Sh. Baboo Ram vs State of Himachal Pradesh

V.K. Sharma, Judge

The petition has been filed on the following substantive prayers:-

I).That the Respondents may kindly be directed to release the salary of the Petitioner for the period of April, May and July 2008.

II).That the Respondents may kindly be burdened with interest @ 12% per annum of the aforesaid salary of the Petitioner by issuing writ of mandamus.

As per report of the Registry, reply/rejoinder have not been filed. However, Mr. Anil Jaswal, learned Deputy Advocate General states at the bar that reply has since been filed on 18.5.2012 with advance copy to the learned counsel for the petitioner, as per receipt shown in the court.

Rejoinder not to be filed.

A copy of the reply has been made available by the learned Deputy Advocate General which is taken on record, wherein the respondents have taken the following stand, vide paras 2,3,4 and 6 of the preliminary submissions:-

That on 08.4.2008 the petitioner was transferred from Govt. Middle School, Dhoun Kothi under complex Government Senior Secondary School, Panjgain, District Bilaspur to Government Middle School, Ree Dhadwal under Complex Government Senior Secondary School Swahan, District Bilaspur. But on 16.04.2008 the petitioner was temporarily deputed to Government High School, Dhar Tatoh, District Bilaspur against the vacant posat of L.T. till further orders and the petitioner was relieved by incharge Government Middle School, Dhoun Kothi on 21.04.2008 to resume duties in Government High School Dhar Tatoh. It is submitted that respondent No. 3 with the prior approval of the competent authority vide order dated 9th June, 2008 adjusted the petitioner at Government High School, Dasgaon vice Sanjeev Kumar who was transferred to Government Middle School, Nog under complex GSSS Ghagus vice Sh. Rama Nand Shastri. Sh. Rama Nand Shastri was further transferred to GMS Sungal vice Sh. Ram Lal who was transferred to Government Middle School, Ree Dhadwal against vacant post to where the petitioner was actually under transfer. But Sh. Ram Lal filed O.A. No. 1708/2008 in erstwhile Tribunal and these transfer orders were stayed by the erstwhile Tribunal. The respondent No. 3 vide order dated 23.06.2008 ordered all the persons to join back their previous places of postings in view of the stay granted by the erstwhile Tribunal. Now the Headmaster Government High School, Dasgaon where the petitioner had joined immediately in compliance to the orders dated 09.06.2008, relieved the petitioner in absentia and ordered him to resume duties at GMS Ree-Dhadwal but he did not comply with the orders.

That it appears that instead of joining in compliance of his transfer order, he had made efforts for modification of the said order. As a matter of fact the transfer orders of the petitioner were amended on 21.7.2008 and on the same day the petitioner joined his duties at GSSS Chandpur, District Bilaspur.

That immediately after joining on 21.7.2008 the petitioner applied for medical leave w.e.f. 27.6.2008 to 21.7.2008. It clearly reflects that the petitioner was actually evading the transfer orders.

That it is submitted that the competent Authority has issued directions to the respondent No. 3 vide office order No. EDN-H(III)B(7)-2/2009-10-Salary-(BLP), dated 04th May, 2012 to release the salary for the period of April and May, 2008. So far the salary for the month of July is concerned for which the petitioner has submitted the medical certificate, that is ordered to be treated leave without pay without break in service in accordance with the Government instructions dated 17.06.2004.

The learned counsel for the petitioner states that in so far as the salary for April and May, 2008 is concerned, the same has since been released to the petitioner during pendency of the present writ petition and as far as the claim for salary for the month of July, 2008 is concerned, the case of the petitioner is covered under judgment dated April 26, 2012, passed by a Division Bench of this court in CWP No. 2080 of 2012, titled Sunit Pathania Vs. State of Himachal Pradesh and another, text whereof is as under:-

The writ petition is filed with the following prayers:

i) that the respondents may kindly be directed that 98 days leave may be adjusted against the leave available to the credit of the petitioner (294 days as on 1.8.2008.

ii) That letter dated 4.9.2008 (Annexure P-5) may kindly be quashed and set aside and respondents be directed to pay the salary for 98 days w.e.f. 19.3.2008 to 26.4.2008 by adjusting the same against the leave available to the credit of the petitioner.

The issue, in principle, has already been decided by this Court in Annexure P-4 judgment in CWP(T) No. 14491 of 2008. It is seen that the said judgment has been implemented as per Annexure P-5.

In reply filed by the Director, it is pointed out that in case the people, who wilfully absented from duty, are permitted to regularize their leave of absence by adjusting the same against the leave available to their credit, it would affect the discipline and will be against larger public interest. We have dealt with this issue as well in Annexure P-4 judgment. Yet at the risk of redundancy, we make it clear that in case there is any indisciplinary conduct on the part of any government servant, it is for the appropriate authority to take appropriate disciplinary action. Without taking recourse to any disciplinary action, in case the leave period is regularized for all purpose, except for pay, in such a situation only, we have held that in case there is leave available to the credit of the employee concerned, the same shall be adjusted to the extent of leave available.

Therefore, we dispose of the writ petition, directing the 2nd respondent to see whether the petitioner had leave available to her credit for covering up the period of absence, which has since been regularized as leave without pay, and if so, the action in that regard shall be taken for getting the same adjusted against such leave, ignoring the orders already passed, within a period of two months, from the date of production of a copy of this judgment alongwith a copy of the writ petition by the petitioner, before the 2nd respondent. Pending applications, if any, also stand disposed of. Copy dasti.

In view of the above, if on facts, the case of the petitioner is covered under the aforesaid judgment dated April 26, 2012 in CWP No. 2080 of 2012 and he is similarly situate, benefit of the said judgment shall also be extended to him without any discrimination within three months from the date of production of copy of this judgment and the judgment referred to hereinabove by the petitioner before respondent No. 2/competent authority.

It appears that due and admissible salary payable to the petitioner for the months of April and May, 2008 was withheld for no fault on his part and was paid quite belatedly. It being so, the petitioner is awarded interest @ 6% per annum for the delayed payment, that is, from the due date till the date of payment, which shall also be payable within the same time as above. The petition stands disposed of in the above terms.