The disciplinary authority has the powers to impose a penalty of dismissal upon the delinquent even after his attaining the age of superannuation: Jharkhand High Court
Since the disciplinary proceedings were conducted when the employee was working, the disciplinary authority has the authority to place the punishment of dismissal/major penalty on the respondent even though he has reached the age of superannuation. Because of the legal fiction provided under the rules, it can be completed in the same manner as if the employee had remained in service after superannuation. The judgement was passed by the High Court of Jharkhand in the case of Bhaswati Sharma vs The State of Jharkhand [W.P.(S) No.3284 of 2012] by Single Bench consisting of Hon’ble Justice Deepak Roshan. The instantaneous writ application has been preferred by the petitioner praying therein for quashing the charge sheet issued under letter No.548, and also for quashing the letter No.1159; whereby the petitioner has been issued second show-cause notice as regards the report of the enquiry officer finding that the appointment of the petitioner was made irregular. Petitioner has also challenged the enquiry report. Learned counsel for the petitioner argued that after retirement the respondent cannot continue with the departmental proceeding. He lastly submits that the departmental proceeding which was initiated and the second show-cause which was issued was stayed by this and the respondents were restrained from taking any final decision on the departmental proceeding and now since the petitioner has retired no action can be taken against this petitioner. Learned counsel for the respondent submits that the petitioner was illegally appointed without the proper procedure of appointment. There was no advertisement published by the department. Neither any competent appointment committee has recommended the petitioner for appointment nor was an interview held for the same. He lastly submits that other similarly situated teachers who were also illegally appointed have been terminated and the petitioner could not take benefit of stay order by this Court and the instant writ application deserves to be dismissed as the initial appointment itself is illegal without following proper procedure of appointment. While Relying upon The Apex Court judgment Mahanadi Coalfields Limited Vs. Rabindranath Choubey, wherein it was held that “the disciplinary authority has the powers to impose a penalty of dismissal upon the delinquent even after his attaining the age of superannuation, because of the legal fiction provided under the rules, it can be completed in the same manner as if the employee had remained in service after superannuation.”
 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.32812 Bhaswati Sharma … … 1. The State of Jharkhand through its Secretary Human Resources Development Department Government of 2. Director Secondary Education) Government of Jharkhand Ranchi. Jharkhand Ranchi. 3. District Education Officer Sahibganj. … … Respondents CORAM HON BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner :Mr. Rajeeva Sharma Sr. Adv. For the Res. State :Mr. Shray Mishra A.C. to G.A. III Through: Video Conferencing Heard learned counsel for the parties through 15 16.03.2021 V.C. The instant writ application has been preferred by the petitioner praying therein for quashing the charge issued under letter No.548 dated 18.02.2010 Annexure 9) and also for quashing the letter No.1159 dated 03.05.2012 whereby the petitioner has been issued second show cause notice as regards the report of the enquiry officer finding that the appointment of the petitioner was made irregular. Petitioner has also 11). challenged the enquiry report dated 21.06.211 clearly stipulates that if there is misconduct or pecuniary loss to the government then only the said provision can be invoked. retirement the respondent State cannot continue with the departmental proceeding. He lastly submits that the departmental proceeding which was initiated and the second show cause which was issued was stayed by this Court vide order dated 28.08.2012 and the respondents were restrained from taking any final decision on the departmental proceeding and now since the petitioner has retired no action can be taken against this petitioner. In nutshell Mr. Sharma argued that after Mr. Shrey Mishra learned counsel for the respondent State submits that the petitioner was illegally appointed without proper procedure of appointment in the year 1985 on the post of Assistant Teacher in Rajkiya Kannya Madhya Vidyalaya Sahibganj by Inspector of School cum Deputy Director of Education. further submits there was no advertisement published by the department. Neither any competent appointment committee has recommended the petitioner for appointment nor was any interview held for the same. As a matter of fact the issue with regard to Mr. Mishra further submits that in her B.Ed illegal appointments was further investigated by the C.B.I and the then District Education Officer enquired the matter of appointed teacher of Rajkiya Kannya Madhya Vidyalaya and found irregularity and illegality in the appointment. Further on perusal of the show cause reply of the writ petitioner the District Education Officer Sahibganj found that the petitioner has been illegally appointed without following the departmental procedure of appointment and has also been sanctioned first time bound promotion. certificate no name of college was mentioned meaning thereby to say it was not known from which college the petitioner has completed B.Ed degree and due to all these facts charge sheet was issued and the departmental proceeding was conducted and when the second show cause notice was issued to the petitioner before imposing the order of punishment this petitioner challenged the second show cause notice along with the enquiry report etc. which was since stayed by this Court no final order can be passed. He lastly submits that other similarly situated teachers who were also illegally appointed have been terminated and the petitioner could not take benefit of stay order by this Court and the instant writ application deserves to be dismissed as the initial appointment itself is illegal without following proper procedure of appointment. