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2002 DIGILAW 943 (PAT)

Kashi Nath Jha v. State Of Bihar

2002-08-29

CHANDRAMAULI KR.PRASAD

body2002
Judgment 1. In this writ application prayer made by the petitioner is to quash the order dated 14.2.2001 (Annexure-1) imposing the punishment of withholding of one increment for two years and the decision dated 22.1.2002 (Annexure-C to the counter affidavit) whereby it has been decided that petitioner shall not be paid the salary for the period of suspension. 2. Shorn of unnecessary details, facts giving rise to the present application are that the petitioner was posted as Gage Reader in the Irrigation Department of State Government. According to him, he filed application on 26.2.99 for grant of casual leave from 28th February, 1999 to 2nd of March, 1999 before the Junior Engineer of Irrigation Division, Birpur, where he was posted. His further plea is that his leave was sanctioned and the Junior Engineer by letter dated 27.2.1999 sent the leave application with his recommendation to the Subdivisional Officer of the Irrigation Subdivision. According to him, in the attendance register the Junior Engineer entered remark casual leave for the period 28.2.99 to 2.3.99. His further case is that on 27.2.99 petitioner signed the attendance register and went to perform his duties but on account of discomfort in his stomach and loose motion, he informed another Gage Reader to do his duties and the petitioner came to the head office. According to him on 28.2.99 he proceeded on casual leave and came back to his duties on 3.3.99. On 1.3.99 one Adalat Mahto was performing the duty of the Gage Reader and some cracked appeared in the main canal because of the excess water and the same was noticed by the Gage Reader on duty. When this fact came to the notice of the authority the Chief Engineer on 5.3.99 came to conduct the enquiry and by order dated 6.3.99 (Annexure-2) petitioner was put under suspension. According to the said order, petitioner was assigned the duty of the Gage Reader from 10 P.M. of 1.3.99 to 6 A.M. of 2.3.99 and on account of his absence, the water level was not monitored which resulted into the crack in the canal and immense problem to the farmers of the locality. Thereafter a departmental proceeding was initiated by order dated 9.3.99 and the Superintending Engineer, Irrigation Division was appointed as the Conducting Officer and Technical Advisor to the Superintending Engineer, Irrigation Division as the Presenting Officer. Thereafter a departmental proceeding was initiated by order dated 9.3.99 and the Superintending Engineer, Irrigation Division was appointed as the Conducting Officer and Technical Advisor to the Superintending Engineer, Irrigation Division as the Presenting Officer. By the said order petitioner was served with the memo of charges (Annexure-3/1). The Conducting Officer held enquiry, following the procedure provided under law and ultimately submitted the report holding the petitioner guilty of misconduct. The Conducting Officer has found that although the petitioner had filed application for grant of leave for the period 28.2.99 to 2.3.99, but remained absent from 26.2.99. Petitioner was furnished with the copy of the enquiry report and he submitted his reply dated 15.1,2001. In his reply the petitioner has stated that he was paid the salary for the purported period of absence which clearly goes to show that the leave has been sanctioned. The disciplinary authority, however, in agreement with the report of the Conducting Officer held the petitioner guilty and passed the impugned order. 3. Counter affidavit has been filed on behalf of the respondents in which it has been stated that the petitioner absented from his duty with effect from 26.2.99 although he had submitted application for grant of casual leave for the period 28.2.99 to 2.3.99. It has been further averred that the petitioner proceeded on leave without getting the same sanctioned and ultimately the application of the petitioner for grant of leave was rejected. It has, however, been admitted that the petitioner was paid salary for the period 28.2.99 to 2.3.99 under some misconception and when it came to the notice of the respondents that the salary for the aforesaid period has been paid to the petitioner, same was directed to be recovered. 4. From the pleading of the parties, it is evident that the petitioner submitted application for grant of casual leave for the period 28.2.99 to 2.3.99 to the Junior Engineer, who is not competent authority to grant leave, and even without its sanction, he proceeded on leave. It is further not in dispute that the petitioner was paid salary for the period 28.2.99 to 2.3.99 but later on the same has been directed to be recovered. Further the application for grant of casual leave was ultimately rejected. 5. Mrs. It is further not in dispute that the petitioner was paid salary for the period 28.2.99 to 2.3.99 but later on the same has been directed to be recovered. Further the application for grant of casual leave was ultimately rejected. 