IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 4867 of 2011 Dr. Awadh Kishore Lal, son of Late Ram Prasad Lal, resident of C/o Prof. Alakh Narayan Prasad, Harihar Singh Road, Manda Bagicha, Morabadi PO and PS Bariatu, District Ranchi. .... Petitioner Versus 1. State of Jharkhand.
2. Principal Secretary, Animal Husbandry and Fishery Department, Nepal House, P.O. & P.S.- Doranda, Ranchi.
3. Regional Director, Animal Husbandry and Fisher Department, South Chotanagpur Range, Nepal House, P.O. & P.S.- Doranda, Ranchi. .... Respondents --- CORAM : HON'BLE MR. JUSTICE PRAMATH PATNAIK --- For the Petitioner : Mr. Saurabh Shekhar, Advocate For the Respondents : Mr. Kumar Rahul Kamlesh, J.C to S.C II ----- 04/14.09.2015 In the accompanied writ application, the petitioner has inter-alia prayed for issuance of an appropriate writ/order/direction for quashing the notification as contained in Notification Number 243 dated 10.02.2011 whereby the petitioner has been dismissed from services with retrospective effect from 27.04.2009 and the petitioner has further prayed for issuance of an appropriate writ/order/direction commanding upon the respondents to forthwith release the arrears of subsistence allowance with effect from 27.04.2009 till 10.02.2011 along with interest.
2. The facts as delineated in the writ application, in a nutshell is that the petitioner while being posted as Touring Veterinary Officer, Senha, Lohardaga was put under suspension vide order dated 21.12.1998 as contained in memo number 1467 posted on the ground of his alleged involvement in a case being RC57(A)/96 with a direction for payment of subsistence allowance in pursuance to Rule 96 of the Service Code. From the date of suspension, the petitioner has been paid subsistence allowance till 23.04.2009 but thereafter the same has been withheld.
3. Being aggrieved by non-payment of subsistence allowance, the petitioner has made representation before the respondent authorities as evident from Annexure-1 to the writ application but the representation submitted by the petitioner failed to evoke any response from the respondent authorities. Subsequently, by virtue of issuance of notification number 243 dated 10.02.2011 the services of the petitioner has been dismissed with retrospective effect from 27.04.2009 on the ground of his conviction in connection with the case bearing number RC57(A)/96 as evident from Annexure-2 to the writ application.
4. Mr. Saurabh Shekhar, learned counsel for the petitioner has strenuously urged before the Court that Annexure-2 the impugned 2. order is not legally permissible in the eyes of law as it is against the mandate of Hon'ble Apex Court in the case of State Bank of Patiala and Another Vs. Ram Niwas Bansal (Dead) through L.Rs. as reported in AIR2014SC1264 5. Learned counsel for the petitioner has further submitted that by virtue of Annexure 2 dated 10.02.2011 the services of the petitioner has been dismissed from service but the petitioner was continued under suspension till the impugned order dated 10.02.2011, therefore, the petitioner is entitled to get subsistence allowance from 27.04.2009 to 10.02.2011. Learned counsel for the petitioner further submits that there is no concept of deemed dismissal in the service jurisprudence since the petitioner even though under suspension continued till 10.02.2011 as per the impugned order Annexure-2, the petitioner was entitled to subsistence allowance till the impugned order was issued. Learned counsel for the petitioner has further submitted that it appears from Annexure-B to the counter-affidavit that the learned Special Judge- V, CBI Cases, Ranchi intimated the Dy. Secretary, Govt. of Jharkhand, Animal Husbandry/Fishery Department, Ranchi vide letter dated 15.05.2009 regarding conviction of the petitioner and others and the reasons best known to the petitioner that the respondent authority sat over the matter and finally the impugned order vide Annexure-2 to the writ petition was passed on 10.02.2011 with a view to deprive petitioner from getting subsistence allowance for the period from 27.04.2009 to 10.02.2011.
6. Mr. Kumar Rahul Kamlesh, J.C to S.C II, learned counsel appearing for the respondents has vehemently contended that the writ petition is wholly misconceived. Learned counsel for respondent by referring to paragraph 5 of the counter-affidavit has submitted that the petitioner has been suspended from the post of T.V.O, Senha, Lohardaga in fodder scam case No. R.C.57 (A)/96- Pat vide memo no.1467 (Ni, Sha) dated 21.12.1998 of Animal Husbandry & Fisheries Department, Bihar, Patna. According to the report received from S.P., C.B.I, A.H.D., Ranchi the petitioner was charge sheeted and further suspended and the report dated 18.07.2003 has been annexed as Annexure-A to the counter- affidavit. It has further been submitted that the Case No. R.C. 57(A)/96- Pat has been disposed of by the learned Special Judge-V, CBI Cases, Ranchi and the following sentence has been awarded to the petitioner on 27.04.2009:- (i) Imprisonment for 5 years.
