Ramavtar Paswan vs The State of Jharkhand and Others

J.C.S. Rawat, J.—The petitioner has filed this writ petition for following relief(s):

For issuance of an appropriate direction particularly in the nature of Certiorari for quashing the Office Order contained in Memo No. 2721 dated 19.6.2002 (annexure-7) by which the petitioner has been imposed with another set of punishment in the same departmental proceeding initiated by Notification contained in Memo No. 2824 dated 2.8.1995 (annexure-1) for which he had already been imposed with two punishment by Resolution contained in Memo No. 2545 dated 22.8.2000 (annexure-4) and for quashing the letter No. 812 dated 15.2.2003 (annexure-8) by which the representation filed by the petitioner was rejected by the Principal Chief Conservator of Forest, Bihar, Ranchi. And for a further direction to the respondents to pay the full salary for the period from 2.8.1995 to 31.8.2000 when he was put under suspension minus the subsistence allowances paid during this period and to treat the said period for his Pension also. And for any other relief or relief''s to which the petitioner may be found entitled to.

In the nutshell, it is admitted facts in between the parties that the petitioner was appointed as Forester on 1.12.1975 in the erstwhile State of Bihar. In the year 1995, he was suspended by the competent forest authority and the Departmental proceedings were initiated against him. After completion of the inquiry, the petitioner was awarded punishment on 22.8.2000 by which two increments of the petitioner were withheld and the recovery of the rest amount of Rs. 37,361.61/- was made against the petitioner. Thereafter, the suspension of the petitioner was revoked on 1.9.2000 (annexure-5 to the writ petition). At the time of the bifurcation of the State of Bihar and Jharkhand, the petitioner had been working in Deoghar, State of Jharkhand and the petitioner was superannuated form the post of Range Officer from the office of Principal Chief Conservator of Forest, Ranchi in the year, 2001. After superannuation, the petitioner received an Office Order dated 19.6.2002, issued by the Principal Chief Conservator of Forest, Bihar Patna where by he was communicated the decision that during the period of suspension, nothing would be paid to the petitioner except the subsistence allowance and the said period would not be counted for his pension. The petitioner, thereafter, represented before the respondents and the said representation was also rejected by the competent authority of Bihar. Thereafter, this writ petition has been preferred.

I have heard learned Counsel for the petitioner and the learned Counsel appearing for the respondents No. 4, 5 & 6. They have filed counter affidavit and the respondents have stated that the petitioner was put under suspension on 2.8.1995 and thereafter he was re-insisted on 22.8.2000 of Forest and Environment, Government of Bihar by which the punishment was awarded to him in the year 2000. The State of Bihar on 1.9.2000 revoked the suspension order of the petitioner and the decision with regard to the payment of salary during the suspension period was not taken at that time which was taken on a later point of time on the ground of Rule-97 of the Bihar Service Code under which the competent authority was competent to direct not to pay the full salary to the petitioner but to pay only subsistence allowance and to pass the impugned order. The Respondents-State of Bihar also resisted the claim of the petitioner on the ground that the petitioner had not been allocated to the State of Jharkhand at the time of superannuation and he was the servant of the State of Bihar and his appointing authority was the Principal Chief Conservator of Forest, Bihar and he had to take the decision with regard to the payment of his salary.

The learned Counsel for the petitioner contended that the order passed by the respondents officer, State of Bihar is violative of the provision contained in the Bihar Reorganization Act; the petitioner is superannuated from service from the State of Jharkhand and after the creation of the State of Jharkhand after the reorganization of the State of Bihar, the Chief Conservator of Forest, Jharkhand, Ranchi was the competent authority to pass the order and to take the appropriate decision by virtue of Section 74 of the Bihar Reorganization Act, 2000. The Principal Conservator of Bihar, Patna had no jurisdiction to pass the impugned order.

The learned Counsel appearing for the State of Bihar contended that the petitioner had not been finally allocated to the State of Jharkhand, so the impugned order was passed well within his competence and he supported the claims made in the counter affidavit.

Before appreciating the contentions of the learned Counsel for the parties, it would he relevant to refer Section 74 of the Bihar Reorganization Act, 2000 which is as follows:

Provisions as to continuance of officers in same post- Every person who, immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Bihar in any area which on that day falls within any of the successor States shall continue to hold the same post or office in that successor State, and shall be deemed, on and from that day, to have been duly appointed to the post or office by the Government of, or any other appropriate authority in, that successor State.

