JUDGMENT 1. - Heard learned counsel for the parties. 2. This appeal has arisen on peculiar facts and circumstances of this case. In the first instance, the appellant has come before this court through S.B. Civil Writ Petition No. 85/89, seeking a mandamus that the respondent State Government may be directed to keep the posting of the petitioner as well as his wife at one station as for as possible, who too is a Government Servant, In consonance with the Government Policy of keeping husband and, wife together. The writ petition was disposed of on 28,7,1990 directing the State Government to consider the reasonable request of the petitioner that the husband and wife should be kept at one station as for as possible. 3. In compliance of the aforesaid direction, petitioner/appellant was transferred to Homoeopathic Hospital, Purani Abadl, Sriganganagar vide order dated 24.11,1990, However, It is alleged that to accommodate one Ms. Pushpa, by order dated 9.4,1991 he was transferred to Suratgarh. 4. This led to filing of a civil suit before the Additional Munsif, Sriganganagar in which temporary injunction application was also made. On 20.8.1991 an order was made by the Additional Munsif after hearing both the sides that till final orders, the petitioner be not relieved form his present place of posting in pursuance of the order dated 9.4.1991. Thereafter, on 31.9.1991, the respondent No. 2 passed another order, transferring the petitioner from Purani Abadi, Sriganganagar to Homoeopathic Hospital, Bikaner and thereafter on 10.9.1991, recalled the order dated 9.4.1991. The order dated 31.8.1991 was served upon the petitioner on 15.10.1991, but prior to that on 4.10.1991, the order was passed by the Munsif, Sriganganagar, upon an application made by the petitioner, to maintain status quo in respect of the order dated 31.8.1991 and thereafter the petitioner was allowed to continue at the place of his posting at Sriganganagar. The temporary injunction came to be vacated on 22.2.1993 and appeal was also dismissed on 27.3.1993. Thereafter the petitioner joined duty at Bikaner on 2.4.1993. As the petitioner was not paid the salary for the interregnum period prior to 2.4.1993 since the date he was allegedly relieved in pursuance of order dated 31.8.1991, he made a representation before the respondent to make payment of salary for the period from 3.10.1991 to 1.4.1993. Thereafter the petitioner joined duty at Bikaner on 2.4.1993. As the petitioner was not paid the salary for the interregnum period prior to 2.4.1993 since the date he was allegedly relieved in pursuance of order dated 31.8.1991, he made a representation before the respondent to make payment of salary for the period from 3.10.1991 to 1.4.1993. It has been contended that prior to 10.9.1991, an order had been passed by the respondent No. 2 on 31.8.1991 which was sought to be communicated to the petitioner through endorsement made by the Deputy Director on 1.10.1991. The above transfer order was served on the petitioner on 15.10.1991 whereas a stay order was passed by the learned Munsif, Sri Ganganagar on an application of the petitioner on 4.10.1991 to maintain status quo in respect of the above transfer order. Therefore, he was allowed to continue to remain at the same place of posting as per the order dated 4.10.1991. 5. The respondents have contended that on 3.10.1991, he has been relieved from the place of posting but he did not join at Bikaner, until 2.4.1993. 6. This has led to filing another writ petition. The petitioner sent a notice through his advocate on 29.1.1994 for the payment of salary for the aforesaid period and he was informed on 7.3.94 that a departmental enquiry was pending regarding the absence of the petitioner during the aforesaid period and thus the question of salary could be decided only after the completion of the enquiry. 7. However, no enquiry, in fact, was instituted at that time. The Deputy Director ordered to make payment of salary to the petitioner for the period in question. Still salary having not been paid, the petitioner filed Writ Petition No. 929/97 which was decided by the learned single Judge of this Court on 26.2.1997. The Court noticed that even after having received notice for demand of justice through his counsel on January 29, 1994 the respondents have not thought it fit to consider the representation submitted by the petitioner. The petition was disposed off with the direction that the petitioner shall make a fresh representation within four weeks to the Deputy Director Homeopathy, Ajmer detailing out the factual aspect along with the copy of the order. The petition was disposed off with the direction that the petitioner shall make a fresh representation within four weeks to the Deputy Director Homeopathy, Ajmer detailing out the factual aspect along with the copy of the order. If any such representation is made, the same shall be considered and decided objectively by a speaking order and in case, it is decided in his favour, absence of the petitioner be adjusted towards leave and decision shall be taken to make payment of salary for the said period, he was to be paid salary immediately and in case the petitioner's claim is declined, then too he was to be intimated with the reasons. 