1 A.C. (S.B.) No. 10 of 2014 … ... (An Appeal under Section 16 of the Jharkhand Education Tribunal Act, 2005). Daljeet Kaur ….. Appellant Versus 1. Guru Gobind Singh Education Society 2. Central Board of Secondary Education ….. Respondents WITH Cont. (Civil) No. 339 of 2015 Daljeet Kaur ….. Appellant Versus 1. Guru Gobind Singh Education Society 2. Central Board of Secondary Education ….. Respondents --------- For the Appellant : Mrs. M.M. Pal, Sr. Advocate. Mrs. Mahua Palit, Advocate. Mrs. Indranil Bhaduri, Advocate. For the Respondents : Mr. K.B. Sinha, Sr. Advocate. Mr. Amitav, Advocate. Mr. Radha Krishan Gupta, Advocate. --------- PRESENT HON'BLE MR. JUSTICE ANANT BIJAY SINGH --------- Reserved on :
14. 09/2017 Pronounced on :
03. 11/2017 1. Both the cases are heard together and are being disposed of by this common judgment.
2. Heard learned counsel for the parties.
3. Sole appellant has preferred this A.C. (S.B.) No. 10 of 2014, which was filed under Section 16 of the Jharkhand Education Tribunal Act, 2005, being aggrieved by the order dated 21.05.2014 passed by Hon'ble Mr. Justice (Retd.) S.K. Chattopadhyaya & Hon'ble Mr. A.C. Ranjan, Administrative Member, Jharkhand Education Tribunal, Ranchi in Case No. 31 of 2011 (JET), whereby and whereunder the application filed by the appellant for direction on the respondents to pay subsistence allowance w.e.f. 15.06.2011 i.e. the date of suspension, was dismissed.
4. The appellant has filed A.C. (S.B.) No. 10 of 2014 stating inter alia as follows: (i) That the appellant filed the Case No. 31 of 2011 (JET) before the JET for quashing the Paper Publication made in Dainik Jagaran Bokaro Edition dated 15.06.2011 by which 2 the petitioner came to know that she has been put under suspension vide notice dated 15.06.2011 by the President of the GGES, on a specific plea that the impugned suspension order has passed by way of punishment but in violation of principle of natural justice without giving power opportunity of being heard before the suspension order and even no order even been communicated to the petitioner in respect of the suspension order. (ii) That the petitioner / appellant challenged the suspension order claiming as illegal, void and without jurisdiction as much as the same was issued by the authority having no such authority to issue suspension order against the appellant without any guide line in respect of suspension as it has not been framed till date in respect of the service condition and hence until and unless the same is being framed the bye-laws of CBSC will follow. (iii) That the appellant while working as Principal Director in Guru Govind Singh Public School at Bokaro (GGPS) was transferred to MDS Guru Govind Singh Public School at Daltonganj by order dated 21.05.2011, the petitioner moved before the JET against the transfer order in Case No. 27 of 2011 (JET) & vide an order dated 27.05.2011 the transfer order was stayed and notice was issued on Respondents, on appearance of the Respondents on their submission, the interim stay was vacated on 07.06.2011 and immediately thereafter i.e. only after 07 days by the notice dated 15.06.2011, the petitioner was informed about her suspension order wherein it was categorically mentioned that she had disobeyed all the orders of the superiors including the order of Hon'ble JET till date which has been seriously viewed with it is gross misconduct on her part as such she is being placed under suspension with immediate effect i.e. 15.06.2011 with a note detailed order followed. (iv) That the appellant challenged that suspension order dated 15.06.2011 published in the Newspaper before the JET in Case No. 31 of 2011 (JET) which has been heard time to time, several orders have passed but not finalized and still it is pending awaiting final decision. During the pendency, the Respondent No. 1 filed its counter affidavit wherein a letter dated 15.06.2011 was annexed as Annexure-A and from the letter dated 15.06.2011 it will be evident that the appellant has been suspended after 3 holding that it has been proved that the petitioner are bent upon committing the misconduct having disobedience of the lawful order of her superiors. In that letter it has also been informed that considered the entire facts and circumstances Management is compelled to suspend her from service with immediate effect and he will get subsistence allowance as per the provision of the law, in that letter it was also informed that her station / H.Q. will be at Daltonganj and she will not leave the station / H.Q. without the permission of undersigned / President. (v) That the applicant / appellant filed rejoinder to the counter affidavit stating specifically that it is their own showing that the suspension order / letter dated 15.06.2011 was sent to MDM, GGPS Daltonganj though it was within the knowledge of the Respondents that the petitioner has not joined to her transferred place at MDM, GGPS Daltonganj and so far the proper publication it was submitted that it has been sent hurriedly without waiting for communication of the registered