Termination of service after retirement of employee unknown to law in absence of pending departmental proceedings: Patna High Court

The Patna High Court recently allowed a petition challenging an office order of the Water Resources Department that suspended the pension of the petitioner after four years and eight months of service as a Mapak.

The court ruled that an offending employee would be considered to be in service even after attaining the age of superannuation only if a valid departmental proceeding had been initiated against him prior to termination of service.

Justice Harish Kumar presiding over the case, observed “If the relationship between the employer and the employee is terminated, it is not a question of termination of the employee’s service, even on the grounds that his initial appointment was illegal under the law. An offending employee will be considered to be in service, even though he has reached the age of seniority, only if a valid departmental proceeding has been initiated.”

“It cannot be said that departmental proceedings were initiated only on the basis of a show cause notice. It begins only after the indictment is presented. 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 civil servant but a civil servant.” – added Judge Kumar.

According to the facts of the case, the applicant was appointed by Mapak by an order issued by a rehabilitation officer. After 14 years, he was fired as director of land acquisition and reclamation, prompting him to challenge the termination in court. The court ruled in his favor and satisfied his claim.

However, despite the court’s decision, the plaintiff was not allowed to return to his post, which forced him to file a contempt of court application. While the writ petition and the contempt petition were still pending, the authorities reinstated the applicant. He eventually achieved years of service and received all applicable retirement benefits.

However, four years after his retirement, a show cause notice was issued to the plaintiff. In response, he submitted explanations that were ultimately rejected by the authorities.

Counsel for the petitioner argued that the order in question was non-advertising and showed a lack of due diligence as it was issued at the behest of the Department’s management. He submitted that the termination of the petitioner’s service four years and eight months after his retirement is totally illegal and cannot be upheld.

Further, counsel for the respondent contended that the petitioner’s appointment was illegal and void ab initio as he was appointed on a temporary basis only for three months during a period when such appointments were completely prohibited. Further, counsel submitted that the appointment process was not in accordance with the established reservation policy.

The court noted “The government was well aware of all the facts, however, it never mentioned the matter in the light of disposal of SLP Nos. 7233-7235/2003 and now, after four years and eight months after the petitioner’s retirement, the issue of illegal appointment. Once the employee is allowed to retire without any conditions, all pension payments and other contributions will be sanctioned and when the employee receives regular pension, the employer-employee relationship will be automatically severed; in the absence of any pending departmental proceedings”.

Accordingly, the Court concluded that the only remedy left to the State authorities was to follow the procedure under the Bihar State Pension Rules, 1950, which had not been applied.

“Termination of an employee’s service after retirement is unknown to judicial practice due to the absence of any departmental proceedings on the basis of a simple notification of the reason”, noted the Court.

The court addressed the case Shambhu Sharan v. State of Bihar and Ors. (2000(1) PLJR 665)under which it was held that though proceedings initiated during the service of an employee may continue after retirement, the nature of the punishments permissible is different and punitive action under the Bihar Civil Servants (Control of Classification and Appeals) Rules, 2005 cannot be applied

The court referred to the impugned order, noting that the Chief Engineer, Flood Control and Drainage Department, Patna, had rejected the petitioner’s explanation without any justification, simply terming it as “unacceptable”.

In addition, the Court noted that the cease-and-desist order appeared to be motivated by or consistent with the letter from the Department of Water Resources.

“Thus, there is absolutely no independent exercise of reason, which is a prerequisite to plaintiff’s services, which has both civil and adverse consequences. Thus, the impugned order suffers from arbitrariness apart from total violation of the principles of natural justice.” the Court noted.

The court noted that the respondent authorities had the opportunity to demand a change in the status quo, taking into account subsequent developments, but failed to do so, allowing the petitioner to resign. Upon retirement, the court further noted, all benefits were granted, completely severing the employment relationship, leaving no basis for continuing the department’s proceedings without due process.”

The court concluded that the dismissal order was “grossly unjustified, erroneous, illegal and contrary to law” and therefore set it aside. He also set aside the following order issued by the Executive Engineer, Punpun Flood Protection Division, Anisabad (Patna).

The court directed that the respondent authorities should restore the claimant’s pension within four weeks of receiving or providing a copy of the order.

Besides, “The applicant is also entitled to an amount of 20,000 rupees as legal costs,” the court decided, granting the application.

Case name: Chandra Kishore Sharma vs. State of Bihar and Ors.

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