1.Saroj Devi, aged about 61 years, widow of Ram Binay Sharma, resident of Abbad v. 1.The State of Jharkhand 2.The Principal District & Sessions Judge, Latehar, Post Office, Police
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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Writ Jurisdiction) W.P(S) No. 596 of 2014 1.Saroj Devi, aged about 61 years, widow of Ram Binay Sharma, resident of Abbad Ganj Daltonganj, P.O. and P.S. -Daltonganj, District-Palamu, Jharkhand. 2.Chandan Kumar aged about 38 years, son of Late Ram Binay Sharma, resident C-7, 2nd Floor Back Side Block C Viahwash Park, Uttam Nagar, Near Taar Factory Chowk and Yes Bank ATM, Uttam Nagar, D.K Mohan ...… Petitioners Garden, West Delhi. Versus 1.The State of Jharkhand 2.The Principal District & Sessions Judge, Latehar, Post Office, Police Station & District Latehar, Jharkhand 3.Registrar, Civil Court, Latehar, Post Office, Police Station & District ..... Respondents Latehar, Jharkhand CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioners For the State : Mr. Manoj Tandon, Advocate Mr. Anuraj Kumar, Advocate : Ms. Soumya S. Pandey, AC to AAG-I --------- Order No. 08 /Dated: 24 th June 2023 This is an assigned matter by virtue of the order dated 6th December 2017 passed by Hon'ble the Acting Chief Justice on the administrative side. IA No. 5358 of 2023 2. This application has been filed for substitution of Ram Binay
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Sharma who is the writ petitioner. 3. In this application, the applicants have stated that Ram Binay Sharma passed away on 21st July 2021 leaving behind his wife Saroj Devi aged about 61 years and son Chandan Kumar aged about 38 years. This application is supported by the affidavit of Saroj Devi and accompanied by e-Adhaar cards of Saroj Devi and Chandan Kumar. 4. In this application, the applicants have stated thus: “7. That it is further humbly stated that since the original writ petitioner has died during the pendency the writ application, hence in the of interest of justice, widow namely Saroj Devi and son namely 2 WP(S) No. 596 of 2014 Chandan Kunar, who are the legal heir of original writ petitioner, has to be made party in the instant matter, so that the benefits of the instant writ petition may flow in the favour, of the legal heir / successors of the deceased petitioner. That it is submitted that on the basis of above submissions, it is therefore prayed that the applicants may be allowed to be impleaded as petitioners in the present writ application in the following manner:- Proposed petitioner 1:-:- Saroj Devi, aged about 61 years, widow of Ram Binay Sharma, resident of Abbad Ganj Daltonganj, P.O. and P.S. -Daltonganj, District-Palamu. Proposed petitioner 1(a):- Chandan Kumar aged about 38 years, son of Late Ram Binay Sharma, resident C-7, 2nd Floor Back Side Block C Viahwash Park, Uttam Nagar, Near Taar Factory Chowk and Yes Bank ATM, Uttam Nagar, D.K Mohan Garden, West Delhi.” 5. In view of the aforementioned materials on record, I.A. No. 5358 of 2023 is allowed and the applicants are substituted in place of Ram Binay Sharma and, accordingly, cause title shall be corrected with red ink. WP(S) No. 596 of 2014 6. Seeking a certiorari for quashing the Office Order No. 82/2013 dated 30th November 2013 the writ petitioner who was employed as Steno in Civil Court at Latehar had approached this Court. 7. Mr. Manoj Tandon, the learned counsel for the substituted petitioners has contended that the exercise of powers by the Principal District and Sessions Judge at Latehar under Rule 74(a) of the Jharkhand Service Code to compulsorily retire the writ petitioner from service is seriously flawed and cannot be countenanced in law. 8. The submission made at the bar is that the reason disclosed in the Office Order dated 30th November 2013 that the writ petitioner is inefficient to be retained in service does not justify the said order. 9. Briefly stated the writ petitioner who was initially appointed as temporary Clerk by virtue of the order dated 14th July 1981 issued by the District Judge, Palamau which post was subsequently redesignated as Steno received service-linked benefits such as Junior Selection Grade and ACP benefits. On 24th March 1992, he suffered paralytic attack but continued to work till 30th November 2013 when without a show-cause notice to him Office Order no. 82/2013 was issued by the Principal District and Sessions Judge at Latehar, compulsorily retiring him under section 74(a) of the Jharkhand Service Code. 3 WP(S) No. 596 of 2014 10. In the order dated 30th November 2013 the Principal District and Sessions Judge at Latehar has recorded that the writ petitioner is unable to take shorthand or longhand dictation or to type anything. He has observed that the writ petitioner is unable to speak and put his initial and full signature and therefore salary drawn by him would be misuse of the government money, as he is receiving salary without work. 11. For easy reference, Office Order No. 82/2013 issued on 30th November 2013 is extracted below: “OFFICE OF THE PRINCIPAL DISTRICT & SESSIONS JUDGE, LATEHAR Office Order No.