Hare Ram Gupta vs State of Uttarakhand and Others

Tarun Agarwala, J.—Heard Mr. Rajendra Dobhal, the learned senior Counsel duly assisted by Mr. Manoj Shah, the learned Counsel for the Petitioner and Mr. K.P. Upadhyaya, the learned Additional Chief Standing Counsel for the Respondents.

The Petitioner is a Senior Drug Inspector in Medical Health & Family Welfare Department and has filed the present writ petition seeking a writ of mandamus commanding the Respondents to pay him the salary from August, 2008 onwards and further prayed that he should be given some work according to his seniority in the department of Drug Controller, Uttarakhand.

The facts leading to the filing of the present writ petition is, that the Petitioner had opted for the State of Uttar Pradesh upon the creation of Uttarakhand. The Union of India, by an order dated 29.11.2005, finally allocated the State of Uttarakhand to the Petitioner and, based on this allocation order, it is said that the Petitioner submitted his joining on 01.06.2006 in the State of Uttarakhand. By an order dated 28.06.2007, the Petitioner was placed under suspension and an enquiry was instituted and, upon the completion of the enquiry, the authority by an order dated 07th July, 2008 directed his reinstatement. Pursuant to his reinstatement, the Petitioner was attached to the office of the Additional Director, Medical Health & Family Welfare, Kumaun Mandal, Nainital. It is submitted that the Petitioner joined at this place on 09th July, 2008 and remained attached at this office. It is alleged that the Petitioner was not allocated any work nor was paid any salary and, accordingly, the Petitioner made a request to the authorities that he should be given a posting and allocation of work and till such time as he is not given any work, he would remain stationed at his home town in Varanasi.

The Respondents in paragraph 3(Q) of the counter affidavit contended that the Petitioner worked till 20 August, 2008 and, thereafter, did not report for duty in the office of the Additional Director, Medical Health & Family Welfare, Nainital and, in this regard, the authorities apprised the higher authorities through various letters. Besides this, the Petitioner was also informed that the he should join immediately and should also explain his unauthorised absence vide various letter dated 23rd October, 2008, 12th December, 2008, 17th February, 2009, 15th May, 2009 and 24th May, 2009. These letters have been collectively annexed as Annexure-20 to the counter affidavit. The Petitioner in paragraph 17 to the rejoinder affidavit has not denied specifically the averments of paragraph 3(Q) of the counter affidavit, namely, that he was not attending the office at Nainital after 20th August, 2008 nor has he denied the receipt of the aforesaid letters, which were sent by the authorities.

In the light of the specific averments, this Court finds that since the Petitioner was not reporting for duty, his claim for the salary w.e.f. August, 2008 onwards is not tenable and such relief cannot be granted in a writ jurisdiction where disputed questions of fact are raised.

The Respondents in paragraph 3(R) have contended that the Petitioner submitted his joining on 11th May, 2010 and that the Additional Director has sought necessary directions from the Director General, Health & Family Welfare to issue necessary directions as to whether the Petitioner should be allowed to join after such a long absence. The Petitioner in paragraph 18 of the rejoinder affidavit has contended that the Additional Director is not allowing the Petitioner to join his duty.

In the light of the aforesaid, it is clear that the Respondents have not initiated any disciplinary action against the Petitioner for being on unauthorised leave since August, 2008, but when the Respondents admit that the Petitioner reported for work on 11th May, 2010, the Respondents should have allowed him to join or should have issued notice and should have initiated disciplinary proceedings against the Petitioner. The Additional Director, by seeking necessary instructions, cannot keep the matter in limbo and could not allow the Petitioner not to report for work. Such type of attitude adopted by the Respondents is not correct. Consequently, we issue a direction to the Respondents to allow the Petitioner to join at Nainital. We further issue a direction that the Respondents allocate some appropriate work to the Petitioner and accordingly pay him his salary from the date of his joining. The writ petition is accordingly disposed of.