Jharkhand High Court
Dr. Jitendra Kumar Srivastava vs The State Of Jharkhand Through The ... on 4 May, 2022
Author: S. N. Pathak
Bench: S.N. Pathak
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 4590 of 2016
Dr. Jitendra Kumar Srivastava .... .... Petitioner
Versus
1. The State of Jharkhand through the Secretary, Animal Husbandry
Department, Ranchi.
2. The Director, Animal Husbandry Department, Govt. of Jharkhand,
Ranchi.
3. The Regional Director, Animal Husbandry Department, Govt. of
Jharkhand, Ranchi.
4. Accountant General, Jharkhand, Ranchi.
.... .... Respondents
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CORAM : HON'BLE MR. JUSTICE DR. S.N. PATHAK
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For the Petitioner : Mr. Shresth Gautam, Advocate
For the Resp. State : Mr. Aditya Raman, AC to G.A.-III
For the Resp. No. 4 : Mr. Sudarshan Srivastava, Advocate
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6/ 04.05.2022 Heard the parties.
2. Though the petitioner has approached this Court with multiple prayers, but he now presses prayer nos. (i), (ii) and (v) only, as other prayers have already been redressed, in view of the averments made in counter affidavit filed by the respondent-State.
3. The main prayer of the petitioner is to quash and set aside the order contained in Memo No. 1835 dated 22.9.2009 (Annexure-7), whereby, the period of suspension i.e. 30.1.2002 till the date of superannuation i.e. 31.8.2002, has been treated as break in service.
4. As per factual matrix, the petitioner was initially appointed on 2.11.1966 as Animal Husbandry Extension Supervisor, on Class-III post. Subsequently, Class-III posts in the Animal Husbandry Department were amalgamated with Class-II post and the petitioner, therefore, continued on class-II post. Thereafter, the petitioner was posted as Artificial Insemination Officer where he continued till his superannuation i.e. on 31.8.2002. It is the case of the petitioner that on 30.1.2002, he was suspended from service on the pretext of his involvement in fodder scam cases and he was sent to judicial custody. Thereafter, the petitioner was released from jail custody in the month of January, 2003, and a departmental proceeding was initiated by framing a memo of charge on 6.8.2004 under Rule 43(b) of the Pension Rules, as the petitioner retired on 31.8.2002 itself. The petitioner had earlier preferred a writ petition, being W.P.(S) No. 4246 of 2005 and the same was disposed by this 2 Court with certain directions, remitting back the case to the respondents for reconsideration regarding provisional pension and gratuity in terms of Resolution No. 3014 dated 31.7.1980 and for payment of leave encashment. The petitioner also preferred letters patent appeal, being L.P.A. No. 678 of 2005 and the same was disposed of in view of the Full Court judgment rendered by this Court in the case of Dudhnath Pandey Vs. State of Jharkhand & Ors, reported in 2007 (4) JCR (1). Thereafter, the respondent authorities challenged the said order before the Hon'ble Apex Court and the matter was given quietus and order of the Division Bench was affirmed, holding therein to pay the entire retiral benefits to the petitioner. Thereafter, vide letter dated 26.11.2018, the amount of Rs. 5000/- was withheld on the ground of non-furnishing of DC/NDC of departmental dues. It is the case of the petitioner that all the required certificates were forwarded to the office of Accountant General, Jharkhand for making payment, but the said amount was kept in abeyance. The petitioner moved before the authorities for payment of dues, but the claim of the petitioner was rejected vide order dated 22.9.2009. The petitioner has filed this writ petition assailing the order at page-59 dated 22.9.2009, whereby in view of Rule 97(2) of the Service Code, the period of suspension till the date of superannuation was not treated to be as period spent on duty.
5. Mr. Shresth Gautam, learned counsel appearing for the petitioner assiduously argues that the petitioner is entitled for the benefits of intervening period and also for treating the period of suspension to be the period spent on duty. He further argues that the respondents cannot initiate any proceeding under Rule 97(2) after retirement of the employee, which is not permissible in the eyes of law. Learned counsel submits that even opportunity of hearing was not afforded to the petitioner and in complete violation of principle of natural justice, the impugned order has been passed, which is not tenable in the eyes of law and the same should be quashed and set aside, as it has no legs to stand. Therefore, a direction be given to the respondents to consider the case of the petitioner regarding suspension period to be treated on duty. Learned counsel further submits that the benefits on account of ACP accrued to him should also be paid to the petitioner. Learned counsel draws the attention of paragraphs- 15 and 16 of the counter affidavit and submits that if the respondents have agreed in principle to grant the said benefits, a direction be also given to the respondents to pay the same at the earliest. To buttress his argument, learned 3 counsel places heavy reliance upon the decision of the Patna High Court in the case of Shri Mahabir Prasad Vs. The State of Bihar & Ors., reported in 1975 SCC OnLine Pat 46 : 1988 PLJR 82. Learned counsel also places reliance upon the decision of this Court rendered in W.P.(S) No. 7388 of 2016 (Mukesh Prasad Singh Vs. The State of Jharkhand & Ors.), wherein, this Court taking into account the ratio laid down in the case of Shri Mahabir Prasad (supra) held that prior to passing the order under Rule 97, a notice is required to be served to delinquent. Learned counsel also places reliance upon the decisions rendered in the cases of Ram Charitar Prasad Vs. State of Bihar & Ors., reported in 2000 SCC OnLine Pat 1032 and Bindeshwar Narain Srivastava @ Dr. Bindeshwar Narain Srivastava Vs. The State of Bihar & Ors., reported in 2005 SCC OnLine Pat 176.
6. Per contra, counter affidavit has been filed. Mr. Aditya Raman, learned counsel representing the respondent State very fairly submits that so far as benefit of ACP is concerned, the respondents have already taken care of for granting the benefit of ACP and to that effect, averment has been made in paragraph nos. 15 and 16 of the counter affidavit. Learned counsel submits that other grievances have already been redressed. It has further been argued that in view of the Full Bench judgment delivered in L.P.A. No. 1469 of 1995 (Smt. Vidya Sinha Vs. The State of Bihar & Ors.), the contention of learned counsel for the petitioner regarding treating the period of suspension as period spent on duty is not tenable in the eyes of law. Learned counsel, therefore, submits that rejecting the case of the petitioner regarding the same vide order dated 22.9.2009 is fully justified.
7. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration only on the point that without affording any opportunity of hearing, the impugned order has been passed. However, the Court is fully satisfied in view of the law laid down by the Division Bench that the respondent State is not precluded from initiating any proceeding under Rule 97(2) of the Service Code, even after retirement. Admittedly, before passing of the impugned order, the petitioner was not afforded any opportunity of hearing and as such, on this score, the impugned order is not tenable in the eyes of law.
8. Hence, the impugned order dated 22.9.2009 (Annexure-7) is hereby quashed and set aside. The matter is remitted back to the respondents 4 for taking a fresh decision in accordance with law. The respondents are directed to take a decision on intervening period as claimed, after affording adequate opportunity of hearing to the petitioner and after issuance of show cause notice, within a period of six weeks from the date of receipt/production of a copy of this order. So far as payment of ACP benefit is concerned, since the respondents have already admitted the benefit accrued to the petitioner, the respondents are directed to extend the ACP benefit to the petitioner within a further period of four weeks.
9. This writ petition is accordingly disposed of, as indicated above.
(Dr. S. N. Pathak, J.) R.Kr.