letter. So far the fixing her Head Quarter at Daltonganj it was submitted that arbitrarily her H.Q. have been fixed at Daltonganj during her suspension period i.e. her transferred place which is not sustainable in law and accordingly to the established law H.Q. cannot be changed during the suspension period and accordingly submitted that the order of fixing her H.Q. at Daltonganj i.e. the place of her posting by virtue of the transfer order dated 21.05.2011 is wholly illegal improper, discriminating and amounts to colourable exercise of power. (vi) That in her rejoinder it was categorically stated that according to the established rule and law when an employee is suspended, he or she is legally entitled for the subsistence allowance but no subsistence allowance has been paid to her for which she is facing difficulty in her survival and accordingly requested to give direction to pay the subsistence allowance as she can maintain herself and her dependents till the proceeding came to an end. (vii) That when even after repeated requests / prayer to pay her subsistence allowance due since 15.06.2011 i.e. the date of her suspension, no action and no order was passed, having no alternative the appellant filed an application before the JET on 31.01.2013 for issuance of an appropriate 4 order directing upon the respondents to pay subsistence allowance to the appellant which has not been paid since the date of her suspension and to pay forthwith the subsistence for the period from 15.06.2011 to till date, during the suspension period no subsistence allowances have been paid to the petitioner which is in sheer violation of the CBSE BYE Laws. As per CBSE Rule (Bye Laws) Rule 44(9) suspended employee is entitled for subsistence allowance but due to bias and arbitrariness no subsistence allowance has been paid for which she has been seriously prejudiced. In that petition it was also categorically mentioned that the appellant has not served with any charge sheet till that day nor the suspension order rejects her Head Quarter or place of reposting during suspension order. (viii) Further the case of the appellant / applicant is in terms of provisions of Section 8 and 9 of the Jharkhand Education Tribunal Act, an Interlocutory Application was filed on 31.01.2013 with a prayer for the issuance appropriate order / direction upon the respondent to start paying the subsistence allowance to the petitioner which has not been paid since the date of suspension and to forthwith pay the subsistence allowance of the suspension period from 15.06.2011 to till date during which the subsistence allowances have not been paid to the petitioner which is in sheet violation of the CBSE BYE LAWS. (ix) That the respondents filed their rejoinder on 25.05.2013 to the I.A. so filed by the petitioner for subsistence allowances interalia stating that though the petitioner depending upon Rule 44(9) i.e. subsistence allowance of the application Bye-laws of the CBSE but she has not followed the rule as according to the rule she requires to furnish a certificate to the effect that she is not engaged in any employment, business, profession or vacation but not furnished as such she cannot claim subsistence allowance. In that rejoinder, the respondents also submitted that the petitioner / appellant has no right for the subsistence allowances as she has not challenged the main suspension order rather she challenged only a press communication further mere as she has not filed her attendance at Daltonganj for a single day and for leaving Head Quarter she has not taken any permission and she never represented 5 before the President or to the School Managing Committee and for that the petitioner is not entitled for any subsistence allowance. (x) That the petitioner / appellant filed supplementary affidavit on 03.07.2013 stating specifically that for non- payment of subsistence allowance till 15.06.2011 the petitioner is facing serious financial hardships and non- payment of subsistence allowance is against the provision of CBSE BYE Law and the petitioner had / have not been employed anywhere and the same has been reported to the respondents though e-mail on 02.07.2013 and accordingly requested to pay subsistence allowance without any further delay. (xi) That the applicant / appellant had filed a writ petition bearing number W.P. (S) No. 7796 of 2011 before this Hon'ble High Court challenging the suspension order as by order dated 24.09.2011 the member of the JET expressed inability to hear the matter without Chairman but subsequently after the appointment of the learned Chairman when the JET was functioning, her case was listed and time to time it was heard accordingly I.A. was filed before this Hon'ble High Court to withdraw the writ petition and by order dated 24.07.2013 the writ petition was permitted to withdraw. (xii) That after the withdrawal order dated 24.07.2013, the appellant again filed S/A stating all the facts including the order dated 24.07.2013 and submitted further non- employment certificates though her representation dated 