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.”
While dismissing the petition the court finds 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 under law.”