- 82/2013 Perused the note of Judge-in-Charge joint note of Sarishtedar, Head Clerk & Accountant, Letter No.370/13, dated 28.11.13 of the C.J.M., Latehar, Letter No 76/13, dated 22.11.13 of the Judge-in- Charge and Letter dated 28.11.13 of Sri Vishal Gaurav, J.M.1st Class, Latehar, and the Service Book of Sri Ram Vinay Sharma, Stenographer, Civil Court, Latehar. It appears, from the report/notes and letters mentioned herein above that Sri Ram Vinay Sharma, Stenographer has faced paralytic attack on 24.03.1992 and presently he is 100% unable to take short hand or long hand dictation and also unable to type anything. Not only that Sri Sharma is unable to speak. From perusal of Attendance Register of the Civil Court, Latehar and various leave applications it appears that Sri Sharma is so unable that he can not put his initial signature and full signature on any paper. It has also come to the knowledge that Sri Sharma is getting salary of Rs 4,88,304/-(Approximately) Per Annum without any work. It stands to be a misuse of Government money that an employee is getting salary without work. It is found that Sri Ram Vinay Sharma, Stenographer is inefficient to be retained in service. Sri Sharma has completed 21 years of duty and 25 years of total service calculated from the date of his 1" appointment (as on 14.07.1981) are 4.07.2002 14.07.2006 respectively. WHEREAS SHRI RAM VINAY SHARMA, Stenographer, Civil Court, Latehar has completed twenty one years of duty and twenty five years of total service; AND WHEREAS the under signed as Head of the Department considers the retention of the aforesaid Sri Ram Vinay Sharma in Government Service is not justifiable. Now, THEREFORE, in exercise of powers conferred by Rule 74(a) of the Jharkhand Service Code, the undersigned as Head of the Department hereby required that the aforesaid Sri Ram Vinay Sharma shall retire with effect from the date of the service of this order or date of publication of this order in the gazette, which ever is earlier. Principal District & Sessions Judge, Latehar” 12. Rule 74(a) of the Jharkhand Service Code provides as under: “The State Government may require any Government servant who has completed twenty one years of duty and twenty-five years of total service calculated from the date of his appointment to retire from Government service, if it considers that his efficiency or conduct is not 4 WP(S) No. 596 of 2014 such as to justify his retention in service. Where any Government servant is so required to retire, no claim to any special compensation shall be entertained.” 13. By now this is well-settled that the reasons contained in the order of compulsory retirement must be supported by materials on record. The writ Court in exercise of the powers under Article 226 of the Constitution of India cannot look into the subjective satisfaction of the authority but it can certainly examine whether there was any material before the competent authority to arrive at such satisfaction. 14. In “Nand Kumar Verma v. State of Jharkhand” (2012) 3 SCC 580 the Hon’ble Supreme Court has observed as under : “34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material. It is permissible for the courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based.....” 15. An order of compulsory retirement which is taken in the interest of the department/organization is intended to weed out deadwood from the service and for that purpose the entire service record of the employee is required to be examined. 16. In “State of Gujarat v. Umedbhai M. Patel” (2001) 3 SCC 314 the Hon’ble Supreme Court has held as under : “11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus: (i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure.” 17. Recently in“Central Industrial Security Force v. Om Prakash” 5 WP(S) No. 596 of 2014 (2022) 5 SCC 100” the Hon’ble Supreme Court has observed as under: “15. The entire service record is to be taken into consideration which would include the ACRs of the period prior to the promotion. The order of premature retirement is required to be passed on the basis of entire service records, though the recent reports would carry their own weight.” 