The Patna High Court recently allowed a petition challenging a Bureau order in the Water Resources Department that stopped the petitioner’s pension after four years and eight months of retirement from the Mapak post.

The court held that a delinquent employee will be considered to be in service, even after attaining the age of superannuation, only if valid departmental proceedings have been initiated against him before termination of service.

Justice Harish Kumar presiding over the case, observed, “Once the employer-employee relationship has ended, there is no question of terminating an employee’s employment on the grounds that his initial appointment was wrong in law. The delinquent employee will be considered to be in service, even though he has reached retirement age, only if a valid departmental proceeding has been initiated.”

“It cannot be said that the departmental procedure is initiated only when a notice of presentation of the case is issued. This is only initiated when a charge sheet is submitted. It is to be noted that for termination of service the procedure should be in accordance with Article 311 (2) of the Constitution of India even if the employee is not a public servant but a Government servant.” Justice Kumar added.

According to the factual basis of the case, the petitioner was appointed Mapak by an office order issued by the Rehabilitation Officer. After serving for 14 years, he was dismissed by the Director of Land Acquisition and Rehabilitation, prompting him to challenge the termination in court. The court ruled in his favor and granted his request.

However, despite the court’s decision, the petitioner was not allowed to return to his position, prompting him to file a contempt petition. While both the summons and the contempt petition were still pending, the respondent authorities reinstated the petitioner. He eventually reached retirement and received all applicable post-retirement benefits.

However, four years after his retirement, the petitioner was issued a show cause notice. In response, he presented an explanation, which was ultimately rejected by the authorities.

Counsel for the petitioner submitted that the order in question did not speak and showed a lack of consideration, being issued at the direction of the authorities of the Department. He submitted that the termination of the petitioner’s service, which occurred four years and eight months after his retirement, is completely illegal and cannot be sustained.

Alternatively, the Respondent’s Counsel submitted that the petitioner’s appointment was illegal and void ab initio as he was appointed temporarily for only three months at a time when such appointments were completely prohibited. The counsel further submitted that the appointment process did not follow the prescribed reservation policy.

The Court noted, “The government was well aware of all the facts, however, never bothered to mention the matter in light of the disposal of SLP no. 7233-7235/2003 and now, after four years and eight months of the petitioner’s retirement, the issue. of illegal appointment arises. Once an employee is allowed to retire unconditionally and all pension benefits and other contributions have been sanctioned and when the employee receives regular pension, the employer-employee relationship will automatically sever; in the absence of any pending departmental proceedings.”

Accordingly, the Court found that the only recourse left for the State authorities was to follow the procedure under the Bihar Pension Rules, 1950, which was not followed.

“The termination of an employee’s service after retirement is unknown to legal jurisprudence in the absence of any departmental proceeding with mere notice of cause.” the Court observed.

The court referred to his case Shambhu Sharan Vs. State of Bihar and Ors. (2000(1) PLJR 665)whereby it was held that though proceedings initiated during the service of an employee may continue after retirement, the nature of the sanction admissible differs and punitive action under the Bihar Government Servants (Control of Classification and Appeal) Rules, 2005 is not applicable.

The Court addressed the impugned order observing that the Chief Engineer of the Flood Control and Drainage Department, Patna rejected the petitioner’s explanation without assigning any reason, simply labeling it as “unacceptable”.

Moreover, the Court held that the termination order appears to be motivated by or consistent with a letter from the Water Resources Directorate.

“Thus, there is absolutely no independent application of mind, which is sine qua non during the rendering of petitioner’s services causing both civil and evil consequences. Thus, the impugned order suffers from the vice of arbitrariness, apart from the total violation of the principles of natural justice”. the Court noted.

The Court stated that the respondent authorities had the option to seek modification of the status quo order in view of subsequent developments but failed to do so, allowing the petitioner to retire. With retirement, the court also stated, all benefits were granted, completely severing the employment relationship, leaving no grounds for continuing departmental proceedings without due process.”

The court concluded that the restraining order was “completely unjustified, perverse and illegal and unsustainable in law” and thus set it aside. It also set aside the subsequent order issued by the Executive Engineer of Punpun Flood Protection Division, Anisabad (Patna).

The court ordered that the respondent authorities return the petitioner’s pension within four weeks of receiving or presenting a copy of the order.

In addition, “The petitioner shall also be entitled to an amount of Rs.20,000/- as litigation cost,” ordered the Court, admitting the request.

Case Title: Chandra Kishore Sharma v. State of Bihar and Ors.

Citation LL:

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