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits it appears that the appointment of this petitioner illegal inasmuch as no proper procedure appointment was followed. No advertisement was published and the petitioner was appointed by the then School Inspector cum Deputy Director of Education. From counter affidavit it further appears that the B.Ed certificate which was submitted by this petitioner the name of the college has not been mentioned. It further transpires that there was also a C.B.I enquiry in the light of mass illegal appointments. All these facts which have been mentioned in the counter affidavit have not been rebutted by the petitioner by way of any rejoinder. the only argument advanced by the learned senior counsel for the petitioner is that since a development took place and the petitioner has already retired on 31.01.2018 the department is prevented from taking any further action. With regards to illegal appointment the Hon’ble Apex Court in the case of State of Orissa and Ors. Vs. At this stage it is pertinent to mention here that Mamata Mohanty reported in 3 SCC 436 at paragraph No.37 and 38 has laid down the law as under: 37. It is a settled legal proposition that if an order is bad in its inception it does not get sanctified at a later stage. A subsequent action development cannot validate an action which was not lawful at its inception for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law in violation of which he has obtained the benefits. If an order at the initial stage is bad in law then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. 38. The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore continuation of a person wrongly appointed on post does not create any right in his favour. The issue is now no more res integra that if the initial appointment was not made by following due process of selection as envisaged by the relevant rules the appointment itself will be illegal and the averments made in the counter affidavit has not been controverted by the learned counsel for the petitioner either in the argument or filing any rejoinder there was no open advertisement and no due process of selection was followed as envisaged in the relevant Rules. Since stay was granted in favour of the petitioner as such no final order could be passed by the department in the departmental proceedings. By going through the order dated 28.08.2012 it transpires that no specific reasons has been mentioned and this Court has simply directed that counter affidavit shall be filed within four weeks and in the meantime no final decision shall be taken against the petitioner. From the entire order sheet it transpires that no endeavor was taken by either of the parties to get the case heard on merits and it further transpires that after the order dated 28.08.2012 the case was listed for hearing eight times and every time the case was adjourned at the request of the parties. Now coming to the argument advanced by the learned senior counsel that no order can be passed since the petitioner has already retired in the year 2018 it is clarified that the departmental proceeding against this petitioner was pending due to the order of stay passed by this Court and it is not a case that any fresh departmental proceeding is to be initiated against this petitioner after her retirement as such the department shall proceed in the pending departmental proceeding in accordance with law. decision of the Hon’ble Apex Court in the case of Takhatray Shivadattaray Mandad Vs. State of Gujrat reported in 1989 SuppSCC 110. In the said case the question of departmental enquiry instituted before retirement and its continuation after the age of superannuation was considered. It was held 10. In this regard reference may be made to the proceedings could be continued under the relevant rules and as provided the order could have been passed with respect to pension and gratuity. The proceedings did not become infructuous. Recently the Hon’ble Apex Court in the case of Chairman cum Managing Director Coalfields Limited Vs. Rebindranath Choubey reported in 2020 SCC online SC 470 has held that the disciplinary authority has powers to impose penalty of dismissal upon the delinquent even after his attaining the age of superannuation. Relevant portion of Para 70 & 72 are quoted herein below: 70. Several service benefits would depend upon the outcome of the inquiry such as concerning the period during which inquiry remained pending. It would be against the public policy to permit an employee to go scot free after collecting various service benefits to which he would not be entitled and the event of superannuation cannot come to his rescue and would amount to condonation of guilt. Because of the legal fiction provided under the rules it can be completed in the same manner as if the employee had remained in service after superannuation and appropriate punishment can be imposed. Various provisions of the Gratuity Act discussed above do not come in the way of departmental inquiry and as provided in Section 4(6) and Rule 34.3 in case of dismissal gratuity can be forfeited wholly or partially and the loss can also be recovered. An inquiry can be continued as provided under the relevant service rules as it is not provided in the Payment of Gratuity Act 1972 that inquiry shall come to an end as soon as the employee attains the age of superannuation. We reiterate that the Act does not deal with the matter of disciplinary inquiry it contemplates recovery from or forfeiture of gratuity wholly or partially as per misconduct committed and does not deal with punishments to be imposed and does not supersede the Rules 34.2 and 34.3 of the CDA Rules. The mandate of Section 4(6) of recovery of loss provided under Section 4(6)(a) and forfeiture of gratuity wholly or partially under Section 4(6)(b) is furthered by the Rules 34.2 and 34.3. If there cannot be any dismissal after superannuation intendment of the provisions of Section 4(6) would be defeated. The provisions of section 4(1) and 4(6) of Payment of Gratuity Act 1972 have to be given purposive interpretation and no way interdict holding of departmental inquiry and punishment to be imposed is not the subject matter dealt with under the Act. and in view of the decision of three Judge Bench of this Court in Ram Lal Bhaskarand our conclusions as above it is observed and held that the appellant employer has a right to withhold the gratuity during the pendency of the disciplinary proceedings and the disciplinary authority has powers to impose the penalty of dismissal major penalty upon the respondent even after his attaining the age of superannuation as the disciplinary proceedings were initiated while the employee was in 72. In view of the above and for the reasons stated above 11. In view of the aforesaid discussions and judicial pronouncements this Court is of the opinion that the stay order dated 28.08.2012 deserves to be vacated. 12. Consequently the instant writ application is hereby dismissed and the matter is remitted back to the disciplinary authority with a direction to proceed in the matter in accordance with law by giving notice to the petitioner annexing the copy of second show cause notice and after getting the reply if any pass appropriate order within a period of four months from the date of receipt production of a copy of this order. It goes without saying that the petitioner shall fully co operate in the pending departmental proceeding. Deepak Roshan J.) Fahim 