Arun Kumar Mandal Vs. State of Jharkhand and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - he further submitted that according to the high court's direction as contained in annexure 2 dated 04.01.1999, at best a fresh proceeding could have been initiated against the petitioner that also when he was in service and not after his retirement.orderamareshwar sahay, j.heard learned counsel for the petitioner and the learned counsel for the state.1. though by order dated 07.04.2006, the respondents-state was directed to file counter affidavit, but no such counter affidavit has been filed as yet. learned counsel for the state submitted that he is prepared to argue the case on merit even without any counter affidavit since counter affidavit would not be required in the fact and circumstances of the case. accordingly, this writ petition is being disposed of with the consent of the parties at the stage of admission itself.2. the petitioner was working as an assistant in the sub divisional office at sahebganj. a departmental proceeding was initiated against him for certain charges and on the basis thereof he was awarded certain punishment vide memo no. 13 dated 04.01.1997. the petitioner challenged the said order of punishment before the patna high court in c.w.j.c. no. 3506 of 1997. the patna high court by its order dated 04.01.1999 as contained in annexure 2 to the writ petition, disposed of the said writ petition after noticing the fact that while passing the said impugned order dated 04.01.1997, the principle of natural justice was not followed and the order of break-in-service and withholding of three increments with cumulative effect was passed against the petitioner. the high court set aside the said order dated 04.01.1997 awarding punishment of break-in-service and withholding of three increments. however, liberty was given to authority concerned to proceed afresh in the mater in accordance with law.3. the petitioner, in the meantime, retired from service on 31.03.2001. it appears that after the retirement of the petitioner from service on 11.08.2001 a notice to show cause was issued to him asking to show cause regarding the recommendation made by the enquiry officer in the proceeding initiated. when no reply was received, another show cause notice dated 19.02.2002 was issued to the petitioner vide annexure 3 to show cause to which the petitioner replied vide annexure 4. thereafter, it appears that the respondents issued an office order as contained in annexure 1 dated 22.08.2003 whereby the concerned authorities partially modified/amended the earlier order of punishment dated 04.01.1997 and awarded the punishment of break-in-service in between the period 26.09.1994 to 12.09.1996 declaring it to be un-authorized absence of the petitioner and thereby awarded punishment of withholding one increment.4. learned counsel appearing for the petitioner submitted that the order impugned as contained in annexure 1 awarding punishment to the petitioner is illegal and invalid in law, since no fresh departmental proceeding was initiated against him and since the petitioner had already retired from service and therefore the respondents could not have pass such order without initiating a proceeding under rule 43(b) of the pension rules. he further submitted that according to the high court's direction as contained in annexure 2 dated 04.01.1999, at best a fresh proceeding could have been initiated against the petitioner that also when he was in service and not after his retirement.5. since the state has not filed any counter affidavit and therefore, the statements made in the writ petitioner remained uncontroverted. it is not denied that no proceeding under rule 43(b) of pension rules was ever initiated against the petitioner.6. from the facts stated above, it is apparent that the respondent took more than two years time for issuing the notice to show cause to the petitioner after the order of the high court passed on 04.01.1999 and it is only after more than five months of retirement of the petitioner from the service, the first notice to show cause was issued to him and thereafter again after about six months, the second notice to show cause was issued. therefore, there is apparent un-explained and inordinate delay and latches on the part of the respondents in taking action against the petitioner, pursuant to the order of the high court dated 04.01.1999. the respondent authority did not choose to take any action against the petitioner when he was in service and only after his retirement a fresh notice to show cause was issued to the petitioner that also in the month of august 2001 and then six months from the date of first notice, the second show cause notice was issued to him. the respondent authority should thanks themselves for such delay and latches on their part in taking action against the petitioner. the admitted position is that the impugned order has been passed on 22.08.2003 after more than two years from the date of retirement of the petitioner that too without initiating any proceeding under rule 43(b) of the pension rules. definitely the impugned order as contained in annexure-1 cannot be treated to be an order passed under rule 43(b) of the pension rules. the respondents could not have awarded punishment as contained in annexure 1 to the petitioner after his retirement from service without initiating any proceeding under rule 43(b) of the pension rules.7. accordingly, this writ petition is allowed and the impugned order as contained in annexure 1 dated 22.08.2003 is hereby quashed.