Successor State" has been defined in Section 20 of the Act which reads thus:

Successor State" in relation to the existing State of Bihar, means the State of Bihar or Jharkhand.

It is apparent from perusal of Section 74 that if the petitioner is posted in the State of Jharkhand and holding a post or office in the State of Jharkhand shall be deeming to be appointed by the State of Jharkhand till he is allocated to the State of Bihar. Section-74 of the Bihar Reorganization Act is a deemed provision where under a person who was holding or discharging the duties of any post or office in connection with the existing State of Bihar, prior to 15.11.2000; on and from November 15, 2000, such person was continue to hold the same post or Office in the successor State under which the area falls and shall be deemed on or from the appointed date duly appointed to the post or office by the government or appropriate authority in the successor State under whom the post and office falls. By virtue of the deeming provision, the persons who had been working in the State of Jharkhand would be the employees of the State of Jharkhand till they are allocated to the State of Bihar.

By the judgment reported in 2001 (3) JCR 155 (State of Bihar v. Arvind Vijay Vilung and Anr.), it has been observed as under:

Admittedly, every person, who immediately before November 15, 2000, was serving the existing-State of Bihar'', their appointing authority was the ''existing-State of Bihar", or the appropriate authority of said ''existing-State of Bihar.

On and from November 15, 2000, for all purpose, the ''existing-State of Bihar'' is not in existence having bifurcated and two successor-States, both came in existence since November 15, 2000, one cannot compare the ''existing-State of Bihar, as was existing prior to November 15, 2000, nor can make it synonyms to successor-State of Bihar, which came into existence on November 15, 2000.

As there should be an appointing authority for every person, the existing-State of Bihar'' for all purpose having become non-existence, as it become necessary to make one or other successor-State or appropriate authority of that Successor-State to be the appointing authority, the provision of Section 71 of reorganization Act, 2000, seems to have been incorporated by the Parliamentarians.

It is a settled law that every clause of a statute is to be considered with reference to the context and other provisions of the Act to make it consistent and harmonious meaning of the statute relating to subject-matter.

The expression ''provisionally continue to serve in connection with the affairs of the State of Bihar'' referred to Sub-section (1) to Section 72 cannot be construed in isolation, but to be read in conjunction with Section 74, one being complementary to other, substituting the successor-State as the appointing authority in place of the parent-State. Such is the view of Mysore High Court in ''N. Chandramouli v. State of Mysore'' AIR 1971 Mys 53.

Expression ''competent authority'' occurring in Proviso to Section 74 cannot be construed in isolation. It is to be read in conjunction with, construed and understood as having the same meaning as the expression ''appointing authority'' contemplated by Sub-section (1) of Section 74. Such is the view of the apex Court in the case of ''Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg'', (supra).

In absence of general or special order of the Central Government, a person posted in the area of State of Jharkhand though provisionally continue to serve in connection with the affairs of the State of Bihar under Sub-section (1) of Section 72, it is to be read along with provision of Section 74, both being complementary to each other.

A person holding post which is not abolished by or because of the State Reorganization Act would continue to hold the post and office and will be deemed to have been appointed to the post by the appropriate/competent authority of the successor-State.

In the aforesaid background, in respect to persons holding post or office in the area of State of Jharkhand, the appointing authority being the State of Jharkhand, till they are not allocated in the State of Bihar, the competent authority to take disciplinary action shall be the State of Jharkhand and not the State of Bihar.

Such was the situation in the case of '' Balkishan Chaturvedi Vs. The Chief Secretary, Govt. of Bhopal and Another, , the officer, who was working in the area, that was a part of State of Rajasthan being to work in the State of Madhya Pradesh by the transfer of that area during the reorganization of State, no general or special order was issued by the Central Government in respect to such officer, the court taking into consideration similar provision held that the successor-State of Madhya Pradesh is the competent authority to punish and not the State of Rajasthan.

As the petitioners were holding posts and office in an area ''Chatra and Jamshedpur'', respectively, which since November 15, 2000, fall within the State of Jharkhand, they will not only continue to hold the same post and office in the State of Jharkhand, but shall be deemed to have been duly appointed to such post or office by the Government of Jharkhand on and from November 15, 2000, till they are allocated a State, the State of Jharkhand shall be the competent authority to take disciplinary action.

For the same reason, the State of Bihar shall have no jurisdiction to take any disciplinary action in respect to a person holding post or office in the State of Jharkhand, having deemed to be appointed by the Government of Jharkhand till allocated the State of Bihar.