8. It is in these circumstances, notwithstanding that the Additional Director directed to pay salary to the petitioner earlier, the respondents Instead of deciding the representation, served the petitioner with a charge-sheet dated 13.10.1997. alleging the wilful absence from duty for the aforesaid period. 9. This led to filing the present writ petition alleging that the initiation of the enquiry was malafide and apparently to defeat the claim of the petitioner of the salary for the period which was subject matter of the litigation in which the interim orders as aforesaid have been passed. 10. The writ petition has been dismissed by the learned Single Judge by holding that the question of entitlement of the petitioner to be paid salary, obviously will be decided by deciding the questing as to whether he was available on duty or not, and since that being a disputed question of fact, that being the fundamental question to be gone into in the departmental enquiry, the learned Single Judge was not inclined to interfere in the writ petition. The petition was not considered on merits. 11. Hence this appeal. 12. It is urged by the learned counsel for the appellant that his basic contention is that the institution of enquiry was motivated to deny the petitioner his claim of salary which has at all not been considered by the learned Single Judge and the matter has been decided only on the petitioner's claim of his salary for the period from 3.10.1991 to 2.4.1993. He has urged that a clear case of malafide on the part of the respondents has been established. He has urged that a clear case of malafide on the part of the respondents has been established. Yet without examining the material placed on record the petition was dismissed on the petty ground of disputed question of fact whereas no dispute on fact has been noticed by him. 13. On the other hand, the learned counsel for the respondents has contended that the petitioner was wilfully absent from duty during the period from 3.10.1991 to 1.4.1993 and did not report on duty. Whether he was relieved prior to communication of order dated 20.8.1991 from the post at Sriganganagar where he was continuing under the order of the Court maintaining status quo dated 4.10.1991, is a disputed question of fact that what was the status quo on 4.10.1991 and the petition has rightly been dismissed by the learned Single Judge. 14. We are of the opinion that the material available on record clearly establishes that the petitioner has not been dealt with fairly by the respondents. In spite of interference by the Court, the respondents have actuated with ulterior motive and were bent upon to transfer the petitioner from the place of posting at Sriganganagar on some ground or the other to infructuate the order of Court to act in accordance with the policy of keeping husband and wife at one place. 15. The chain of events clearly suggests that the petitioner having been transferred to another place and separated from his wife, who is also a Government servant, and having failed to get a fair consideration of his representation from the respondents to get a common place of posting for both of them under policy promulgated by the State itself, approached this court, in the first instance. On 28.7.1990, this Court directed the State Government to consider the reasonable request of the petitioner to keep the husband and wife at one station as far as possible. This direction was given effect to by order dated 24.11.1990. However, within six months of that order, the petitioner was again transferred from Sriganganagar to Suratgarh vide order dated 9.4.1991, resulting in the same position. This direction was given effect to by order dated 24.11.1990. However, within six months of that order, the petitioner was again transferred from Sriganganagar to Suratgarh vide order dated 9.4.1991, resulting in the same position. The petitioner again approached by way of a civil suit which was preferred before Additional Munsif, Sriganganagar, who by a speaking order dated 20.8.1991, after hearing both the parties on the application for temporary injunction tin ally disposed of the same finding prima-facie that the transfer of the petitioner from Sriganganagar to Suratgarh was made malafide to accommodate one another candidate Ms. Pushpa. It appears that stung by said finding, barely 11 days thereafter during the pendency of the suit, by order dated 31.8.1991 another order was made for transferring the petitioner to Bikaner instead of Suratgarh, as order data 9.4.1991 was under challenge and interim order has been passed for not giving effect to the said order dated 9.4.1991. Apparently, this was an act of nullifying the judicial order by a subterfuge and to see that the petitioner does not get the fruits of litigation at any cost notwithstanding it was a second order in less than year made by respondents against their own policy of keeping the husband and wife at one place and action contrary to it was interfered with by the Courts. The petitioner having come to know about the order dated 31.8.1991 again approached the court for maintaining status quo in respect of transfer order dated 31.8.1991. On 4.10.1991 the court again passed an order to maintain status quo. This order having come into operation, the respondents took the stance that the incumbent was relieved on 3.10.1991 and sought to make the fact of status quo as contentious issue. 