Jharkhand High Court
The State Of Jharkhand vs Shoven Khalkho on 13 June, 2024
Author: Navneet Kumar
Bench: Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
LPA No. 161 of 2024
1. The State of Jharkhand
2. The Principal Secretary, Rural Development Department, Government of
Jharkhand, Project Bhawan, Dhurwa, PO Dhurwa, PS Jagarnathpur, District
Ranchi
3. The Deputy Secretary, Rural Development Department, Government of
Jharkhand, Project Bhawan, Dhurwa, PO Dhurwa, PS Jagarnathpur, District
Ranchi
4. The Deputy Commissioner, Latehar, PO and PS Latehar, District Latehar
5. The Deputy Development Commissioner, PO and PS Latehar, District
Latehar ...Appellants
Versus
1. Shoven Khalkho, aged about 59 years, w/o Sri Suresh Lakra, resident of
village Baram (Dipatoli), PO Mahilong, PS Tatisilwai and District Ranchi
2. Anita Kumari, aged about 59 years, d/o Tulsi Ram, w/o Agastya Rishi
Mehta, r/o Bank colony, Sudna, PO Sudna, PS Daltonganj, District Palamau
3. Chandrawati Singh @ Kumari, aged about 53 years, w/o Mr. Triveni
Singh, resident of Baratola near Suresh Singh Chowk, Panki Road no. 2, PO
GLA College Campus, PS Medninagar, District Palamau
4. Ranjana Sinha, aged about 55 years, w/o Birendra Kumar Singh, resident
of village and PO Kashmar, PS Tarhasi, District Palamau (Jharkhand)
5. Mina Kumari, aged about 57 years, w/o Sri Manoj Kumar, resident of
Daltonganj near HP Gas Godown, PO and PS Daltonganj, District Palamau
6. Punam Bala, aged about 56 years, w/o Krishna Kumar Sinha, resident of
Nawa Bazar, PO and PS Nawa Bazar, District Palamau
7. Phulmani Munda, aged about 57 years, d/o Jadurai Munda, r/o Shahpur
Total, Semartand, PO and PS Chainpur, District Palamau
...Writ Petitioners/Respondents
with
LPA No. 105 of 2024
1. The State of Jharkhand
2. The Principal Secretary, Rural Development Department, Government of
Jharkhand, Project Bhawan, Dhurwa, PO Dhurwa, PS Jagarnathpur, District
Ranchi
3. The Deputy Secretary, Rural Development Department, Government of
Jharkhand, Project Bhawan, Dhurwa, PO Dhurwa, PS Jagarnathpur, Ranchi
4. The Deputy Commissioner, Palamau, PO and PS Daltonganj, District
Palamau
5. The Deputy Development Commissioner, Palamau, PO and PS
Daltonganj, District Palamau ...Appellants
Versus
Harendra Kumar, s/o late Devidayal Prasad, resident of Gayatri Mandir
Road, Sudna, PO and PS Daltonganj, District Palamau
...Writ Petitioner/Respondent
with
LPA No. 202 of 2024
1. The State of Jharkhand through the Chief Secretary, Government of
Jharkhand, Project Bhawan, Dhurwa, PO Dhurwa, PS Jagarnathpur, District
Ranchi
2. The Principal Secretary, Rural Development Department, Government of
Jharkhand, Project Bhawan, Dhurwa, PO Dhurwa, PS Jagarnathpur, District
Ranchi
3. The Principal Secretary, Labour Employment and Training Department,
Government of Jharkhand having its office at Nepal House, PO and PS
Doranda, District Ranchi
4. The Secretary, State Institute of Rural Development, having its office at
University Enclave, Panchsheel Colony, PO Hehal, PS Sukhdeonagar,
District Ranchi
5. The Deputy Commissioner, Garhwa, PO and PS Garhwa, District Garhwa
6. The Deputy Development Commissioner, Garhwa, PO and PS Garhwa,
District Garhwa ...Appellants
Versus
1. Dalkeshra Devi, aged about 60 years, w/o Rambali Prasad, resident of
Bhawanthpur, PO, PS and District Garhwa
2. Meera Bai, aged about 62 years, w/o Mohan Choubey, r/o Sahijana, PO,
PS and District Garhwa ...Writ Petitioners/Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant-State : Mr. Ravi Prakash Mishra, AC to AAG-II [in LPA Nos. 161 and 105 of 2024] For the Respondents : Mr. Saurav Arun, Advocate Mr. Bhanu Kumar No. 1, Advocate Mr. Sharon Kerketta, Advocate Ms. Ayushi, Advocate [in LPA No. 161 of 2024] Mr. Manoj Kumar Choubey, Advocate [in LPA Nos. 105 and 202 of 2024]
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th Order No. 06 / Dated: 13 June 2024 I.A. Nos. 3176, 2152, 3882 of 2024 These interlocutory applications have been filed under section 5 of the Limitation Act seeking condonation of delay in preferring the present appeals.
