Termination Of Service After Employee's Retirement Unknown To Law In Absence Of Pending Departmental Proceedings: Patna High Court

The Patna High Court recently allowed a petition challenging an office order from the Water Resources Department that halted petitioner's pension after four years and eight months of his superannuation from the post of Mapak.

The court ruled that a delinquent employee would be considered to be in service, even after reaching retirement age, only if a valid departmental proceeding had been initiated against him prior to the cessation of service.

Justice Harish Kumar presiding over the case, observed, “Once the relationship of the employer and employee comes to an end, there is no question of termination of service of an employee, that too on the ground that his initial appointment was bad in law. The delinquent employee would be deemed to be in service, although he has reached the age of superannuation, only if a valid departmental proceeding had been initiated.”

“The departmental proceeding can not be said to be initiated merely on issuance of a show-cause notice. It is initiated only when a charge-sheet is submitted. It is to be noted that for termination of service, the procedure should be in conformity with Article 311 (2) of the Constitution of India even if the employee is not a civil servant, but a government servant,” Justice Kumar added.

According to the factual background of the case, the petitioner was appointed as a Mapak through an office order issued by the Rehabilitation Officer. After serving for 14 years, he was terminated by the Director of Land Acquisition and Rehabilitation, prompting him to challenge the termination in court. The court ruled in his favor and allowed his writ petition.

However, despite the court's decision, the petitioner was not permitted to return to his position, leading him to file a contempt application. While both the writ petition and the contempt petition were still pending, the respondent authorities reinstated the petitioner. He eventually reached superannuation and received all applicable post-retirement benefits.

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

The Counsel for the Petitioner argued that the order in question was non-speaking and showed a lack of thoughtful consideration, having been issued at the direction of the Department's authorities. He contended that the termination of the petitioner's service, occurring four years and eight months after his retirement, is entirely illegal and cannot be upheld.

Alternatively, the Respondent's Counsel contended that the petitioner's appointment was unlawful and void from the outset, because he was appointed on a temporary basis for only three months during a period when such appointments were completely banned. Additionally, the counsel contended that the appointment process did not adhere to the prescribed reservation policy.

The Court noted, “Government was well acquainted with all the facts, however, it never bothered to mention the matter in the light of the disposal of SLP No. 7233-7235/2003 and now after four years and eight months of the retirement of the petitioner the issue of illegal appointment is being raised. Once an employee is allowed to superannuate unconditionally and all the retiral benefits and other dues have been sanctioned and when the employee is getting regular pension, the tie between the employer and employee would automatically severed; in absence of any pending departmental proceeding.”

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 pursued.

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

The Court referred to the case of Shambhu Sharan vs. State of Bihar & Ors. (2000(1) PLJR 665), whereby it was held that while proceedings initiated during an employee's service may continue post-retirement, the nature of permissible penalties differs, and punitive actions under the Bihar Government Servants (Classification Control and Appeal) Rules, 2005 cannot be applied.

The Court addressed the impugned order, observing that the Chief Engineer of the Flood Control and Drainage Department in Patna had rejected the petitioner's explanation without providing any reasoning, simply labeling it as “not acceptable.”

Furthermore, the Court noted that the termination order appeared to be motivated by or consistent with a letter from the Water Resources Department.

“Thus, absolutely there is no independent application of mind, which is sine qua non while dispensing the services of the petitioner causing civil as well as evil consequences. Thus, the impugned order suffers from the vice of the arbitrariness, apart from complete violation of the principles of natural justice,” the Court remarked.

The Court stated that the respondent authorities had the option to seek modification of the status quo order considering subsequent developments but did not do so, permitting the petitioner to retire. With retirement, the court further stated, all benefits were granted, fully severing the employment relationship, leaving no grounds for continuing departmental proceedings without proper procedure.”

The Court concluded that the termination order was “wholly unjustified, perverse and illegal and not sustainable in the law,” and thus set it aside. It also quashed the subsequent order issued by the Executive Engineer of Punpun Flood Protection Division, Anisabad (Patna).

The Court ordered that the respondent authorities restore the petitioner's pension within four weeks of receiving or presenting a copy of the order.

Additionally, “The petitioner shall also be entitled to get an amount of Rs.20,000/- as litigation cost,” the Court directed, granting the application.

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

LL Citaton: 2024 LiveLaw (Pat) 95

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