16. Ultimately, an application for temporary injunction in respect of the order dated 31.8.1991, was dismissed on 21.2.1993 and the petitioner joined on 2.4.1993. But the petitioner is not getting the salary for the period from 3.10.1991 to 2.4.1993. 17. After the petitioner's representation and notice for demand of justice for payment of salary for the period in question were not responded to, as has been noticed by the learned Single Judge deciding the Writ Petition No. 929/97 on 26.2.1997, that the respondents have unnecessarily avoided to consider the representation. 17. After the petitioner's representation and notice for demand of justice for payment of salary for the period in question were not responded to, as has been noticed by the learned Single Judge deciding the Writ Petition No. 929/97 on 26.2.1997, that the respondents have unnecessarily avoided to consider the representation. In that order, the learned Single Judge has also noticed the order of the Additional Director dated 5.12.1995 directed the Deputy Director Homoeopathic directly by name to make payment of salary for the period in question to the petitioner forthwith without delay. It was also mentioned in that order that the Deputy Director has earlier been directed to make such payment to the petitioner in view of the interim orders passed by the Courts, but the same have not been complied with by him. He was also cautioned that failure to comply with the direction may entail disciplinary proceedings against the addressee officer who is avoiding compliance. This too is an admitted document as Ex.-15 on record. In this connection reference was made to earlier letters dated 25.10.1994. 20.12.1994 and 7.4.1995. He was also cautioned that failure to comply with the direction may entail disciplinary proceedings against the addressee officer who is avoiding compliance. This too is an admitted document as Ex.-15 on record. In this connection reference was made to earlier letters dated 25.10.1994. 20.12.1994 and 7.4.1995. it is relevant to reproduce said letter in to to dk;kZy; funs'kd] vk;qosZn foHkkx jktLFkku] vtesj dzekad % izfr 5@v0vfu@76@foHkkx@95 fnukad % Jh oklqnso ckykuh] mi funs'kd] gksE;ksiSfFkd vtesjA fo"k;& jktk lqjsUnz eksgu] gksE;ks] fpfdRld ds vof'k"V Dyseksa ds lEcU/k esa izlax& bl dk;kZy; dk i=kad % izfr 5@v0vfHk@76@foHkkx@94@16753@54 fnukad i-4-95 lanfHkZr fo"k; dh vksj vkidk /;ku vkdf"kZd dj ys[k gS fd funs'kky; ds i=kad fnukad 25-01-94] 20-12-94 ,oa 7-4-95 }kjk vkidks ;g funsZ'k fn;s x;s Fks fd gksE;ks0 fpfdRld Jh lqjsUnz eksgu ds lUnHkZ esa U;k;ky; }kjk fn;s x;s fu.kZ;@LFkxu vkns'k dh fLFkfr dks /;ku esa j[krs gq, vof'k"V osru dk Hkqxrku fd;k tk;sA mDr i=ksa ls iwoZ Hkh vkidksa funsZ'k fn;s x;s Fks] ysfdu vkids Lrj ls fdlh Hkh izdkj dh iq[rk dk;Zokgh ugha dh tk jgh gSA QyLo:i deZpkjh ds vof'k"V osru fLFkfrsj.k dk la/kkj.k ugha gks jgk gS vkSj ekgokj osru Hkh de fey jgk gSA vr% vfUre ckj vkidksas vkxkg fd;k tkrk gS fd 7 fnol ds vUnj&vUnj mDr fpfdRld ds vof'k"V Dyseksa dk fuLrkj.k djok;k tk;s] vU;Fkk mDr foo'k gksdj vkids fo:) vuq'kklukRed dk;Zokgh izLrkfor dj nh tk;sxhA ,l0Mh@& vfr0 funs'kd izfrfyfi % 50097&98 5-12-95 1- MkW0 jktk lqjsUnz eksgu] jktdh; gksE;ksiSfFkd fpfdRlky;] gfjtu cLrh chdkusj dks lwpukFkZA ,l0Mh@& vfr0 funs'kd Copy of letter dated 29.10.1994 is also on record to the same effect as Ex.-14. 18. We may also notice that much prior to letter dated 25.10.1994, vide letter dated 7.3.94, the Collector, Sriganganagar has been informed by Directorate of Ayurved about petitioners claim that an enquiry against petitioner is pending and it is not possible to make payment prior to completion of enquiry. This was in response to Collector's letter dated 10.2.1994. However, in fact no enquiry was pending on such date. 19. It is now well settled that the enquiry can he said to be pending only when the charge-sheet has been served or, the delinquent officer. There is no dispute about the fact that the memorandum along with charge-sheet was issued only on 13.10 1997, meaning thereby, that no departmental enquiry was pending in respect of absence from duty on 7.3.1994. It is now well settled that the enquiry can he said to be pending only when the charge-sheet has been served or, the delinquent officer. There is no dispute about the fact that the memorandum along with charge-sheet was issued only on 13.10 1997, meaning thereby, that no departmental enquiry was pending in respect of absence from duty on 7.3.1994. Apparently, a deliberate wrong statement of fact was made by the Additional Director to the Collector, Sriganganagar informing him as to why the payment of salary for the period from 3.10.1991 to March, 1993 was not made for the reasons best known to the respondent department. 