16.07.2013. (xiii) When the I.A. was pending for order so far subsistence allowance is concerned, the case No. 27 of 2011 wherein the transfer order dated 21.05.2011 was challenged has been dismissed by a judgment dated 10.02.2014 holding the transfer order is legal and proper and according to the decision of the Hon'ble Apex Court, the petitioner / appellant ought to have join Daltonganj first but not done. It is needless to say that immediately after the judgment dated 10.02.2014 passed in her transfer case, the petitioner proceeded to Daltonganj on 11.02.2014 to submit her joining but not allowed and even not allowed to enter the school premises and her joining application was not receipt / accepted, the petitioner stayed in the Hotel at Daltonganj for 6 three days i.e. from 11.02.2014 to 13.02.2014, but when even in spite of her repeated requests her joining was not accepted, she was not even allowed to put her signature in the register also, she returned back to Bokaro having no alternative however she sent her joining to the President through FAX and sent her letter dated 11.02.2014 alongwith the application before the Principal through registered post which they received and the respondent also replied the same. It is pertinent to mention that on 12.02.2014 when the Case No. 31/2014 (JET) was heard in respect of payment of suspension order, this fact was brought to the notice of the learned JET and it was also mentioned in the order dated 12.02.2004 and the petitioner also submitted an affidavit to that effect. (xiv) That on 16th April the I.A. was heard at length and order was reserved and on 21st May 2014, the order was pronounced whereby and whereunder the I.A. so far the petition for a direction to pay the subsistence allowance has been dismissed after holding no case has been made out to direct the respondents to pay subsistence allowance to the petitioner at this stage and the petitioner will be well advised to join at Daltonganj immediately and will stay there as suspended employee and thereafter will file a proper representation in accordance with law for payment of subsistence allowance. While dismissing the I.A. the learned Tribunal has held that her joining report so submitted at Daltonganj is not in tune of suspension order dated 15.06.2011 and she had submitted her joining report to the Post of Director Principal MDM, GGPS Daltonganj and she very cleverly had not stated the ward 'Suspended' in her joining report. (xv) That even after the order dated 21 st May 2014 in pursuance to the advice, the petitioner went Daltonganj on 27.05.2014 stayed there and went personally in the school in question with her joining report as suspended employee but the Principal not allowed to enter into the school even not accepted her joining even not allowed to put her signature on the visiting Register and having no alternative the petitioner returned back to Bokaro on 28.05.2014 after sending her application / joining by post before the President with her representation dated 27.05.2014. 7 (xvi) That in reply to her letter dated 03.06.2014, the President, GGES sent a letter dated 16.06.2014 wherein it has been alleged that she was not present at MDN, GGPS, Daltonganj to submit her joining and she was living at her residence of GGPS Campus, Sector-V/B Bokaro Steel City and from there and she was operating / manipulating about her joining. It is pertinent to mention that she made an objection against the allegation made against her through her reply dated 09.07.2014 stating specifically that she proceeded to Daltonganj to join on 27.05.2014, in the school in question the appellant was personally present in the gate of the MDN, GGPS Daltonganj but she was barred at the gate from entering the school and despite the order of the learned JET, she was not allowed to join and previously also she was facing the same problem when she was present personally at Daltonganj from 11.02.2014 to 14.02.2014 and it was duly informed to the President and it was also brought to the notice of the learned JET. (xvii) That the previously also appellant went to Daltonganj on 11.02.2014 to submit her joining at Daltonganj and stayed there in Hotel for three days i.e. from 11.02.2014 to 13.02.2014 but when joining was not accepted, she sent her joining to the President by registered post / FAX made representation before the President and narrating her personal difficulties to stay at Daltonganj a disturb area that also in Hotel being a suspended employee but even inspite of that no accommodation was provided to her and no subsistance allowance has been paid to her till date for which she is facing serious hardships. (xviii) That from the facts and circumstances stated above it will be evident that inspite of appellant repeated requests to accept her joining, the respondents not allowed to join at Daltonganj even as a suspended employee, neither the suspension order dated 15.06.2011 has been revoked nor subsistence allowance is paid as such all the actions and inactions of the respondents are illegal and is not sustainable in law.
