The High Court
Case Details
1 W.P. (S) No. 4261 of 2023 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 4261 of 2023 Rabindra Kumar Jha … Petitioner -Versus- 1. 2. 3. 4. 5. The State of Jharkhand The Secretary, Department of Education, Jharkhand, Ranchi The Director, Secondary Education, Government of Jharkhand, Ranchi The Regional Deputy Director of Education, North Chhotanagpur Division, Hazaribag The District Education Officer, Dhanbad … Respondents -----
Legal Reasoning
by the respondent-State before the Division Bench of this Court in L.P.A. No.64 of 1998(R), which was dismissed vide order dated 08.04.1999. He submits that the order passed by the Division Bench of this Court was further taken before the Hon'ble Supreme Court in S.L.P. No.7153 of 1999, which was also dismissed vide order dated 06.01.2000. He further submits that after the order of the writ Court, the petitioner was directed to join his services on 28.08.1999 and he retired on 30.06.2019. He also submits that the petitioner has been paid retirement benefit counting his services w.e.f. 28.08.1999 and the period of illegal termination i.e. from 23.07.1992 till 28.08.1999 was not counted by the respondent-State, as a result of which, 3 W.P. (S) No. 4261 of 2023 the petitioner's post retirement benefit and pensionary benefit have been severely affected. He submits that the petitioner was found not worked during that period of illegal termination by the respondent-State, which was further quashed by the High Court and in view of that, the petitioner is entitled for counting of the said service as well as retirement benefit. 6. Mr. Munna Lal Yadav, learned counsel for the respondent-State by way of referring counter affidavit submits that the petitioner is not entitled for the period from 23.07.1992 to 28.08.1999 as he has not worked during that period. He further submits that the High Court has not directed any back wages while quashing the termination order and in view of that, the petitioner is not entitled for counting of that period, however, he does not dispute dismissal of the said L.P.A. as well as S.L.P. by the Division Bench of this Court as well as the Hon'ble Supreme Court respectively. 7. It is an admitted position that the petitioner was appointed as Clerk on 12.03.1988. Subsequently, the service of the petitioner was terminated by the order dated 23.07.1992, which was challenged by the petitioner before this Court in C.W.J.C. No.3921 of 1996(R) and vide order dated 12.12.1996, the termination order of the petitioner was quashed, which was further challenged by the respondent-State before the Division Bench of this Court in L.P.A. No.64 of 1998(R) and that L.P.A. was dismissed vide order dated 08.04.1999, against which, the S.L.P. No.7153 of 1999 was filed by the respondent-State, which was also dismissed by the Hon'ble Supreme Court vide order dated 06.01.2000. Thus, quashing order has attained finality. 8. In this background, it is an admitted position that so far as consequential benefit including counting of service is concerned, there is no 4 W.P. (S) No. 4261 of 2023 doubt that if the petitioner has not worked for certain period on the basis of No work No Pay, the order can be passed, but there are parameters of passing such order. If the Court comes to the conclusion that there is illegality on behalf of the authority concerned to not allow the petitioner to work, the Court is required to pass appropriate order. 9. In the case in hand, it has already been held by this Court that the said termination order was not in accordance with law and, as such, the termination order was already quashed, which was affirmed up to the Hon'ble Supreme Court. Thus, for the wrong of the respondent-State, the petitioner was prevented to work and if such a situation is there, the case of the petitioner is covered in light of the judgment of the Hon’ble Supreme Court in the case of Pradeep son of Raj Kumar Jain v. Manganese Ore (India) Ltd., reported in (2022) 3 SCC 683, in which, it has been held that the question arises as to whether the back wages is to be given and as to what is to be the extent of that back wages, these are the aspects which will depend on the facts of the case as noted in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors., reported in (2013) 10 SCC 324. 10. Thus, it is well settled that in a case where it is found that the employee was not at all at fault and yet, he was visited with illegal termination or termination which is actually activised by malice, it may be unfair to deny him the fruits of the employment which he would have enjoyed, but for the illegal/malafide termination, he was not allowed. 11. In view of that, the effort of the Court must be to then to restore the status quo in the manner which is appropriate in the facts of each cases. 5 W.P. (S) No. 4261 of 2023 12. It is crystal clear that the petitioner was not allowed to work and in view of that, liability cannot be fastened upon the petitioner and in that view of the matter, it is a fit case to command upon the respondent-State in the nature of mandamus to count the services of the petitioner w.e.f. 23.07.1992 to 28.08.1999 and to pay retirement benefits counting that period. The respondent-State is directed to release salary and other consequential benefits including retirement benefits in favour of the petitioner counting the said period within a period of six weeks from the date of receipt/production of a copy of this order. 13.
Arguments
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI ----- For the Petitioner For the State : Mr. Mahesh Tewari, Advocate Mr. Ritesh Kumar Mahto, Advocate : Mr. Munna Lal Yadav, S.C. (L&C)-III ----- 04/17.02.2024 Learned counsel for the respondent-State submits that the counter affidavit is ready and it has already been served upon the learned counsel for the petitioner. He submits that since the matter was on Board, the same was not filed in the Registry. 2. 3. In view of such submission, the counter affidavit is taken on record. Heard Mr. Mahesh Tewari, learned counsel for the petitioner and Mr. Munna Lal Yadav, learned counsel for the respondent-State. 4. The prayer is made in this writ petition for counting the services of the petitioner as an Assistant/Clerk on and from 23.07.1992 i.e., the date of his illegal termination and till 28.08.1999 on which date, the earlier writ petition filed by the petitioner was allowed, whereby, the termination order of the petitioner was quashed. The further prayer is made for direction upon the respondents to treat the period of the petitioner's services from 23.07.1992 till 28.08.1999 as continuation in service and count his services for grant of all consequential benefits in post retirement and pensionary benefit. 2 W.P. (S) No. 4261 of 2023 5. Mr. Mahesh Tewari, learned counsel for the petitioner submits that the petitioner was appointed as a Clerk in the Rajkiya Uchaya Vidayalaya at Shitalpur in the district of Dhanbad in the year 1988. The petitioner was doing his service with all satisfaction of the higher authorities and all of a sudden, his services were terminated by the Memo No.327 dated 23.07.1992 on the ground that sanction for the appointment of the petitioner and others was not obtained from the competent authority, namely the District Education Officer (DEO), Dhanbad. He further submits that the said termination order was challenged by the petitioner in C.W.J.C. No.3921 of 1996(R), which was allowed vide order dated 12.12.1996 by which the termination order was quashed. He submits that the said order was passed based on the decision of the Coordinate Bench in C.W.J.C. Nos.1846 of 1993(R) and 1186 of 1996(R) and considering the judgments passed in those case, it was found that the case of the petitioner was on similar footing and, therefore, the termination order was quashed. He also submits that the said order passed by the learned Single Judge was tested
Decision
Accordingly, this petition is allowed in above terms and disposed of. Ajay/ (Sanjay Kumar Dwivedi, J.)