V.K.Tiwari vs State of U.P.and Others

S. K. Jain, J.—Sri V. K. Tewari, the petitioner herein, was appointed Executive Officer, Municipal Board, Auraiya. He worked on that post with effect from 1121956 to 1631963. Thereafter he was appointed as Executive Officer, Municipal Board, Farrukhabad with effect from 1791963. He was absorbed in U. P. Local Bodies Centralized Services in .its constitution with effect from 971966. Thereafter he remained posted as Executive Officer in various Municipal Boards and Corporations of the State. He was promoted as Up Nagar Adhikari and posted in the Nagar Mahapaliks, Varanasi. After serving there for three years, he served for another three years as Up Nagar Adhikari, Nagar Mahapalika, Allahabad. In July 1982 ha was transferred as Executive Officer, Nagar Palika, Moradabad. This post carried the same pay scale as that of Up Nagar Adhikari. He had become due for promotion to the selection grade of Rs. 37005000. Rut as the luck would have it, vide order dated 811986 the State Government placed him under suspension on account of his allegedly having committed irregularities during his tenure at Jaunpur in the purchase of Maxphalt (Coaltar) and other matters. The petitioners hied Writ Petition No. 2024 of 1986 at Lucknow Bench in the month of March, 1986 seeking following reliefs :

(i) quashment of the suspension order and the chargesheet;

(ii) to allow him to continue in his post ; and

(iii) forbidding the respondents to take disciplinary proceedings against him.

Said writ petition after exchange of affidavits and contest was dismissed vide order dated 1391989 (Annexure 13) which reads as under:

"(1) If no chargesheet was served upon the petitioner the impugned order of suspension shall stand revoked.

(2) If the chargesheet was served upon the petitioner but the enquiry was not concluded despite the petitioner having filed his reply and cooperated in the enquiry the impugned order of suspension shall stand revoked.

(3) If the disciplinary enquiry has been concluded and final order has been passed therein the order of suspension shall merge in the final order.

(4) If the petitioner has not filed reply to the chargesheet or the proceedings have not been concluded because of failure of the petitioner to cooperate, the writ petition shall stand dismissed and the stay order shall stand vacated."

In the meanwhile vide order dated 2761988 the petitioner was reinstated pending enquiry. He joined on 3061988 as Executive Officer, Nagarpalika, Moradabad.

Vide order dated 2271988 he was transferred to Ballia as officerincharge, Nagar Palika. But instead of joining at Ballia he made representations thereby seeking that his transfer from Moradabad be deferred pending conclusion of the enquiry. No reply to his representation was, however, received by him. The officerincharge, Nagar Palika, Moradabd vide letter dated 1081988 (Annexure II) suggested to the Government to treat the petitioner relieved from the post of Executive Officer, Moradabad with effect from 281988. The State Government, however, did not approve of it. The petitioner was not paid salary for the period with effect from 3061988 to 2881988 by the Nagar Palika, Moradabad where he remained posted as Executive Officer during this period.

The State Government issued order dated 1791988 (Annexure12). Relevant portion of the same read as under :

"In view of forthcoming elections of Local Bodies the Government has decided that no further transfer order of employees, officers of all Local Bodies, Development Authorities and Special Area Development Authorities and Jal Sansthan should be made till further orders.

The Government has also decided that the order issued by Urban Development and Director of Local Bodies after 3061988 in respect of employees officials of all Local Bodies, Development Authorities, Special Area Development Authorities and Jal Sansthan should not be acted upon if the transferred employees/ officers have not yet been relieved by the controlling officer.

It may be clarified that the officers/officials/employees who have already been relieved by the concerned officers in compliance of the transfer order in their, absence, they should be treated to have been formally relieved and transferred and therefore the e instructions will not apply to such cases.

However, in special cases the transfers recommended by the Administrator on administrative grounds can be considered by the Government. Please inform all concerned accordingly."

The petitioner filed another writ Petition bearing No. 17035 of 1990 seeking the following reliefs :

(i) quashment of the disciplinary proceedings ; (ii) payment of salary w.e.f. 171998 onwards ;

(iii) payment of the balance of salary for the suspension period; and

(iv) grant of all benefits in the matter of promotion and higher pay

In the above writ petition an interim order was passed on 2471990 directing the Director, Local Bodies, Lucknow to complete the disciplinary proceedings within three months. This writ petition is still pending.

After the disciplinary proceedings were completed the petitioner was served with order dated 29101990 (Annexure 1) thereby informing him that the second and third charge had been proved against him partly and fully respectively. Resultantly, the punishment of making an adverse entry in his service record was inflicted on him vide said order.

Notice dated 2311991 (Annexure 2) was also served on him asking him to show cause as to why his salary during the suspension period be not reduced to the subsistence allowance already paid to him. He submitted reply followed by representation dated 2131991 which was rejected. The petitioner retired from service on 2821994 while serving in Nagar Palika Bareily.

In this petition the petitioner has sought the following reliefs :

(i) quashment of order dated 29101990 (Annexure 1);

(ii) quashment of notice dated 2311991 (Annexure 2);

(iii) payment of balance salary for the suspension period ;

(iv) payment of salary with effect from 171988 to 281988 ; and

(v) grant of all benefits in the matter of promotion and higher pay scale.