Judgment:
ORDER

Amareshwar Sahay, J.

Heard learned Counsel for the petitioner and the learned Counsel for the State.

1. Though by order dated 07.04.2006, the respondents-State was directed to file counter affidavit, but no such counter affidavit has been filed as yet. Learned Counsel for the State submitted that he is prepared to argue the case on merit even without any counter affidavit since counter affidavit would not be required in the fact and circumstances of the case. Accordingly, this writ petition is being disposed of with the consent of the parties at the stage of admission itself.

2. The petitioner was working as an Assistant in the Sub Divisional office at Sahebganj. A departmental proceeding was initiated against him for certain charges and on the basis thereof he was awarded certain punishment vide memo No. 13 dated 04.01.1997. The petitioner challenged the said order of punishment before the Patna High Court in C.W.J.C. No. 3506 of 1997. The Patna High Court by its order dated 04.01.1999 as contained in Annexure 2 to the writ petition, disposed of the said writ petition after noticing the fact that while passing the said impugned order dated 04.01.1997, the principle of natural justice was not followed and the order of break-in-service and withholding of three increments with cumulative effect was passed against the petitioner. The High Court set aside the said order dated 04.01.1997 awarding punishment of break-in-service and withholding of three increments. However, liberty was given to authority concerned to proceed afresh in the mater in accordance with law.

3. The petitioner, in the meantime, retired from service on 31.03.2001. It appears that after the retirement of the petitioner from service on 11.08.2001 a notice to show cause was issued to him asking to show cause regarding the recommendation made by the Enquiry Officer in the proceeding initiated. When no reply was received, another show cause notice dated 19.02.2002 was issued to the petitioner vide Annexure 3 to show cause to which the petitioner replied vide Annexure 4. Thereafter, it appears that the respondents issued an office order as contained in Annexure 1 dated 22.08.2003 whereby the concerned authorities partially modified/amended the earlier order of punishment dated 04.01.1997 and awarded the punishment of break-in-service in between the period 26.09.1994 to 12.09.1996 declaring it to be un-authorized absence of the petitioner and thereby awarded punishment of withholding one increment.

4. Learned Counsel appearing for the petitioner submitted that the order impugned as contained in Annexure 1 awarding punishment to the petitioner is illegal and invalid in law, since no fresh departmental proceeding was initiated against him and since the petitioner had already retired from service and therefore the respondents could not have pass such order without initiating a proceeding under Rule 43(b) of the Pension Rules. He further submitted that according to the High Court's direction as contained in Annexure 2 dated 04.01.1999, at best a fresh proceeding could have been initiated against the petitioner that also when he was in service and not after his retirement.

5. Since the State has not filed any counter affidavit and therefore, the statements made in the writ petitioner remained uncontroverted. It is not denied that no proceeding under Rule 43(b) of Pension Rules was ever initiated against the petitioner.

6. From the facts stated above, it is apparent that the respondent took more than two years time for issuing the notice to show cause to the petitioner after the order of the High Court passed on 04.01.1999 and it is only after more than five months of retirement of the petitioner from the service, the first notice to show cause was issued to him and thereafter again after about six months, the second notice to show cause was issued. Therefore, there is apparent un-explained and inordinate delay and latches on the part of the respondents in taking action against the petitioner, pursuant to the order of the High Court dated 04.01.1999. The respondent authority did not choose to take any action against the petitioner when he was in service and only after his retirement a fresh notice to show cause was issued to the petitioner that also in the month of August 2001 and then six months from the date of first notice, the second show cause notice was issued to him. The respondent authority should thanks themselves for such delay and latches on their part in taking action against the petitioner. The admitted position is that the impugned order has been passed on 22.08.2003 after more than two years from the date of retirement of the petitioner that too without initiating any proceeding under Rule 43(b) of the Pension Rules. Definitely the impugned order as contained in Annexure-1 cannot be treated to be an order passed under Rule 43(b) of the Pension Rules. The respondents could not have awarded punishment as contained in Annexure 1 to the petitioner after his retirement from service without initiating any proceeding under Rule 43(b) of the Pension Rules.

7. Accordingly, this writ petition is allowed and the impugned order as contained in Annexure 1 dated 22.08.2003 is hereby quashed.