Jharkhand High Court
Shyam Sunder Sah vs B.S.R.T.C. & Ors. on 4 February, 2010
Author: D.G.R. Patnaik
Bench: D.G.R.Patnaik
W.P. (S) No. 1050 of 2004
[In the matter of an application under Article 226 of the Constitution of India]
...
Shyam Sundar Sah ... Petitioner
-V e r s u s-
1. The Bihar State Road Transport Corporation.
2. The Administrator, Bihar State Road Transport
Corporation, Patna
3. The Divisional Manager, Bihar State Road
Transport Corporation, Ranchi Division, Ranchi
4. The Depot Superintendent, Bihar State Road
Transport Corporation, Ranchi Division, Ranchi ...
Respondents.
...
For the Petitioner : - Mr. Arshad Hussain, Advocate.
For the Respondents : - Dr. S.N.Pathak, Advocate.
...
Present
The Hon'ble Mr. Justice D.G.R.Patnaik
...
By Court Heard counsel for the parties.
2. Petitioner is aggrieved by the impugned order (Annexure-2) of his
dismissal from service passed on 27.07.2000. The order of dismissal was
made effective from 03.04.1999.
3. The petitioner was appointed as a Driver under the respondent Road
Transport Corporation in the year 1988 and was posted at Ranchi Depot of the
Corporation.
After obtaining permission, he had proceeded on leave from
01.03.1999to 02.04.1999. However, during his stay at village, he fell ill and could no resume duty after expiry of the period of leave.
The petitioner's contention is that he had sent letters to his department head explaining the reason for his not being able to resume duty and praying for extension of period of leave. The first such letter was sent by him on 10.04.1999, followed by similar other letters from time to time. Finally after regaining health, he reported for joining duty and had submitted his joining letter annexing thereto a medical certificate issued by his attending doctor. His joining was not accepted and on the contrary he was informed that by the impugned order, he has been dismissed from service.
4. Learned counsel for the petitioner has assailed the impugned order of the petitioner's dismissal on the ground that it is totally illegal, contrary to the basic service Rules and against the principles of natural justice. Learned counsel explains that prior to the passing of the order of dismissal, the petitioner was never served with any show cause notice nor was given any opportunity whatsoever to defend his case. No reason has been informed to the petitioner as to why despite receiving several letters forwarded by him for extension of the period of leave, such permission was not granted to him.
5. Learned counsel for the respondent State submits that the order of the petitioner's dismissal had to be passed on the basis of the fact that he had overstayed the period of his leave without permission. Learned counsel adds that though the petitioner had submitted his medical certificate but the medical certificate did not inform as to what was the medicines prescribed and neither was the claim of his being ill and confined to bed during the period of purported illness, supported by the petitioner by bringing any evidence on record.
6. Learned counsel admits however that no departmental proceeding was initiated against the petitioner on any charge, though a show cause notice was issued to the petitioner under registered post which was later on published in the newspaper. It was when the petitioner did not respond even after the paper publication of the show cause notice, that the decision to terminate his services had to be taken.
7. From the rival submissions the undisputed facts are that the petitioner, after obtaining permission, had proceeded on leave. Though he overstayed beyond the period of leave, his claim is that he had forwarded applications for extending the period of leave. This has not been denied specifically in the counter affidavit. It also appears that no departmental proceeding was initiated against the petitioner. An appropriate disciplinary proceeding could have been initiated against the petitioner at least on the date when he had approached the office of the respondents for joining. The medical certificate produced by him has been rejected only on conjectures and surmises without making any enquiry regarding the genuineness of the same. The manner in which the impugned order of dismissal has been passed, is certainly against the principles of service jurisprudence and certainly against the principles of natural justice. The petitioner had admittedly not been offered adequate opportunity to defend his case before passing the impugned order of dismissal. A vague statement appears in the counter affidavit that the show cause notice was published in a daily newspaper but neither has the name of the newspaper publication been stated nor has a copy of such publication, if any, been produced.
8. In the light of the above facts and circumstances, I find merit in this writ application and accordingly the same is allowed. The impugned order of the petitioner's dismissal from service dated 27.07.2000, passed by the Divisional Manager, Bihar State Road Transport Corporation, Ranchi Division, Ranchi (Annexure-2) and the impugned order of the appellate authority dated 19.11.2003 (Annexure-1), are hereby quashed. The respondents shall reinstate the petitioner in service with immediate effect. The period from the date of the impugned order of dismissal made effective, till the date of reinstatement shall be treated as the period spent on duty. Since the petitioner has not specifically pleaded that he was not gainfully employed during the period after his dismissal till date, there shall be no order towards payment of back wages.
(D.G.R. Patnaik, J.) High Court of Jharkhand, Ranchi Dated the 4th of February, 2010 Birendra/