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2001 DIGILAW 426 (ORI)

Mihir Kumar Pradhan v. State of Orissa

2001-09-28

B.PANIGRAHI, L.MOHAPATRA

body2001
JUDGMENT B. PANIGRAHI, J. — These two writ applications which arise from a judgment passed by the State Administrative Tribunal in O. A. No. 2713 (C) of 1994 have been heard together and are disposed of by this common order. 2. The petitioner in OJC No. 10240/99 was appointed as an Assistant Surgeon under the Health and Family Welfare Department with effect from 16.12.1976. He tendered his resignation on 17.11.1982 on account of his personal difficulties, but there was no order by the appointing authority showing that his resignation was accepted. The petitioner communicated through various letters asking the appointing authority to accept his resignation, but no order was received from their end. The petitioner seems to have proceeded on leave for indefinite period. Even then, the authori¬ties did not give him a place of posting. It appears that the petitioners submitted an application by expressing his intention to withdraw the resignation, a copy of which was annexed as Annexure-9 to the Original Application before the Tribunal in O.A.No. 2713(C) of 1994 filed on 17.1.1994. Thereafter also it did not evoke any response from the employer. Thereafter the Tribunal after hearing the petitioner and the State disposed of the matter by directing the authorities to give the petitioner a posting order after condoning the period of absence of thirteen years. It has also been further indicated in the order that since the petitioner has not worked during the above period, he shall not be permitted to draw salary for the said period. As such the Tribunal though allowed the application, yet deprived the peti¬tioner of back wages. Hence the petitioner has preferred the writ application in OJC No. 10240/99. The State has also filed OJC No. 10941/2000 challenging the order of the Tribunal. 3. Learned Advocate appearing for the petitioner applicant has submitted that because the employer sat tight without taking any decision on the subject of acceptance of resignation, he could not gainfully employ himself elsewhere and for the appli¬cant’s no fault, he should not be allowed to suffer and the learned Tribunal committed serious error in law in not directing the employer-State to release his salary for the entire period. Mr. Mohanty, learned Addl. Government Advocate appearing for the State has submitted that at the best the Government could have condoned five years’ absence by taking into account Rule 72 of the Orissa Service Code. Mr. Mohanty, learned Addl. Government Advocate appearing for the State has submitted that at the best the Government could have condoned five years’ absence by taking into account Rule 72 of the Orissa Service Code. Since the applicant did not also approach the Court for all these periods, in such back-ground, it would be open to the appointing authority to take appropriate action against the applicant. It has been further contended that even when the employer did not take any action on the resignation letter of the applicant, why did the applicant keep quiet for the entire period. Even from 8.7.1985, he sat tight till 1994. There¬fore, presumably he had no mind to work and accordingly he was not serious to join in service. 4. Upon hearing the submissions and counter submissions advanced by both parties and also on perusal of the judgment impugned before us, we find that when the applicant submitted his resignation and it was not accepted by the employer, it would have been appropriate for the employer at least to fix up the headquarters and initiate departmental action against the peti¬tioner for remaining absent from duty. They did not take action till the matter was agitated before the Tribunal. Even till date no posting has been given to the applicant. In the above back-ground, it is to be assumed that due to the fault of the Govern¬ment, no action could be precipitated as regards decision on the resignation letter. Therefore, in this back-ground, the Tribunal was justified in drawing a conclusion that the petitioner is deemed to be in service. 5. Then it is to be found out whether the petitioner would be entitled to back wages as claimed by him. Undisputedly, he has not rendered any work from the date of submission of resignation i.e. from 8.7.1985. Since the applicant did not work for all these periods, there is no justifiable reason for the employer to grant salary for the said period. But so far as continuity of the applicant’s service is concerned, we find that although Rule 72 prescribes the outer limit of five years, but in the peculiar situation, the authority can condone by treating it as extraordi¬nary leave and permit the petitioner to join in service. Accord¬ingly, we direct the Secretary, Health Department to give the applicant a posting within fifteen days and thereafter the peti¬tioner shall submit his joining report. Accord¬ingly, we direct the Secretary, Health Department to give the applicant a posting within fifteen days and thereafter the peti¬tioner shall submit his joining report. In case, the Health Department does not issue any order showing the place of posting of the petitioner, he shall be entitled to salary for the entire period. 6. Learned Advocate for the petitioner has relied upon the decision reported in AIR 1999 Supreme Court, 1571 (J.N. Srivastav v. Union of India and another). On perusal of the said judgment, we find that in the above case, the employee immediately after withdrawal of voluntary retirement had approached the Court and delay was caused on account of the pendency of the litigation. Therefore, the Apex Court took the view that the employer should be saddled to make good the salary to the employee. In the pecul¬iar situation of the present case, we find that the petitioner had submitted his resignation ever since 1985, but did not pursue till 1994 and allowed the matter to be docketed in the almirah of the Secretariat to gather dust for a period of nine years. Therefore, in the peculiar circumstances, the Tribunal’s order disallowing the claim regarding past salary is justified. 7. Both the writ applications are accordingly disposed of with aforesaid observation. There will be no order as to costs. L. MOHAPATRA, J. I agree. Applications disposed of.