5. Mrs. Mridula Mishra appearing on behalf of the petitioner submits that the petitioner has been visited with the penalty on the ground that the petitioner absented from duty unauthorisedly without the sanction of the leave but this conclusion is unfounded on fact. She points out that leave was sanctioned to the petitioner would be evident from the fact that in the attendance register the said period has been shown as casual leave. She emphasises that not only this, he was paid the salary for the period he was allegedly absent. According to her, same in no uncertain term establishes that the leave prayed for by the petitioner was granted. Mr. V.N. Sinha, G.P. IX however submits that a Government servant before proceeding on leave has to obtain prior sanction and it is not the case of the petitioner that he proceeded on leave after obtaining prior sanction. He points out that nothing prevents the competent authority to grant post facto sanction of the leave but mere filing of application for leave by an employee ipso facto shall not entitle him to proceed on leave. He submits that salary for the aforesaid period was paid to the petitioner under misconception and when it was realised that the petitioner has not been sanctioned leave, direction has been given to recover the salary for the period of absence. 6. On consideration of the rival submission one thing is clear that the petitioner proceeded on leave without its sanction. Further the prayer for grant of leave has been rejected later on. No order has been placed on record nor it has been pleaded that in fact leave was sanctioned. In sum and substance the plea of the petitioner is that this Court, in the fact of the present case, should assume that leave was granted to the petitioner. 7. Rules for grant of casual leave is provided under Appendix 13 of the Bihar Service Code. Rule 1(a) thereof which is, relevant for the purpose, reads as follows : "1(a). In sum and substance the plea of the petitioner is that this Court, in the fact of the present case, should assume that leave was granted to the petitioner. 7. Rules for grant of casual leave is provided under Appendix 13 of the Bihar Service Code. Rule 1(a) thereof which is, relevant for the purpose, reads as follows : "1(a). The Government of India, have ruled that Fundamental Rule 85 does not apply to casual leave for short periods, such leave is not recognized and is not subject to any rule. Technically, therefore, a Government servant on casual leave is not treated as absent from duty, and his pay is not intermitted. Government will not replace Government servant absent on such leave. The Government servant granting the leave and the Government servant taking it will be held responsible if the public service suffers in any way from the absence of the Government servant on casual leave. Casual leave, however, must not be given so as to cause an evasion of the rules regarding (i) date of reckoning pay and allowances; (ii) charge of office; (iii) commencement and end of interest. (iv) return to duty; or so as to extend the term of leave beyond the time admissible by rule. 8 From a plainreading of the aforesaid rule it is evident that the Government servant granting the leave and the Government Servant taking it will be held responsible if the public service suffers in any way from the absence of the Government Servant on casual leave. 9. Thus the grant of casual leave by the competent authority and its utilisation by the Government servant is not a matter of course. This rule has been engrafted keeping in mind that public service may not suffer on account of casual absence of an employee. In case the Government servant proceeds on leave without the sanction of the competent authority, the Government servant going on leave shall be held responsible if public service suffers in any way. However, in case of grant of casual leave by the competent authority, Government servant going on leave shall not be held responsible but the authority granting it. Petitioner has although submitted application for grant of casual leave to the Junior Engineer, who is not competent authority to grant sanction and absented himself from duty. No positive order for grant of leave has been passed. Petitioner has although submitted application for grant of casual leave to the Junior Engineer, who is not competent authority to grant sanction and absented himself from duty. No positive order for grant of leave has been passed. In fact, later, the same has been turned down. Payment of salary for the period of absence, in the absence of any positive order, in my opinion, shall not lead to an irresistible conclusion that the casual leave was sanctioned to the petitioner. To put the record straight, payment made to the petitioner has been directed to be recovered. During the absence of petitioner the canal had breached and thus the public service had suffered. When such an onerous responsibility has been fixed on the Government servant granting the leave its sanction has to be by specific order and the same cannot be assumed. Once it is held so, the petitioner shall be held to have absented from duty without leave and as such respondents are right in holding that the petitioner has committed the misconduct. Matter would have been different, had the respondents by positive order granted post facto approval of the leave. Any other view would lead to dangerous result and it may give licence to the employees to submit application and proceed on leave. 10. As regards the prayer of the petitioner for direction to pay the entire salary for the period of suspension, I am of the opinion that he shall not be entitled for the same. Petitioner has been found guilty of misconduct and visited with the penalty of withholding of one increment for two years. Hence he is not entitled for payment of entire salary for the period of suspension. 11. In the result, I do not find any merit in the application, and it is dismissed accordingly. No costs.