ORAL ORDER

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3 19-07-2012 The petitioner, by this writ petition, has challenged the order dated 09.03.2006 passed by the Commissioner –cumSecretary, Department of Labour,

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Employment and Training, Government of Bihar by which the Commissioner has recorded a finding that the petitioner was unauthorizedly absent from 01.07.1985 to 22.05.1997 which period should be treated as break in service for which he would

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not be allowed any increment. Further, it is decided that a departmental proceeding be initiated against him for the said unauthorized absence. This order is contained in Annexure 12 to the writ petition.

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There is counter affidavit and a supplementary

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affidavit by the petitioner.

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Heard Shri Basant Kumar Choudhary, learned Senior Counsel in support of the writ petition and learned counsel for the State and with their consent, the writ petition is being disposed of at the stage of admission itself.

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The petitioner, on the basis of 29^th Competitive Examination held by Bihar Public Service Commission, was selected and appointed on the substantive post of Block Employment –cum- Social Security Officer and posted at Sheikhpura Block by notification dated 03.08.1983 where he joined on 06.08.1983. It appears the State abolished the post of Block Employment –cum- Social Security Officer in the Department of Labour, Employment and Training, Government of Bihar. Accordingly, on 30^th June 1984, the petitioner was notified for joining as Child Development Project Officer at Rania Block, Ranchi. It appears that, in the meantime, petitioner’s services were taken in respect of 1984 Lok Sabha Elections and 1985

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Assembly Elections at Sheikhpura. Accordingly, the petitioner was not relieved from Sheikhpura permitting him to join as per transfer notification. This fact is not in dispute as it is evident from the communication of the Block Development Officer, Sheikhpura to the Department, as contained in Annexure 4, to the writ petition. He remained in Sheikhpura accordingly till 30^th of June, 1985. Petitioner was not being paid his remuneration as he was under orders of transfer and had not joined transferred place. He fell sick. He then tried joining but in absence of any relieving certificate, he was not allowed to join anywhere. He moved departmentally and there are contemporaneous communications to show that he was making representations on which queries were being made but no arrangement for his relieving or joining was done. Ultimately, the petitioner filed a writ petition before this Court being CWJC No 5975 of 1996 which was disposed of by judgment and order dated 12.05.1997 which is Annexure 6 to the writ petition. From the order, one further fact is clear and remains undisputed is that in 1989, he did positively try to join but his joining was not accepted presumably that petitioner had abandoned his job and was trying to reenter into service.

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Here, it may be relevant to note that apparently, the authorities proceeded under a misconception that

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in view of the provisions of Rule 76 of the Bihar Service Code as petitioner had been unauthorizedly absent from 1984 to 1989 i e about 5 years, he would be deemed to have been dismissed which position is not correct inasmuch as the said provision, as it stood, had already been struck down by this Court to be ultra vires, as it provided for automatic dismissal, by judgment of this Court in the case of Sohna Das Gupta –Versus- State of Bihar, 1974 PLJR 382 which led to amendment of the said Rule subsequently and now only after a departmental proceeding, action could be taken in this regard.

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In the writ petition aforesaid, it was noticed that services of the petitioner not having been duly terminated in accordance with law, the authorities were bound to accept the joining of the petitioner and give him a posting. It was, accordingly, so ordered. However, it was observed that as he had not done work for the period of his absence, he would not claim his salary and further liberty was given to the Department to proceed against the petitioner for his long unauthorized absence in accordance with law. This was the judgment of this Court on 12.05.1997.

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Petitioner, pursuant to the aforesaid, joined and was posted. He joined on 23.05.1997 and was given posting on

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22.12.1997 pursuant to which he joined as Assistant Director, Social Security, Pakur on 28.01.1998.

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After joining, petitioner’s remunerations were fixed. Petitioner found that several increments that were due to him were not granted. He, accordingly, moved this Court again by filing CWJC No 11903 of 1998. Before this Court, State took stand that as the petitioner had been disentitled by this Court from receiving salary for the period of his absence, he would not be entitled to any increment. In the order disposing of the writ petition being order dated 05.03.2003, it was clearly noted that there is no indication whether any departmental proceeding was at all initiated in terms of the order of this Court passed in the earlier writ petition. It was, thus, held as follows :

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“… … … It appears that the period of absence of the petitioner has not been treated as break in service and since the petitioner is continuing in service, he would be entitled for the benefits of increments.