In spite of having been given opportunities, counter affidavit, whatsoever, was filed on behalf of the State, respondent Nos. 1 and 2, whereas counter affidavit on behalf of Nagar Palika, Moradabad, respondent No. 3 has been filed. In para 10 of the said counter affidavit respondent No. 3 has taken the stand that vide order of the State Government No. 1214/1/114889VV/88, dated 2271988 the petitioner was transferred and posted as officerincharge, Nagar Palika, Ballia. In compliance of the said order he was relieved from Nagar Palika, Moradabad on 281988. It was admitted that the officerincharge, Nagar Palika, Moradabad, vide his letter dated 1081988 (Annexure 11), had suggested to the State Government to treat the petitioner relieved from the post of Executive Officer, Moradabad with effect from 281988. It has further been averred in the said para of the counterAffidavit that sanction oi the State Government for payment of 32 days salary to the petitioner was also sought through letter dated 1081988. The Nagar Palika, Moradabad was under no obligation for payment of salary to the petitioner after 281988 as he ceased to continue to the Executive Officer, Nagar Palika, Moradabad.

Learned counsel for the respondent Nos. 1 and 2 has vehemently argued that the petitioner did not comply with the order dated 2281988 (Annexure 8) vide which he was transferred to Balha as OfficermCharge, Nagar Palika and instead continued to stay at Moradabad. Therefore, the principle of "no work no pay" was fully applicable to his case. In reply learned counsel for the petitioner has drawn our attention towards Annexure 12 and has vehemently argued that in view of the Government Order the transfer of the petitioner stood automatically cancelled and now the argument as advanced by the learned counsel for respondent Nos. 1 and 2 was not available to him.

We have given thoughtful consideration to the rival arguments. Contents of the Government Order (Annexure 12) have been reproduced in the earlier part of this judgment. It has been clearly directed in the said communication as under :

"The Government has also decided that orders issued by the Urban Development and Director of Local Bodies after 3061968 in respect of employees/officials of all Local Bodies, Development Authorities, Special Area Development Authority and Jal Sansthan should not be acted upon if the transferred employees/officers have not yet been relieved by the controlling officer."

As mentioned earlier, the officerincharge Nagar Palika, Moradabad had suggested to the State Government that the petitioner be treated to have been relieved with effect from 281988. The State Government had not rightly approved of the said suggestion in view of the direction contained in Annexure 12. As the petitioner had not been relieved before 3061988 he could not be deemed to have been relieved with effect from 261988. The petitioner after having been reinstated had joined as Executive Officer, Nagar Palika, Moradabad on 3061988. Order dated 2271988 thereby transferring the petitioner from Moradabad to Ballia was served on him on 281988. Therefore, the Nagar Paiika, Morabadad was liable to make payment of salary of the petitioner for the period with effect from 3061988 to 281988. The admitted case of the petitioner is that he had received salary with effect from 3071993 to 2821994 from Nagar Palika, Bareilly, whereafter he had retired. The question that remains to be answered is as to who was liable to make payment of his salary for the period with effect from 381988 to 2971y93.

Learned counsel for respondent Nos. 1 and 2 has submitted that reinstatement order dated 2761988 was a composite order. Besides reinstating the petitioner he was also transferred to Ballia. But he in order to avoid joining at Ballia, made representation to the State Government and therefore unauthorisedly stayed back at Moradabad, and hence he was not entitled to any salary for the period in question. We do not find any force in the argument of the learned counsel for respondent Nos. i and 2. A persual of the record would show that the petitioner had filed a supplementary affidavit on 1811994 wherein he has mentioned that he had received a transfer order dated 1661993 issued by respondent No. 1 thereby transferring him from Nagar Mahapalika, Kanpur to Nagar Mahapalika, Bareilly, whereas the petitioner was never posted at Kanpur. It is not the case of respondent that the petitioner had been transferred and posted at Kanpur at any point of time. On receipt of the order dated 1661993 he went to Bareilly but was not allowed to join in Nagar Mahapalika, Bareilly for want of relieving certificate from the Nagar Mahapaiika, Kaapur. A copy of the order dated 1661993 has been annexed to the supplementary affidavit as Annexure S.A.I. Faced with such a situation he moved an application mentioning about the abovementioned facts therein. Letter dated 29101991, a copy whereof has been annexed as Annexure 1 to the amendment application, makes it further clear that the petitioner remained attached to Nagar Palika, Moradabad as Executive Officer. On receipt of the above said application dated 1671993 from the petitioner, letter dated 2871993 (Annexure S.A. 3) was addressed by the Joint Secretary to the Mukhya Nagar Adhikari Nagar Mahapalika, Barielly asking him to allow the petitioner to join the Nagar Mahapalika, Barielly within a weak. Thereupon he was allowed to join on 3071993. As a sequel to the above discussion :

(i) Nagar Palika, Moradabad, respondent No. 3 is directed to pay to the petitioner''s salary for the period with effect from 3061988 to 281988 ; and

(ii) State of U.P. through Secretary, Nagar Vikas Anubhag, Lucknow, and the Director, Local Bodies, Lucknow, respondent Nos. 1 and 2 respectively are directed to pay to the petitioner salary for the period with effect from 381988 to 2961993 along with other promotional and selection grade benefits.

These directions will be complied with by the respondents within six months from the date on which a certified copy of this judgment is furnished to them by the petitioner. Petition allowed.