3. (ii) Fine of Rs. 5,00,000/- and (iii) In default of payment of fine 1 (one) year S.I. The photo copy of the letter No.1481 dated 15.05.2009 and letter No.270 dated 25.01.2010 has been annexed as Annexures-B and C to the counter-affidavit. It has further been submitted that it is settled law that in the matter of conviction, the employee has no right to continue in services and therefore, Article 311(2) of the Constitution of India has got no application. It has further been submitted that the Hon'ble Supreme Court in a matter reported in (1995) 3 SCC377(Dy. Director of Collegiate Education (Admn.) Madras Vrs. S. Nagoor Meera) wherein it has been held that the conviction and punishment in a case bearing number R.C. 57(A)/96-Pat, the petitioner has no right to continue in service and to get any salary/subsistence allowance with effect from 27.04.2009. With the aforesaid submissions, the prayer has been made by the learned counsel for the respondents that the petitioner is not entitled to subsistence allowance for the aforesaid period.
7. During course of argument, learned counsel for the petitioner has confined his prayer for payment of arrears of subsistence allowance from 27.04.2009 till 10.02.2011 and does not want to press the prayer for quashing of notification no.243 dated 10.02.2011 whereby the petitioner has been dismissed from services with retrospective effect from 27.04.2009.
8. Having heard learned counsel for the respective parties and on perusal of the documents on records, it appears that the petitioner is entitled to subsistence allowance, in view of the following facts, reasons and judicial pronouncements:- (i) Although the petitioner has been dismissed with retrospective effect from 27.04.2009 but the impugned order of punishment was passed on 10.02.2011, therefore, the petitioner is entitled to subsistence allowance till the impugned order of punishment Annexure 2 has been passed. (ii) Moreover, the issue pertaining to retrospective dismissal has been illuminatively dealt by the Hon'ble Apex Court in the case of State Bank of Patiala and Another Vs. Ram Niwas Bansal(Dead) through L.Rs. as reported in AIR2014SC1264 wherein paragraph nos. 14 and 15 reads as under:- 14. The three issues that eminently emerge for consideration are, (i) whether the employer Bank could have, in law, passed an order of dismissal with retrospective effect; (ii) whether the delinquent officer stood superannuated after completion of 4. thirty years as provided under the Regulations on 25.2.1992; and (iii) whether the legal heirs of the deceased-employee are entitled to get the entire salary computed till the actual passing of the order of dismissal, that is, 22.11.2001 or for that matter till the date of superannuation, that is, 25.2.1992.
15. Regard being had to nature of controversy, we shall proceed to deal with first point first, that is, whether the order of removal could have been made with retrospective effect. Mr. Patwalia, learned senior counsel appearing for the employee,has submitted that the disciplinary authority could not have passed an order of removal by making it operational from a retrospective date. He has commended us to a three- Judge Bench decision in R. Jeevaratnam v. State of Madras. In the said case, the appellant-therein instituted a suit for a declaration that the order of dismissal from service was illegal and void. The trial Court dismissed the suit and the said decree was affirmed in appeal by the High Court. One of the contentions raised before this Court that the order of dismissal dated October 17, 1950 having been passed with retrospective effect, i.e., May 29, 1949, was illegal and inoperative. This Court opined that an order of dismissal with retrospective effect is, in substance, an order of dismissal as from the date of the order with the superadded direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming that the second part of the order is invalid, there is no reason why the first part of the order should not be given the fullest effect. The said principle has been followed in The Gujarat Mineral Development Corporation v. Shri P. H. Brahmbhatt. (iii) In the service jurisprudence, there is no concept of deemed dismissal based on conviction in criminal cases without an order to that effect. Since in the instant case, the impugned notification of dismissal was issued on 10.02.2011, the petitioner was deemed to be continuing till the said date. In view of the aforesaid decision, the dismissal of petitioner takes effect from the date of notification i.e. 10.02.2011 not anterior to that date and, therefore, the petitioner is entitled to subsistence allowance with effect from 27.04.2009 till 10.02.2011.
9. On the conspectus of the facts and judicial pronouncements referred to hereinabove and the reasons stated in the foregoing paragraphs the petitioner is entitled to subsistence allowance with effect form 27.04.2009 till 10.02.2011. The respondents are directed to 5. make payment of subsistence allowance within a period of four months from the date of receipt/production of a copy of this order.
10. With the aforesaid observations and directions, this writ petition stands disposed of. (Pramath Patnaik, J.) RKM