5. Further the respondents have filed counter affidavit in A.C. (S.B.) No. 10 of 2014 on 24.03.2015, wherein it is stated that :- (i) That the instant appeal is not maintainable either in 8 law or in facts and the same is fit to be dismissed by this Hon'ble Court. Herein in this appeal, the applicant / appellant has challenged the order dated 21.05.2014 challenging the main case i.e. Case No. 31 of 2011 (JET) against the suspension case whereas the correct fact is that the Case No. 31 of 2011 is about the suspension matter filed by the applicant/ appellant in JET Court and the judgment is being awaited. This order dated 21.05.2014 (i.e. the impugned order) is in fact has been passed disposing the I.A. petition arising out of main case i.e. Case No. 31 of 2011 (JET). But herein in this appeal the appellant has not challenged the order disposing I.A. petition rather challenging the impugned order treating to be passed in the main Case which will create difficulty, if the main judgment is passed in Case No. 31 of 2011 (JET). (ii) That the learned Jharkhand Educational Tribunal Ranchi after considering the materials available on the record as well as considering the law points involved in this case, have been pleased to pass the impugned order and there is no illegality in the impugned order and as such the instant appeal is not maintainable and is fit to be dismissed by this Hon'ble Court with costs. (iii) That the appellant was working as Principal in Guru Gobind Singh Public School, Sector V/B, Bokaro Steel City, Bokaro. In the beginning the appellant was appointed as a Vice Principal on 31.03.2004. Later on, she was promoted as Principal. In her offer letter vide paragraph no. 12 it was made clear that “you will have to make your own arrangement for accommodation at present. House rent Allowance will, however, be paid to you as per rules of the school.” (iv) That on 21.05.2011 the appellant was transferred as Prnicipal / Director (Academic) to MDN, Guru Gobind Singh Public School at Daltonganj. (v) That that instead of joining at Daltonganj, the appellant challenged the order of transfer dated 21.05.2011 before the Jharkhand Education Tribunal Ranchi, vide Case No. 27 of 2011 (JET). (vi) That the Hon'ble Jharkhand Education Tribunal, Ranchi had been pleased to pass an order on 27.05.2011 to issue notice upon the respondents for filing reply and till the appearance of the respondent, the order of transfer was 9 stayed upto the next date of hearing i.e. 07.06.2011. On 28.05.2011 in continuation of the transfer order, the appellant was released from GGPS Bokaro school and her last pay certificate was sent to MDN, GGPS Daltonganj school. Therefore from that date she became the employee of Daltonganj school for all purposes and not the Bokaro school. (vii) That again Case No. 27/11 (JET) was heard by the Hon'ble Jharkhand Education Tribunal, Ranchi on 07.06.2011 and after hearing the counsels of both the parties, the Hon'ble Jharkhand Education Tribunal, had been pleased to withdraw the order of stay in terms of order dated 07.06.2011. (viii) That even after passing the order by the Hon'ble Jharkhand Education Tribunal, Ranchi on 07.06.2011, the appellant did not join at MDN, GGPS Daltonganj in compliance of the order of the transfer dated 21.05.2011. (ix) That thereafter the appellant was directed by the President of the Society vide letter dated 09.06.2011 and 12.06.2011 to join immediately at Daltonganj, failing which disciplinary action may be taken against her. (x) That when the appellant again did not join at Daltonganj on her place of posing, then the Management was left with no alternative than to place the appellant under suspension and accordingly the appellant was placed under suspension by the President of the Society on 15.06.2011. Notice to the said effect was also published in daily newspaper in Dainik Jagran on 16.06.2011 and detailed order of suspension was also sent to the appellant by various modes. The appellant did not challenged the suspension order dated 15.06.2011 as yet but she has challenged the communication published in the press only vide Annexure-1 of appeal. (xi) That it would be evident from the facts stated above, that from the passing the order of suspension i.e. 15.06.2011 upto passing the impugned order by the Hon'ble Jharkhand Education Tribunal, Ranchi on 21.05.2014, the appellant did not went to Daltonganj to join the school as a suspended employee. (xii) That it would not be out of place to mention here, that Case No. 27 of 2011(JET) filed by the appellant against her 10 transfer order dated 21.05.2011 has already been dismissed by the Hon'ble Jharkhand Education Tribunal, Ranchi vide judgment dated 10.02.2014. The appellant has not challenged this judgment dated 10.02.2014 by not filing any appeal before this Hon'ble Court till date as such, it is submitted that the judgment has attained the finality. It is submitted that, if the judgment of transfer case has attained the finality for all practical purposes, the appellant chooses to be the employee of Daltonganj school.
6. Further, it appears that A.C. (S.B.) No. 10 of 2014 was filed before this Court on 17.04.2014 and it was listed on 16.12.2014 and was adjourned for March, 2015 and again the matter was listed on 17.03.2015 and prayer was made on behalf of the appellant to amend the name of President / Respondent. Permission was accorded and the matter was directed to be listed on 25.03.2015. On 25.03.2015, the following order was passed: (i) The present appeal is preferred against the order dated 21st May, 2015 passed by the learned Jharkhand Education Tribunal, Ranchi in Case No. 31 of 2011 (JET) whereby the prayer made by the appellant for getting subsistence allowance w.e.f. 15.06.2011 has been disallowed. (ii) Heard the learned counsel appearing for the appellant as well as the respondents. Perused the materials placed on record including the order passed by the learned Jharkhand Education Tribunal. (iii) Upon hearing the submissions made by the learned Sr. Counsel for the parties and on perusal of the various grounds taken in the appeal as well as the legal propositions as set out in various decisions, reported in 2014 (1) JLJR SC85 (2000) 7 SCC90 2002 (3) JLJR SC148 1982 Lab I.C. 1140 and 2007 (4) JCR183it appears that instant appeal requires consideration and the same is ordered to be admitted for hearing. (iv) The learned Sr. Counsel for the respondents has also cited the decisions reported in 1995 (2) PLJR690 AIR1997S.C. 1905, (2004) 1 SCC281and (2005) 8 SC211 In support his case. The same will also be considered at the time of hearing of the appeal. (v) Having regard to the facts and circumstances of the present case, by way of ad-interim order, respondents are 11 directed to make payment of subsistence allowance to the appellant with effect from 11.2.2014 within a period of three weeks from the date of receipt of this order. So far as prayer for payment of subsistence allowance with effect from 15.6.2011 is concerned, the same will be considered at the time of hearing of the appeal. (vi) Put up this case for final hearing on 13th May, 2015.
