Jharkhand High Court
Shiwraj Bhushan vs The State Of Jharkhand on 28 July, 2023
Bench: Shree Chandrashekhar, Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
L.P.A. No. 12 of 2023
Shiwraj Bhushan, aged about 59 years, son of Late Modi Lal Ram,
resident of Village-Pritam Chapra, P.O.-Karan Chhapra, P.S. Dokati,
District Balia (U.P.) ... ... Appellant
Versus
1. The State of Jharkhand.
2. The Principal Secretary, Road Construction Department, Government
of Jharkhand, having office at Project Building, Dhurwa, P.O. & P.S.
Dhurwa, Town and District Ranchi
3. The Engineer-in-Chief, Road Construction Department, Government
of Jharkhand, having office at Project Building, Dhurwa, P.O. & P.S.
Dhurwa, Town and District Ranchi
4. The Chief Engineer, Road Construction Department, Chotanagpur and
Santhal Pargana, Ranchi, having office at Kanke Road, Bungalow No.
4, Ranchi, P.O. Kanke Road, P.S. Kanke, District Ranchi
5. The State of Bihar, through its Principal Secretary, Road Construction
Department (Communication), Patna, having office at Secretariat,
P.O. Gardanibag, P.S. Secretariat, Town and District Patna (Bihar).
6. The Engineer-in-Chief, Road Construction Department
(Communication), Patna, having office at Secretariat, P.O. GPO-
Patna, P.S. Gandhi Maidan, Town and District Patna (Bihar)
... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellant : Ms. Neha Bhardwaj, Advocate
For the Respondents : Mr. Mrinal Kanti Roy, G.A-I
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ORDER
28th July 2023 Per, Shree Chandrashekhar,J.
The appellant who is the writ petitioner has challenged the order dated 28th November 2022 by which W.P. (S) No. 2791 of 2018 has been allowed and the order of termination from service dated 19th July 2012 has been set-aside - but without reinstatement in service.
2. The appellant was appointed on the post of Junior Engineer in the Road Construction Department in the erstwhile State of Bihar on 24th December 1987 and tendered his joining within Chotanagpur sub-Zone and was posted in Manoharpur Division at Chakardharpur. According to the appellant, a letter dated 29 th June, 2000 was issued from the office of Chief Engineer, Mechanical, Road Construction Department whereunder it was indicated that "he was 2 waiting for posting at Tanti Jharia". Therefore he promptly lodged a representation before the Executive Engineer, Road Construction Division at Hazaribag for his posting. This is the case pleaded by the appellant that for several years his joining was not accepted by the competent authority and, compelled thereby, he approached the writ Court in W.P. (S) No. 4623 0f 2017 seeking a directing upon the respondent authority for accepting his joining.
3. While the aforesaid writ petition was pending before this Court, the respondents produced a copy of the order dated 19 th July 2012 to apprise the Court that the appellant was terminated from service and an information in this regard was published through press communique dated 19th July 2012.
4. Aggrieved thereby, the appellant challenged the termination order dated 19th July 2012 by filing W.P. (S) No. 2791 of 2018 with a prayer for reinstatement in service on the post of Junior Engineer with all consequential benefits.
5. In W.P. (S) No. 2791 of 2018, the following prayer has been made by the appellant:
"(i) That this is application for quashing of the order as contained in memo no. 5069(s) dated 19.07.2012, issued by the respondent no. 3, by which service of the petitioner has been terminated in term of the Rule 76 of the Jharkhand Service Code completely on nonest ground and without following the provisions of law, by issuing an appropriate writ and further for issuance of the appropriate writ/writs, direction/directions directing the respondents to reinstate the petitioner in service on the post of Junior Engineer in the department of Road Construction with all consequential benefits."
6. From the pleadings before the writ Court, it appears that the order of termination dated 19th July 2012 was challenged on the grounds that; (a) it was in violation of Articles 14, 16, 21 and 23 of the Constitution of India; (b) it was issued without any notice or opportunity of hearing; (c) it was issued without any enquiry and initiating a departmental proceeding; and (d) it was not in consonance with Rule 76 of the Jharkhand Service Code, 2001.
7. In view of the order of termination dated 19th July 2012, W.P. (S) No. 4623 of 2017 has been dismissed as having rendered infructuous and there is no challenge by the appellant to that part of the common order dated 28th November 2022.
38. In the present Letters Patent Appeal, the appellant has made a prayer for reinstatement in service, as under:
"1. That this appeal is directed against the part of the order dated 28.11.2022 passed by the Hon'ble Mr. Justice Ananda Sen, in W.P. (S) No. 2791 of 2018, whereby despite setting aside the order of termination, the Hon'ble Writ Court has been pleased to refuse the reinstatement of the writ petitioner-appellant in service."