2 LPA No. 161 of 2024 and analogous cases2. We are satisfied with the cause shown by the appellant-State in these applications and, therefore, the delay in preferring these Letters Patent Appeals are condoned.
3. I.A. No. 3176 of 2024, I.A. No. 2152 of 2024 and I.A. No. 3882 of 2024 are, accordingly, allowed.
LPA Nos. 161, 105 and 202 of 2024
4. The writ Court interfered with the orders passed by the Deputy Commissioner terminating the services of Gram Sevika who were appointed by virtue of the order dated 12th February 1990.
5. The writ Court in its order dated 10th November 2023 held as under:
"17. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the impugned order dated 19.03.2019 & letter dated 12.04.2019 in W.P.(S). No. 1842 of 2019; order dated 04.02.2019 and consequential letter dated 16.02.2019 and also letter dated 02.04.2019 in W.P.(S). No. 1007 of 2019; order dated 09.03.2019 and order dated 24.07.2019 in W.P.(S). No. 1845 of 2019, are hereby quashed and set aside.
18. The respondents are directed to reconsider the cases of petitioners and allow them to continue on their services with all consequential benefits till they attain the age of superannuation.
19. Resultantly, the writ petitions stand allowed."
6. Aggrieved thereby, the State of Jharkhand has preferred these Letters Patent Appeals against the common order dated 10th November 2023 passed in WP(S) Nos. 1842, 1007 and 1845 of 2019. The only ground set-up by the State of Jharkhand before the writ Court to justify the termination orders dated 12th April 2019 in WP(S) No. 1842 of 2019, relieving order dated 2nd April 2019 in WP(S) No. 1007 of 2019 and termination order dated 24th July 2019 in WP(S) No. 1845 of 2019 was that the writ petitioners were appointed under a scheme and it was made known to them that their services were temporary in nature and could have been terminated at any time without any notice.
7. Mr. Ravi Prakash Mishra, the learned AC to the learned Additional Advocate General-II refers to the order dated 12th February 1990 issued under the signature of the Deputy Commissioner, Palamau which reads as under:
3 LPA No. 161 of 2024 and analogous cases"fnukad 07-08-89 dks gqbZ cSBd ds fu.kZ;kuqlkj ,oa tkapksijkUr Mh0MCyw0lh0vkj0,0 ,oa lkeqnkf;d fodkl dk;ZØe ;kstuk vUrxZr fooj.kh&I esa p;fur efgykvksa dks] dh vLFkk;h :i esa xzke lsfodk ds in ij osrueku 1535&10&645&15&690 n0 jks0&15&765 iqujhf{kr osrueku 1975&25&1150&30&1540 rFkk le; le; ij jkT; ljdkj }kjk fn;k tkus okyh th0;k0 HkÙkk ,oa vU; HkÙks ij ;ksxnku dh frfFk ls fu;qDr fd;k tkrk gS rFkk muds irk ds lkeus vafdr iz[kaM esa inLFkkfir fd;k tkrk gSA budh lsok;sa fdlh le; fcuk iwoZ lwpuk ds lekIr dh tk ldrh gSA"
English Translation :
"As per the decision of meeting held on 07.08.1989 and after verification, the women selected under D.W.C.R.A. and Community Development Programme scheme as given in appendix-1 are temporarily appointed to the post of Gram Sevika in pay-scale of 1535-10-645-15- 690 Da. Ro.-15-765 (Revised pay-scale 1975-25-1150-30-1540) along with subsistence allowance and other allowances as admissible from time-to-time by the State Government from date of their joining and they are posted in the Block mentioned against their names. Their services can be terminated anytime without prior information."
8. The writ Court did not accepted the aforesaid stand taken by the State of Jharkhand and referred to the decisions in "Uptron India Ltd. v. Shammi Bhan" (1998) 6 SCC 538, "Basudeo Tiwary v. SKM University"
(1998) 8 SCC 19, "DTC v. DTC Mazdoor Congress" (1991) Suppl. SCC (1) 600 and "Rajendra Prasad Sharma v. State of Jharkhand & Ors." (2021) 4 JBCJ 662 (HC) and decided to interfere with the order of termination of the writ petitioners.