7. Thereafter, the matter was again directed to be listed for final hearing on 23.06.2015. The matter was listed on 23.06.2015 before Hon'ble Mr. Justice Amitav K. Gupta and following order was passed:- (i) Learned counsel appearing on behalf of the appellant has submitted that after hearing the matter ad-interim order was passed on 25.03.2015 by His Lordship, Hon'ble Mr. Justice P.P. Bhatt with a direction to pay subsistence allowance with effect from 11.02.2014 within a period of three weeks but till date order has not been complied with and the respondents have filed the Interlocutory Application for modification of the same order. (ii) Learned counsel appearing on behalf of the respondents has submitted that he has filed I.A. No. 2763 of 2015 on the ground that the present petition has become infructuous and I.A. Nio. 3143 of 2015 has been filed for modification of the order dated 25.03.2015. (iii) Since the application has been filed with respect to order dated 25.03.2015 passed by His Lordship Hon'ble Mr. Justice P.P. Bhatt, let the matter be placed before Hon'ble Mr. Justice P.P. Bhatt for needful after obtaining the approval of Hon'ble the Chief Justice. (iv) Again it was listed on 06.11.2015 and it was directed to list this case Contempt (Civil) Case No. 339 of 2015 on 04.12.2015 under the heading “For Orders”.
8. It appears that in the meanwhile Cont. (Civil) Case No. 339 of 2015 was filed on 18.06.2015 before this Court praying inter alia as follows:- “That this is an application for initiation of contempt proceeding against the Opposite Party No. 1 for willful disobedience and for non-compliance of the order and direction dated 25.03.2015 passed in A.C. (S.B.) No. 10 of 2014 passed by Hon'ble Mr. Justice P.P. Bhatt whereby and whereunder the opposite party was directed to make payment of subsistence allowance to the petitioner w.e.f. 12 11.2.2014 within a period of three weeks from the date of the receipt of that order. The date of commencement of contempt started from 29.04.2015.”
9. The Contempt Case was listed on 07.08.2015 and notices were issued to respondents. Thereafter, the matter was listed on 11.09.2015 and following order was passed in Cont. Case (Civil) No. 339 of 2015:- (i) The entire controversies arise on account of suspension of the petitioner pending enquiry and then on account of termination for non-joining of the petitioner at the place of transfer i.e. Daltonganj. (ii) With a view to resolve the entire controversies, a suggestion has been put to the learned counsel appearing for the parties, especially, the learned counsel for the Opp. Party No. 1 as to whether it is possible for the management to consider for revocation of termination order, if the petitioner is ready and willing to join at the place of posting. Upon which, the learned senior counsel, appearing on behalf of Opp. Party No. 1, seeks at least 15 days' time to take instruction in this regard. (iii) Time, as sought for, is granted. (iv) List again on 9.10.2015.
10. Thereafter, both the cases i.e. Cont. Case (Civil) No. 339 of 2015 and A.C. (S.B.) No. 10 of 2014 was listed on 20.11.2015 and it was directed to list both the cases on 4 th December, 2015. The matter was again listed on 18.12.2015, where I.A. No. 5853 of 2015 was filed on behalf of the opposite parties. In I.A. No. 5853 of 2015 the following order was passed:- (i) This interlocutory application has been moved by opposite parties stating inter alia that in view of the judgment of the Hon'ble Supreme Court, the whole petition as well as ad interim order dated 25.03.2015 passed by this Court has become infructuous. (ii) As prayed, this application will be taken up on 08 th January, 2016.