9. As it is reflected in the prayer portion of this Letters Patent Appeal, only grievance raised by the appellant against the common order dated 28th November 2022 is in relation to W.P. (S) 2791 of 2018 to the extent that the writ Court has denied reinstatement in service even after quashing the order of termination dated 19 th July 2012.
10. The writ Court has held as under:
"It is the case of the State that as the petitioner remained absent for more than five years, he ceased to be a government employee and his cessation is automatic. There is no doubt that the petitioner remained absent for more than five years. Rule 76 of the Jharkhand Service Code reads as follows:- " 76. Unless the State Government, in view of the special circumstances of the case, shall otherwise determine, a Government servant, after five years' Continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave ceases to be in Government employ. (a)No Government servant shall be granted leave of any kind for a continuous period exceeding five years. (b)Where a Government servant does not resume duty after remaining on leave for a continuous period of five years, or where a Government servant after the expiry of his leave remains absent from duty, otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him, exceeds a continuous period of five years, he shall unless the State Government otherwise determine be removed from service after following the procedure laid down in the Civil Service (Classification, Control Appeal) Rules, 1930 and the Bihar and Orissa Subordinate Services (Discipline & Appeal) Rules, 1935"
11. Ms. Neha Bhardwaj, the learned counsel for the appellant submits that once the order of termination from service under Rule 76 of the Jharkhand Service Code, 2001 has been set-aside the natural consequence flowing from that would be reinstatement of the appellant in service. To fortify this submission, the learned counsel for the appellant has referred to the judgment "Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) & Ors." (2013) 10 SCC 324 wherein the Hon'ble Supreme Court has held as under:
4"38. The propositions which can be culled out from the aforementioned judgments are:
38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays.
Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind 5 that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees.
38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches, referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."
12. This is not in dispute that the appellant who was employed on the post of Junior Engineer in erstwhile State of Bihar would superannuate from service 31st July 2023. Therefore, on 28th November 2022, when the order of termination from service has been quashed by the writ Court he had not attained the age of superannuation. Furthermore, once we glance through the writ Court's order, it becomes quite apparent that the order of termination from service under Rule 76 of the Jharkhand Service Code has been quashed as being passed without affording an opportunity to the appellant and without initiating a departmental proceeding against him. The writ Court has drawn support from" Sobhana Das Gupta v. State of Bihar" 1974 PLJR 382 and seems to have accepted the contention put forth by the appellant that the cessation of service is not automatic.
13. Now in a writ proceeding in which the order of termination from service was put to challenge by the appellant, it was not within the confines of the powers under Article 226 of the Constitution of India to pass an express order directing that the order dated 29th July 2012 shall not be "treated as the order of reinstatement in service". A government employee who has not attained the age of superannuation on setting-aside of the order of termination from service shall be reinstated in service, except where a finding is recorded by the Court that the reinstatement in service is not possible or reinstatement in service of the government employee shall be against public interest or it would have serious implications in the cadre. Mr. Mrinal Kanti Roy, the learned counsel for the State of Jharkhand has referred to the judgments in "State of Haryana v. Jagdish Chander" (1995) 2 SCC 567; "C. Jacob v. Director of 6 Geology and Mining" (2008) 10 SCC 115 and "H.P. SEB v. Mahesh Dahiya" (2017) 1 SCC 768 to support the writ Court's order to submit that in every case where the termination order has been declared illegal or invalid, reinstatement in service is not the normal rule.
14. However, a glance at the aforesaid judgments reveals that the issues involved in those cases were quite different. "C. Jacob"
refers to continuity in service of an employee who had remained absent for two decades; "Jagdish Chander" is in respect of a discharge order in which the order of termination was found stigmatic and; "Mahesh Dahiya" primarily concerns non-compliance of the rules of natural justice in the departmental enquiry. Mr. Mrinal Kanti Roy, the learned counsel for the State of Jharkhand has lastly referred to the judgment in "Managing Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Ors." (1993) 4 SCC 727 to submit that the reinstatement in service of the appellant shall be only for the purposes of holding the departmental enquiry.
15. After having gone through the judgment in "B. Karunakar", we find that this judgment squarely covers the case of the appellant in as much as in this case the Hon'ble Supreme Court has held that after setting aside the order of termination from service the government employee shall be reinstated in service and put under suspension for the purposes of holding the departmental enquiry. This is common knowledge that only a government employee who is in service can be put under suspension and it is only in cases where the termination from service order is quashed after the delinquent government employee had attained the age of superannuation that the employee is deemed in service for the purposes of conducting the departmental enquiry against him.
16. Having regard to the aforesaid facts and circumstances in the case, we hold that on setting-aside of the termination order dated 19th July 2012, the appellant shall be deemed to be reinstated in service on that day.
(Shree Chandrashekhar, J.)
Binit/Mukul (Anubha Rawat Choudhary, J.)