9. There is no dispute that the writ petitioners were appointed following the due procedure; pursuant to an advertisement issued on 8 th January 1989. The case pleaded by the writ petitioners was that they were appointed on vacant and sanctioned post of Gram Sevika and they were extended the benefits under the ACP/MACP schemes. These facts are not controverted by the State of Jharkhand and it is not brought on record that a temporary employee also can be given similar benefits as were provided to the writ petitioners. The writ petitioners continued to serve on the post of Gram Sevika for 29 years and this is not brought on record that any charge of misconduct was ever levelled against them. In our opinion, the plea of the State of Jharkhand that there was no sanctioned and vacant post of Gram Sevika on which the writ petitioners were appointed must be rejected for the simple reason that if a person has continued on a post for 29 years this must 4 LPA No. 161 of 2024 and analogous cases be inferred in law that there was a requirement for such a post. Now if the State of Jharkhand did not create such a post but continued an employee on such a post for long 29 years the order of termination must be held bad in law. In "Nihal Singh v. State of Punjab" (2013) 14 SCC 65 the Hon'ble Supreme Court observed as under:
"35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State.
36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is--the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks.
37. We are of the opinion that neither the Government of Punjab nor these public sector banks can continue such a practice consistent with their obligation to function in accordance with the Constitution. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] judgment cannot become a licence for exploitation by the State and its instrumentalities.
38. For all the abovementioned reasons, we are of the opinion that the appellants are entitled to be absorbed in the services of the State. The appeals are accordingly allowed. The judgments under appeal are set aside.
39. We direct the State of Punjab to regularise the services of the appellants by creating necessary posts within a period of three months from today. Upon such regularisation, the appellants would be entitled to all the benefits of services attached to the post which are similar in nature already in the cadre of the police services of the State. We are of the opinion that the appellants are entitled to the costs throughout. In the circumstances, we quantify the costs to Rs 10,000 to be paid to each of the appellants."5 LPA No. 161 of 2024 and analogous cases
10. As regards the stipulation in the order dated 12th February 1990, we would only indicate that such a stipulation would be contrary to the constitutional protection under Articles 14, 15 and 21 of the Constitution of India. In "D.K. Yadav v. J.M.A. Industries Ltd." (1993) 3 SCC 259 the Hon'ble Supreme Court held as under:
"13. In Delhi Transport Corpn. v. D.T.C. Mazdoor Congress [1991 Supp (1) SCC 600 : 1991 SCC (L&S) 1213] this Court held that right to public employment and its concomitant right to livelihood received protective umbrella under the canopy of Articles 14 and 21 etc. All matters relating to employment include the right to continue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the Constitution and the rules made under proviso to Article 309 of the Constitution or the statutory provisions or the rules, regulations or instructions having statutory flavour. They must be conformable to the rights guaranteed in Parts III and IV of the Constitution. Article 21 guarantees right to life which includes right to livelihood, the deprivation thereof must be in accordance with just and fair procedure prescribed by law conformable to Articles 14 and 21 so as to be just, fair and reasonable and not fanciful, oppressive or at vagary.
The principles of natural justice are an integral part of the guarantee of equality assured by Article 14. Any law made or action taken by an employer must be fair, just and reasonable. The power to terminate the service of an employee/workman in accordance with just, fair and reasonable procedure is an essential inbuilt of natural justice. Article 14 strikes at arbitrary action. It is not the form of the action but the substance of the order that is to be looked into. It is open to the Court to lift the veil and gauge the effect of the impugned action to find whether it is the foundation to impose punishment or is only a motive. Fair play is to secure justice, procedural as well as substantive. The substance of the order is the soul and the effect thereof is the end result.
14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice. In D.T.C. v. D.T.C. Mazdoor Congress [1991 Supp (1) SCC 600 : 1991 SCC (L&S) 1213] the Constitution Bench, per majority, held that termination of the service of a workman giving one month's notice or pay in lieu thereof without inquiry offended Article 14. The order terminating the service of the employees was set aside."
11. We also record our concurrence with the writ Court's opinion that the plea of shortage of finance could not have been a ground to terminate services of the Gram Sevika who had served for more than 29 years.
6 LPA No. 161 of 2024 and analogous cases12. For the foregoing reasons, we hold that the State action was arbitrary and rightly interfered by the writ Court.
13. Consequently, LPA No.161 of 2024, LPA No. 105 of 2024 and LPA No. 202 of 2024 are dismissed.
14. I.A. No. 3177 of 2024, I.A. No. 2153 of 2024 and I.A. No. 3886 of 2024 filed for stay of proceedings stand dismissed.
(Shree Chandrashekhar, A.C.J.) (Navneet Kumar, J.) Tanuj 7 LPA No. 161 of 2024 and analogous cases