11. That further in Cont. Case (Civil) No. 339 of 2015 following order was passed: (i) Since, the interim order dated 25.3.2015 passed by this Court in A.C. (S.B.) No. 10 of 2014 has not been complied with till date and therefore, by way of last chance, 13 respondents are directed to deposit subsistence allowance as ordered by the Court on or before 8 th of January, 2016 before the Registry of this Court, failing which, the President / Secretary of the Management shall remain present before this Court on 8th January, 2016. (ii) List again on 08th January, 2016.
12. That thereafter, the matter was listed on 29.01.2016 and on the prayer, the matter was directed to be listed on 05.02.2016. On 05.02.2016, following order was passed: (i) Released from my Court as assigned case. (ii) Place it before the appropriate Bench after obtaining necessary permission from Hon'ble the Chief Justice. (iii) However, Mrs. M.M. Pal, learned senior counsel referred to para-6 and 7 of the reply to the show cause. (iv) Learned senior counsel appearing for the respondents seeks sometime for clarification with regard to the averments made in paragraph nos. 6 and 7 to the said reply to the show cause.
13. Further, I.A. No. 106 of 2016 was filed on behalf of opposite party no. 1 / respondent no. 1 stating inter alia that the opposite party no. 1 have complied with the order made on 18.12.2015 and have deposited the amount to the Registry of this Hon'ble Court on 05.01.2016 vide D.D. No. 597152 dated 31.12.2015, though the order has been complied with but it is prayed that the amount deposited on 05.01.2016 as subsistence allowance vide D.D. No. 597152 dated 31.12.2015 before the Registry of this Hon'ble Court, the opposite party no. 1 will be obliged, if this Hon'ble Court will pass the order that the amount deposited in the Registry of this Hon'ble Court may not be disbursed till the final disposal of the A.C. (S.B.) No. 10 of 2014 out of which this Contempt case has arisen.
14. It appears that in A.C. (S.B.) No. 10 of 2014 & Cont. (Civil) Case No. 339 of 2015, large number of I.As. have been filed on behalf of the parties, which are as follows:- (i) I.A. No. 4154/2014 in A.C. (S.B.) No. 10 of 2014 has been filed on behalf of the appellant with a prayer to stay the operation of order dated 21.05.2014 passed by learned Jharkhand Education Tribunal in Case No. 31 of 2011 (JET). It appears that no order has been 14 passed in the I.A. (ii) Further, I.A. No. 2763/2015 has been filed on 07.05.2015 on behalf of the respondent no. 1 with a prayer to pass an order in the light of the decision passed in the case of Rajinder Mittal Vs. A.K. Garg and other reported in (2011) 14 SCC587 (iii) Further, I.A. No. 3143 of 2015 has been filed on behalf of the respondent no. 1 on 08.06.2015 with a prayer to modify the ad interim order dated 25.03.2015 passed in the case of A.C. (S.B.) No. 10 of 2014 in the light of judgment reported in 2014 (1)JLJR SC85 (iv) Further, I.A. No. 106 of 2016 has been filed in Cont. Case (Civil) No. 339 of 2015 on behalf of respondent no. 1 stating that the opposite party no. 1 has complied with the order dated 18.12.2015 passed in Cont. Case (Civil) No. 339 of 2015 and order dated 25.03.2015 passed in A.C. (S.B.) No. 10 of 2014 and has deposited the amount in the Registry of the Hon'ble Court, opposite party no. 1 has deposited the amount and with a prayer to pass an order to the extent that the amount may not be disbursed till final disposal of A.C. (S.B.) No. 10 of 2014.
15. Learned counsel for the appellant has categorically stated that appellant has challenged the order dated 21.05.2014 passed by the learned Jharkhand Education Tribunal in Case No. 31 of 2011. (i) An I.A. has been filed on behalf of the appellant for directing the respondents to pay the subsistence allowance from 15.06.2011 i.e. from the date of suspension mainly on the ground that in terms of Rule 44(9) of the CBSE Rules, she was entitled for subsistence allowance at an amount equal to one half of the pay last drawn by her and in addition to such pay, dearness allowance at an appropriate to be paid in the same manner as the salary, which has been dismissed by the Tribunal. (ii) It was further stated that learned Tribunal has erroneously relied on the judgment of the Hon’ble Supreme Court rendered in the case of State of Punjab & Ors. Vrs. Dharam Singh reported in AIR151997 SC1906and in the case of U.P. State Textile Corporation Limited Vrs. P.C. Chaturvedi reported in 2005 (8) SCC211holding that appellant did not remain in Headquarters in order to earn her subsistence allowance, nor she marked her attendance, rather she has furnished unemployment certificate. (iii) It was submitted by learned counsel for the appellant that learned Tribunal has failed to appreciate the provisions of Rule 44 (9) of the CBSE Rule and also failed to appreciate that not a single penny was paid to her as subsistence allowance since 15.11.2011 and she was asked to stay in Daltonganj, a naxal infected area and there was no proper accommodation and the appellant is a lady. These facts have not been considered. So the impugned order is fit to be set aside. (iv) Despite categorical direction given by this Court under order dated 25.03.2015, whereby respondents were directed to make payment of subsistence allowance to the appellant w.e.f. 11.02.2014 within a period of three weeks and the matter was directed to be listed on 13.05.2015, but the order was not complied by the respondents. So, a contempt proceeding was initiated by the appellant in Cont. (Civil) Case No. 339 of 2015. (v) It was also submitted on behalf of the appellant that under the CBSE bye-laws, suspended employees were not required to mark attendance or to stay in Headquarter, which may be considered as precedence in order to get the subsistence allowance. (vi) Learned counsel for the appellant further relied on the judgment of the Hon’ble Supreme Court in the case of State of Bihar and others Vrs. Arbind reported in 2014 (1) JLJR (SC) 85, wherein Hon'ble Supreme Court has held denial of subsistence allowance for not staying at Headquarters is illegal and is in violation of Article 21 of the Constitution of India and suspended employee cannot be compelled to mark attendance.