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However, in the fitness of things, I think it appropriate to direct the petitioner to make a detailed representation in this regard before the competent authorities and in case, it is so done, the representation filed by the petitioner would be disposed of by speaking order within of a period of three months from the date of its filing. … … …” From the order disposing of the writ petition, it

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would be seen that this Court clearly observed that as there had been no proceedings initiated against the petitioner in respect of his absence from service, the petitioner was treated as being in service without break and could legitimately be entitled to benefits of increment accordingly in this respect that is in respect of claim of increment. Petitioner was directed to make a detailed representation to the authorities who would have to decide the matter. Evidently, no fresh liberty was given to initiate any proceeding because this Court already observed that no proceedings having been initiated, petitioner was being treated as in service without break.

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The petitioner, accordingly, made a

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representation claiming increments that were due in the interregnum period. It is in response to that representation that the impugned order, as contained in Annexure 12, has been passed. In the impugned order, it is mentioned that the period of absence that is 01.07.1985 to 22.05.1997 would be treated as break in service. This has serious repercussions so far as petitioner is concerned. Then it is stated that departmental proceedings be initiated for absence. I see a conflict in the order itself. If the Department had already held that there was break in service, which has serious consequences, what further was to be done in the departmental

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proceeding and why the departmental proceeding. We must not forget that this Court, in the second writ petition filed by the petitioner, clearly held that the petitioner was being treated as continuously in service without break. The liberty was granted as far back as in 1997 by this Court to start departmental proceeding if they so wanted but none was started. Even today, the Court is informed that no departmental proceeding has been started even though a decade and a half has gone back and the petitioner is regularly working. In the second writ petition, the only thing that this Court directed was for filing a representation claiming increment and permitting the authorities to decide that issue. This is being noticed by this Court because of a specific reason.

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Any punishment or an order adverse to the service benefits of an employee can only be passed pursuant to a departmental proceeding duly initiated and conducted in that regard. No punishment or adverse order can be passed without a proceeding in accordance with law in that regard much less on a mere representation by the petitioner for some other purpose. The law in this regard has been settled by the Apex Court in the case of S L Kapoor –Versus- Jagmohan and Others since reported in AIR 1981 Supreme Court 136 , the relevant part thereof is paragraph 16 of the reports which reads as follows :

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“… … … The requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. The person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met. … … …”

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Thus, in absence of any departmental

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proceeding ever having been initiated, the impugned order to the extent that it holds that there is a break in service, cannot be sustained. As noticed earlier in the second round of writ petition by the petitioner, this Court clearly observed that no proceedings having at all been initiated, the petitioner was being treated as being in continuous service. It was not open to the authorities now to hold, without any departmental proceedings whatsoever, that there was a break in service. The consequences are grave inasmuch as not only the petitioner is disentitled to increments in salary but would be visited with serious repercussions on his post retirement benefits.

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Thus, the impugned order cannot be sustained. Such an order could only be passed in a departmental proceeding

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where petitioner had a chance to show that from time to time, he had been representing to the Department to accept his joining. Various correspondences were exchanged in relation to the petitioner which shows intention on part of the petitioner to join but only after intervention by this Court, petitioner was allowed to join. If a departmental proceeding had been conducted then petitioner would have had an opportunity to establish these facts but the authorities, for over one and a half decades since the first order of this Court, have not chosen to start any departmental proceeding whatsoever. None has been initiated even after the impugned order of the Commissioner in the year, 2006. It would highly be inappropriate now to permit any such departmental proceeding for an event that took place over 15 years back to be initiated as petitioner has already suffered enough. For the period 1985 to 1997, he has already been deprived of his salary by orders of this Court as a consequence of he having not worked.

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Thus, Annexure 12, the impugned order is set

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aside. The writ petition is allowed.

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M.E.H./-AFR

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(Navaniti Prasad Singh)

Kusheshwar Das v. the State of Bihar and Ors.

Case brief

What is this about?

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Kusheshwar Das v. the State of Bihar and Ors.

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