18. However, in the order dated 30th November 2013 there is no reference of the service records of the writ petitioner and a decision to compulsorily retire him has been taken on the ground that he is unable to perform his duty presumably on account of disability suffered by him. 19. In “Anil Kumar Mahajan v. Union of India” (2013) 7 SCC 243 the Hon’ble Supreme Court has held that in view of section 47 read with section 2(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 it is not open to any authority to dispense with service of an employee or to reduce him in rank, who has acquired disability during his service. 20. In “Anil Kumar Mahajan” the Hon’ble Supreme Court has held as under: “20. The appellant was appointed in the service of the respondents as an IAS Officer and joined in the year 1977. He served for 30 years till the order of his compulsory retirement was issued on 15-10-2007. It is not the case of the respondents that the appellant was insane and in spite of that he was appointed as an IAS Officer in 1977. Therefore, even if it is presumed that the appellant became insane, as held by the enquiry officer, mental illness being one of the disabilities under Section 2(i) of the 1995 Act, under Section 47 it was not open to the respondents to dispense with, or reduce in rank of the appellant, who acquired a disability during his service. If the appellant, after acquiring disability was not suitable for the post he was holding, should have been shifted to some other post with the same pay scale and service benefits. Further, if it was not possible to adjust the appellant against any post, the respondents ought to have kept the appellant on a supernumerary post until a suitable post is available or, until the appellant attained the age of superannuation whichever was earlier.” 21. Ms. Soumya S. Pandey, the learned AC to AAG-I would however contend that no disability certificate issued by the government hospital which is a mandatory requirement under Rules 4, 5 and 6 of the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996 has been produced by the petitioners. In my opinion, this submission cannot be accepted because the Principal District and Sessions Judge has himself recorded that the writ petitioner has 100% 6 WP(S) No. 596 of 2014 disability to take shorthand or longhand dictation. From a glance at the order dated 30th November 2013, it appears that the Principal District and Sessions Judge was driven by the idea that keeping the writ petitioner in service would incur financial loss to the government exchequer. Evidently the powers under Rule 74(a) cannot be exercised on such a ground to compulsorily retire a government employee from service. 22. While so, the order dated 30th November 2013 is found unsustainable in law and, accordingly, quashed. It is held that the original writ petitioner was illegally removed from service by an order of compulsory retirement passed under section 74(a) of the Jharkhand Service Code and by virtue of this order he has been illegally restrained from continuing in service. 23. A decision on the payment of salary to an employee depends on various factors. It has been held by the Hon'ble Supreme Court that if by virtue of an “illegal order” the government employee was prevented from discharging his work he shall be entitled for full salary and allowances for that period. The Hon’ble Supreme Court in “Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya” (2013) 10 SCC 324 has held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 24. With reference to “Commr., Karnataka Housing Board v. C. Muddaiah, (2007) 7 SCC 689, Ms. Soumya S. Pandey, the learned AC to AAG-I would however contend that “no work no pay” is the normal rule. In “ C. Muddaiah” the Hon'ble Supreme Court has held as 25. under: “34. We are conscious and mindful that even in absence of statutory provision, normal rule is “no work no pay”. In appropriate cases, however, a court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering “as if he had worked”. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected.” 7 WP(S) No. 596 of 2014 26. Therefore, I further hold that the writ petitioner shall be deemed to be in service till the age of superannuation and is entitled for full salary and all consequential service benefits. 27. WP(S) No. 596 of 2014 is allowed in the aforesaid terms. Tanuj (Shree Chandrashekhar, J.)