16. On the other hand, learned counsel for the respondent while supporting the impugned order has submitted that 16 learned Tribunal has considered the judgment passed in the case of State of Bihar and others Vrs. Arbind (supra) and also referred to para-7, 8, 9, 10, 11 of the impugned order and submitted that all the aspects have been considered including behaviour and attitude of the appellant and her non- cooperation and the learned Tribunal has rightly denied subsistence allowance to the appellant. It is also a fact that Annexure-1 is a notice dated 15.06.2011 published in Dainik Jagran on 16.06.2011, whereby it was informed that despite the appellant was transferred on 21.05.2011 to Daltonganj, learned JET has not been pleased to extend the order dated 27.05.2011 passed in Case No. 27 of 2011 (JET) and she was put under suspension. The appellant has not challenged, nor she has brought on record by filing the order of suspension and also subsequently, she has made out a case that under pressure, she had gone to join at Daltonganj, but her joining was not accepted and she stayed in Hotel for three days from 11.02.2014 to 13.02.2014 and she joined on 11.02.2014, but she was not allowed to work and she intimated the President through FAX which is her own ipse dixit which was not accepted and impugned order was passed. It was further submitted that in the meanwhile, suspension order was affirmed by learned Tribunal and she has filed A.C. (S.B.) No. 01 / 2016 challenging the final order dated 16.04.2015 which is still pending before this Court. It is further submitted that order dated 25.03.2015 reveals that although the respondents have relied upon the judgment reported in (1995) 2 PLJR690Ganesh Ram AIR1997SC1905(2004) (1) SCC281 (2015) 8 SCC211 but these judgments were not considered by this Court and directed the respondents to deposit the amount and despite I.A. No. 2763 of 2015 was filed for early hearing, A.C. (S.B.) No. 10 of 2014 was not heard and under duress, as contempt application was filed, respondents have deposited the amount of Rs. 1,25,000/-. So now it was submitted that no case on merits is made out and the Contempt (Civil) No. 339 of 2015 is fit to be dismissed.
17. It was further submitted on behalf of the respondents that as final order has been passed by the learned Tribunal confirming the suspension of the petitioner and A.C. (S.B) No. 17 01 of 2016 is pending before this Court. So, A.C. (S.B.) 10 of 2014 has become infructuous, so it is fit to be dismissed.
