Hindya Dhan Vs. Jharkhand State Electricity Board and ors. - Court Judgment

Excerpt:
service-recovery-cancellation of promotion with retrospective effect- promotion in question alleged to be forged-issue re-opened after laps of 25 years when petitioner had retired from service-letter in question was issued in year 1977 and till date no enquiry proceeding initiated nor rule 43(b) of pension rules invoked-order punitive in nature and involving civil consequences-impugned order self-contradictory when it imposes punishment and at the same time issues direction to verify legality and propriety of order of promotion of petitioner to post of head clerk in which he had worked for more than 25 years-impugned order arbitrary and accordingly quashed. - constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. - 8. the impugned order is self-contradictory when it imposes punishment and at the same time issues direction to verify the legality and propriety of the order of promotion of the petitioner to the post of head clerk in which he had worked for more than 25 years without even initiating any enquiry or disciplinary proceeding and the same is even otherwise unsustainable in the eyes of law being arbitrary, illegal, against the well settled cardinal principles of natural justice and thus violative of article 14 of the constitution of india.ajit kumar sinha, j.1. in the instant writ petition the petitioner prays for issuance of an appropriate writ, order or direction from this hon'ble court for quashing the office order no. 383, dated 3.11.2003 issued under the signature of general manager-cum-chief engineer, electrical supply area, jharkhand state electricity board, ranchi whereby and whereunder after retirement of the petitioner the promotion order of the petitioner has been cancelled with retrospective effect and the petitioner has been given to sanction retirement benefit and further order has been passed for recovery of the salary received as head clerk up to date of retirement.2. the facts, in brief, are set out as under:the petitioner joined the services of the board on 27.5.1996 as corresponding clerk and retired on 31.10.2002 as head clerk. till date of retirement there was no departmental proceedings pending against the petitioner and he was receiving the salary in the pay scale of rs. 5530-18-6970-225-11020/- and rs. 10,120/- approximately was the last pay actually drawn by the petitioner at the time of retirement.3. the main contention raised by the learned counsel for the petitioner is that he was promoted by board's office order no. 1538, dated 12.4.1977 to the post of head clerk and while working on the said post he passed the hindi noting and drafting examination which was informed to him by the divisional deputy director of rajbhasa department of the government. the petitioner was given selection grade scale vide officer order no. 136 dated 25.9.1992 and the letter itself addressed as head clerk. this was followed by super selection grade issued by electrical superintending engineer, gumla vide letter no. 839, dated 25.11.1997 followed by memo no. 5437 dated 16.12.1998 issued by general manager-cum-chief engineer showing the petitioner to be as head clerk.the counsel for the petitioner further submits that after working for more than 20 years on the post of head clerk and after having retired on 22.10.2002 the impugned office order no. 382 dated 3.11.2003 has been issued by the general manager-cum-chief engineer, electrical supply area, ranchi without even issuing any show cause or notice on that matter.4. the learned counsel for the respondents submits that after superannuation of the petitioner while scrutinizing his retiral dues, it came to the notice that the office order no. 1922 dated 30.4.1977 issued vide memo no. 705 by which the petitioner was given promotion on the post of head clerk is forged and has never been issued by the dy. personnel director, regional electricity board, ranchi although such entry has been made in the service book of the petitioner and thus, such entry in the service book was not proper. it has also been submitted that a letter was issued on 16.6.2003 to the petitioner to explain the same but he remained silent. it was in this background that the promotion order of the petitioner was cancelled and he was reverted back to his original post.5. i have considered the rival submission and the pleadings. the fact remains that the petitioner retired in the year 2002 and the alleged proceeding has been initiated only after his retirement and that also for an issue which relates to office order no. 1922 dated 30.4.1977. in the counter affidavit it has been stated that the said document was not in existence and thus it was forged. however, it is also admitted that in the service book it has shown to have been promoted and such entry was there in the service book of the petitioner. the order issued is on the face of it punitive in nature and cast stigma and involves civil consequences and no enquiry proceeding was even initiated nor the cardinal principles of natural justice has been complied with. however, a specific averment has been made that later a show cause notice after retirement was issued to the petitioner but he chose not to appear.6. the moot question for determination remains that the authority after lapse of nearly 25 years could have reopened the issue that also when the petitioner retired from service. the admitted fact remains that the letter in question was issued in the year 1977 and till date no enquiry proceeding has been initiated nor 43(b) of the bihar pension rule has been invoked nor the guidelines as provided therein has been followed. even otherwise, the issue is no more res-integra and the same has been decided time and again by a full bench judgment of this court reported in 2007 (4) jljr 459 (laxman prasad gupta v. the state of jharkhand and ors.) and at para-20 it has been held as under:20. in view of the above discussion, we come to the following conclusion. to sum up: in the light of the absence of any material to show that the excess amount was received by the petitioner on misrepresentation, collusion, fraud or negligence, the said excess amount cannot be recovered out of the retiral dues, after retirement, without following the procedure contemplated under rule 43(b) of the bihar pension rules. in this case the said procedure, which is mandatory, has not been followed. therefore, the action of the respondents for recovery of the amount from the retrial dues is not valid in law.7. the office order no. 383 dated 3.11.2003 has been issued after one year of retirement whereby the promotion order of the petitioner has been cancelled with retrospective effect which was given in the year 1977 and he has been reverted to the post of correspondence clerk with further order for fixation of salary in the scale of correspondence clerk with a direction for recovery of the salary received as head clerk up to date of retirement.8. the impugned order is self-contradictory when it imposes punishment and at the same time issues direction to verify the legality and propriety of the order of promotion of the petitioner to the post of head clerk in which he had worked for more than 25 years without even initiating any enquiry or disciplinary proceeding and the same is even otherwise unsustainable in the eyes of law being arbitrary, illegal, against the well settled cardinal principles of natural justice and thus violative of article 14 of the constitution of india.9. a full bench of this court while considering the similar issue on point of limitation reported in 2007 (4) jljr 466 (smt. normi topno v. the state of jharkhand and ors.) at para-30 held as under:30. if a departmental proceeding is not initiated by a competent authority while the government employee was in service; after retirement, it is only the state government which is empowered to initiate such proceeding under rule 43(b) subject to the limitation of four years from the date of occurrence.10. considering the aforesaid facts and circumstances of the case, this writ petition is allowed and the office order dated 3.11.2003 is quashed with no order as to costs.