In view of the provisions referred to and discussions as made above, the present State of Bihar having no jurisdiction to take disciplinary action against persons holding posts and office in the State of Jharkhand, like petitioners, the impugned orders of suspension containing in notification, dated May 20, 2001 relating to petitioner Arvind Vijay Bilung and notification, dated May 5, 2001 in respect to petitioner V.N. Mishra cannot be upheld and they are set-aside.

However, it will be open to the State of Jharkhand to pass any order, in accordance with law, if it so chooses. The petitioners should bring this order to the notice of secretary of their respective Department.

The said judgment has also been confirmed in the L.P.A. No. 658 of 2001 it is observed as under:

Para-11: Once, therefore, it is held that on and from the appointed day, the successor State to the existing State would be the appointing authority in respect of a government Servant and that the competent authority on and from that day, shall have all power to pass any order in any respect against such person (including the order affecting his continuance in such post or office) permitting the existing State of Bihar, to either initiate disciplinary proceedings or issue suspension order against such person would be in violation of the express mandate contained in Section 74 of the Act and the proviso thereto. On and from the appointed day, the "existing State of Bihar" as defined in Section 2(e) ceased to exist. On and from the appointed day, the successor States to the existing State of Bihar came into being. These successor States were the State of Bihar and the State of Jharkhand. By a reading of Section 74, therefore, what emerges is that the appointing authority in respect of a Government servant would be one of the two successor States, the State of Bihar or the State of Jharkhand and to determine as to which one of these two successor States is the appointing authority, the test is very, very simple. If the employee, as on the appointed day is serving in and posted at a territory forming part of the successor State of Bihar, the State of Bihar would be the appointing authority. If the employee is posted in and serving at a territory forming part of the State of Jharkhand, the State of Jharkhand would be the appointing authority. It is only the competent authority in the successor State which has the power and jurisdiction to initiate action and pass order. This is irrespective of the accrual of cause of action at any point of time before the appointed day or the place where such cause of action occurred. To elucidate, we may say that if as on the appointed day, a person was serving in and posted at a place which formed part of the territory of the State of Jharkhand and if with respect to such a person cause of action had occurred, say in the year 1998 or 1999, in a place which, as on the appointed day, formed part of the State of Bihar, the State authority and only such competent authority can pass order with respect to such a person. The State of Bihar with respect to such a person would have no jurisdiction to initiate action or pass an order.

Para-12: In such a situation and in such a background, where the State is carved out of an existing State, the cooperation between the two States becomes meaningful. If, therefore, the State of Bihar has, in it possession, any material against a Government servant who, by virtue of Section 74 of the Act, is now in the service of the State of Jharkhand and if the State of Bihar thinks that such material warrants initiation of an action against such a person, it is open to the State of Bihar to forward such material to the State of Jharkhand for such action as it considered appropriate by the State of Jharkhand. Let it be very clearly understood that only role of the erstwhile State in such a situation is merely to pass on the information or the relevant material to the State of Jharkhand and leaving the rest of the State of Jharkhand to do. Similar would be the case for the State of Jharkhand if an employee is in a place in Bihar and if the State of Jharkhand has any material in its possession which may be required to be forwarded to the State of Bihar of appropriate action against such an employee.

In view of the above proposition of law, the petitioner was in the State of Jharkhand at the time of creation of the State and also superannuated from the State of Jharkhand in the year 2001.'' and the impugned order was passed after the creation of the State of Jharkhand in the year 2002 and as such, only the State of Jharkhand was competent to take decision in this regard. The State of Bihar should have sent all the material before the State of Jharkhand and the Chief Conservator of Forest, Jharkhand was the competent authority to pass the suitable orders. In view of the above impugned order passed by the respondent No. 6 is liable to be set-aside and however it is made clear that the State of Jharkhand would be the competent to take a decision regarding the payment of the pay of the petitioner from 2.8.1995 to 31.8.2000.

In view of the above, the order contained in Memo No. 2721 dated 19.6.2002 (annexure-7 page, 23) by which the salary of the period of suspension has been withheld and he was allowed to get the subsistence allowance while he was under suspension and further the period was not be counted for his pension and further communicate annexure-8 by which the representation of the petitioner was rejected are also quashed. However, the respondent-State of Jharkhand is directed to take an appropriate decision for the payment of his salary for the period when he remained suspended i.e. 2.8.1995 to 31.8.2000.

This petition is disposed of accordingly. No order as to cost.