Research › Browse › Judgment

Gauhati High Court · body

1995 DIGILAW 227 (GAU)

Kamal Bhuyan v. State of Assam and Ors.

1995-10-26

D.N.BARUAH

body1995
In this application under Article 226 of the Constitution of India, petitioner has prayed for issuance of appropriate writ or direction. The petitioner's main grievance is that his service has not been regularised for no fault of his. 2. The petitioner's case, in brief, is that he was appointed Power Pump Operator by the Executive (Agri), North Lakhimpur on 13.12.1972. Pursuant to the said appointment order petitioner joined duty on 15.12.72 and he served in that capacity for sometime. Thereafter, on 11.4.77 the petitioner joined in the office of the Executive Engineer, Eastern Assam, Ground Water Division (Irrigation), Jorhat on deputation as Power Plant Operator and served till June, 1978. Thereafter, he was transferred to Lakhimpur Division by the 2nd respondent by his order dated 23.9.77. However, this order of transfer was received by the petitioner in the last part of June, 1978. On receipt of the said order of transfer the petitioner went to join at Lakhimpur Division, however, he was not allowed to join on the ground that the authority did not receive any release order from the Jorhat Division. The petitioner was also not paid his salary. 3. Situated thus, the petitioner instituted a suit (TS 52 of 1984) in the Court of the Munsiff at North Lakhimpur. This suit was decreed. As per the said decree, a mandatory injunction was granted directing the authority to allow the petitioner to work as Power Pump Operator in the office of the 3rd respondent and also to pay salary since July, 1978. Appeal was preferred by the State Government against the decree passed by the Munsiff, which was dismissed. Again a second appeal (SA 130 of 1987) was also filed by the State Government before this Court. This Court disposed of the second appeal with certain modifications directing the authorities to allow the petitioner to join in the said post or in equivalent post in any place. 4. In pursuance of the order of this Court passed in second appeal on 24.6.88. the 3rd respondent allowed the petitioner to join in his original post as Power Pump Operator (STW) with effect from 14.7.88. The petitioner's service was confirmed by order dated 26.3.93 issued by the 3rd respondent along with some other employees. The other employees, who had joined duties on the same day are now given higher scale of pay than the petitioner. The petitioner's service was confirmed by order dated 26.3.93 issued by the 3rd respondent along with some other employees. The other employees, who had joined duties on the same day are now given higher scale of pay than the petitioner. When the matter was brought to the notice of the authority the petitioner was told that this was because he remained absent without leave for a period from 16.10.75 to 24.6.78. Hence the present petition. 5. An affidavit-in-opposition has been filed on behalf of the respondents. 6. I have heard Mr. GN Sahewalla, learned counsel for the petitioner and Ms. K. Yadav, learned Government Advocate for respondents. Mr. Sahewalla subrhits that the services of the petitioner has not been regularised without any reason and the ground of not working for the period mentioned is absolutely wrong, in fact, according to the petitioner he had worked during the period from 16.10.75 to 6.7.78. 7. In the affidavit-in-opposition filed on behalf of the respondents they have stated, inter alia, that the petitioner was released from service with effect from 16.10.75, however, he did not join in the place of posting i.e. at Sibsagar. Therefore, the petitioner is not entitled to get the increment as claimed, however, for the subsequent period, the petitioner has been given all the benefits. Ms. Yadav has produced relevant case records before this Court and I have perused the same. 8. Ms. Yadav submits that the petitioner did not join duties in the next place of posting at Sibsagar and therefore, the petitioner is not entitled to get any benefit for the period he was absent without leave. All the financial benefits have been given to the petitioner except the increment wef 1.12.75 to 6.7.78. 9. On hearing the counsel for the parties, now it is to be seen whether the petitioner was in service during the period from 16.10.75 to 6.7.78. From the records and the Service Book produced before me, it appears that the petitioner was transferred from Dibrugarh to Sibsagar and he was released by order dated 16.10.75 but the date under the initial was shown as 5/3 without mention ing. the year. However, nothing is mentioned in the Service Book that the petitioner did not join at Sibsagar as ordered. Besides, Mr. the year. However, nothing is mentioned in the Service Book that the petitioner did not join at Sibsagar as ordered. Besides, Mr. Sahewalla has also drawn my attention to the Annexure VII letter dated 13.11.81 written by the Executive Engineer, Sibsagar Division (Irrigation) Sibsagar to his counter part at Dibrugarh, stating, inter alia that "no joining date other necessary entry is recorded in the service book of the incumbent. Hence the service book of Sri Kamal Chandra Bhuyan, PPC is returned herewith for necessary entries from your end during the period of his incumbency in your Division." Besides no endorsement has been made in the Service Book to show that the petitioner did not join at Sibsagar. Ms. Yadav has drawn my attention to the Annexure VI letter dated 17.12.75 of the affidavit-in-reply and submits that the Executive Engineer, Irrigation (Agriculture Department), Dibrugarh informed the petitioner that the did not join at Sibsagar Division and no application for leave was received by the office. In my opinion, this cannot betaken to be a conclusive decision. At least, the Service Book of the petitioner does hot show anything in this regard. Though the Service Book was sent to Sibsagar Division for necessary endorsement nothing had been done. In view of the above, it cannot be said that the petitioner did not work during the period mentioned above. 10. For the foregoing reasons, I hold that the petitioner shall be treated as in service during the period from 16.10.75 to 6.7.78 and he is entitled regularisation of his service during the said period. Accordingly, I direct the respondents to regularise the service of the petitioner during the period mentioned above and also give all consequential benefits, including financial benefits, which the petitioner is entitled to as per law. With the above observation, the petition is disposed of. However, considering the facts and circumstances of the case, I make no order as to costs.