18. After hearing the parties and after going through the written averments made in the A.C. (S.B.), Contempt and different I.As filed on behalf of both petitioner and respondents, the following facts emerges:- (i) The appellant Daljeet Kaur posted and working as Principal Director in Guru Govind Singh Public School (GGPS) was transferred to MDS, Guru Govind Singh Public School, Daltonganj by order dated 21.05.2011. (ii) The appellant Daljeet Kaur challenged the order of transfer before the JET in Case No. 27 of 2011 (JET), which was stayed under order dated 27.05.2011 and notices were issued for appearance of respondents. (iii) After hearing, the interim stay was vacated by JET on 07.06.2011 and immediately thereafter i.e. only after 07 days by notice dated 15.06.2011, the appellant was informed about her order of suspension. (iv) The appellant Daljeet Kaur only challenged the paper publication made in Dainik Jagran, Bokaro Edition dated 16.06.2011 whereby it was informed that she has been put under suspension vide notice dated 15.06.2011. (v) Despite parties have appeared and matter has been finally decided, the appellant, reason best known to her, has not brought on record through I.A. the order of suspension by making prayer for amendment and for incorporating the suspension order. (vi) There is dispute about appellant with regard to joining new assignment at Daltonganj and stayed at Daltonganj, as this fact has been disputed by the respondents and only in support of the submissions through the affidavit, certain documents have been brought by the appellant in order to substantiate that she had gone and had joined the post and had stayed for three days in Hotel, but due to law and order problem and being a female and no accommodation was provided at Daltonganj in School, she had returned 18 back and was residing in Bokaro. (vii) The respondents have denied these facts by filing counter affidavit stating that these disputed facts can be settled in a proper proceedings only and not in a writ court. (ix) Further the learned Tribunal while passing the order dated 21.05.2014 has considered all aspects of the matter relied on the judgment of the Patna High Court and has come to a conclusion that the appellant was not residing at the Headquarters, Daltonganj, so she was not entitled for subsistence allowance. (x) Further, the facts of the case given in the judgment reported in 2013 (16) SCC615in the case of State of Bihar and Another Vs. Arbind, is distinguishable inasmuch as in the case before the Supreme Court, the respondent therein was put under suspension under order dated 26.05.1997 and departmental proceeding was initiated on certain charges and his headquarter during suspension period was fixed at office of the District Education Officer, West Champaran and the respondent stayed at the headquarters till 03.10.1997 and subsequently left the place as he was not in a position to remain there due to paucity of money, as his salary was not paid for one year and further no subsistence allowance was paid. Further the respondent therein had filed a representation for release of salary, but no order was passed. Further the respondent was acquitted in criminal case by the learned trial Magistrate on 18.04.2000. Further, the respondent did not participate in departmental proceeding and it continued ex-parte and on the basis of report, order of dismissal was passed on 30.09.2000. Thereafter, he had filed writ application before the Patna High Court in CWJC No. 5210 of 2002 which was dismissed by learned Single Judge and the matter was taken in LPA and before Division Bench, a plea was taken that since the charges, both in the 19 criminal case and departmental proceeding, were similar in nature and in criminal case, he was acquitted, emphasis was laid on the factum of non-payment of salary for one year which was payable to him and further on non-release of subsistence allowance. In the backdrop of aforesaid case, the Hon’ble Supreme Court held that the respondent was entitled for the salary / subsistence allowance.
19. But in the instant case, whether the appellant has joined the new assignment and stayed there is disputed and no proceeding has been initiated where evidence can be led on this point. Learned JET has considered the aforesaid judgment in detail and further relying on the judgment in case of State of Punjab & Ors. Vs. Dharam Singh, reported in AIR1997SC1906and in the case of U.P. Textile Corporation Limited Vs. P.C. Chaturvedi reported in 2005 (8) SCC211 has rightly dismissed the application.
20. So far contempt application is concerned, the learned Single Judge on 18.12.2015 has passed order in Cont. Case No. 339 of 2015 without adjudicating whether prima facie contempt is made out or not and thereafter the respondent has complied with the order and deposited the amount of Rs. 1,25,000/-.
21. Further from perusal of order dated 25.03.2015 passed in A.C. (S.B.) No. 10/2014, it appears that learned counsel for the parties have placed several rulings, judgments reported in 2014(1) JLJR SC85 (2000) 7 SCC90 2002 (3) JLJR SC148 1982 Lab I.C. 1140 and 2007 (4) JCR183 but on 25.03.2015, respondents have also relied on the decisions reported in 1995 (2) PLJR690 AIR1997S.C. 1905, (2004) 1 SCC281and (2005) 8 SC211 This case laws relied upon by the respondents were not considered and by way of ad-interim order directed to make subsistence allowance we.f. 11.02.2014 within a period of three weeks, as the learned JET has finally decided the matter and upheld the communication of the suspension order published in Dainik Jagran against which A.C. (S.B.) No. 01 of 2016 is pending before this Court. 20 22. After hearing the parties, I am of the considered view that there is no illegality in the order passed by the learned JET dated 21.05.2014, by which the subsistence allowance has been denied to the appellant and accordingly, this A.C. (S.B.) No. 10 of 2014 is dismissed.
23. Further, since no contempt is made out, I am not inclined to admit the Contempt application. Accordingly, Contempt Case No. 339 of 2015 is also dismissed.
24. Further, I.A. Nos. 4154/2014, 2763/2015, 3143/2015, 106/2016 also stand disposed of.
25. Further, Registrar General, Jharkhand High Court, Ranchi is directed to release the amount of Rs. 1,25,000/- within four weeks from the date of receipt / production of the order in favour of respondent no.1.
26. There shall be no order as to cost. (Anant Bijay Singh, J.) Jharkhand High Court, Ranchi Dated:
03. 11.2017 Sunil/NAFR