20. Significantly, after the stand taken by the Directorate of Ayurved, Ajmer in its letter dated 7.3.1994, since 29.10.1994 the Additional Director from Directorate of Ayurved was consistently issuing direction to make payment of salary for the period in question to the petitioner after noticing that the petitioner is getting less than the salary due to him. This reflects clearly that consideration of holding an enquiry even if it was in the mind of department while writing letter dated 7.3.1994 was there, it was satisfied that payment for the period in question was justly due to the petitioner and repetitive directions were issued to Dy. Director, Sriganganagar to make the payment of salary for the period in question since 27.10.1994. 21. Having not been able to secure his salary, despite such direction issued by the Directorate of Ayurved, the petitioner again approached this Court by way of filing a writ petition bearing S.B. Civil Writ Petition No. 929/97 and the same was disposed of by the Court on 26.2.1997 as noticed earlier. 22. It is only when it became imperative for the respondents to decide the matter for payment of salary for the period aforesaid and the circumstances clearly made out that in view of the directions of the department itself payment shall have to be made that a memorandum along with charge-sheet dated 13.10.1997 was issued to avoid delay and deny the payment of salary for the aforesaid period. 23. Apparently, it was not a bona fide action on the part of the respondents. 23. Apparently, it was not a bona fide action on the part of the respondents. Having suffered two court orders, one from this court and another from Civil Judge's court, the respondents were under obligation to keep husband and wife at one station as far as possible in the light of their own policy and after giving him the posting at one place and defying of the policy again after six months to unsettle the petitioner from Sriganganagar, to make room for another, which was found to be prima-facie mala fide, the respondents indulged into a subterfuge by withdrawing the order dated 9.4.1991, after passing a fresh order of transfer in an attempt to infructuate the order dated 20.8.1991 and then creating a situation of confusion which ultimately resulted into dismissal of the application also. Apparently, it betrays an obsession that in any case the petitioner be removed from Sriganganagar even if the matter is sub-judice and the interim order is operating against the petitioner. 24. Thereafter the Deputy Director resisted to comply with successive directions of Additional Director for making payment for the disputed period to the petitioner. Yet notwithstanding taking any action against such Deputy Director for defiance attitude, when ultimately it came to give finality to the long protracted harassment, the petitioner was served with charge-sheet as aforesaid. 25. In the aforesaid back-ground. the only conclusion which one can reasonably reach is that enquiry, initiated by issuing charge-sheet dated 13.10.1997 in respect of wilful absence from duty for the aforesaid period during which the aforesaid litigation was pending and interim orders were operating in favour of the petitioner is malafide. The temporary injunction came to be vacated only in March, 1993: soon after vacation of temporary injunction, the petitioner has joined the duty at the place of his new posting. Claim for salary which was initially withheld, ostensibly pending conclusion of enquiry is March, 1994, when in fact, no enquiry was pending. The enquiry was not initiated until after direction of the Court to decide representation of the petitioner after noticing that after letter dated 7.3.1994, the Directorate of Ayurved itself has directed to release payment to the petitioner repeatedly. This hetrayes that no enquiry was even contemplated at that stage and department was satisfied about the bona-fide claim of the petitioner. Still, again to defeat the direction of the court dated 26.2.1997. This hetrayes that no enquiry was even contemplated at that stage and department was satisfied about the bona-fide claim of the petitioner. Still, again to defeat the direction of the court dated 26.2.1997. instead of acting upon it as per earlier directions, the respondents have initiated an enquiry in respect of said period after about 6 years is clearly suggestive of the fact that to stretch such a course of continuous harassment with its employee was motivating to defeat the direction issued by the Court successively and its own earlier orders. Apparently the initiation of enquiry vide communication dated 13.10.1997 suffers from malice in law and cannot be sustained. 26. The learned Single Judge has not examined the material on record from which aforesaid conclusion is obvious and refusal to examine the case on merit without alluding to real controversy has resulted in failure of justice. 27. Accordingly, the appeal is allowed. The judgment of the learned Single Judge is set aside. As a result of our conclusion, the writ petition is allowed. The enquiry initiated vide communication dated 13.10.1997 is quashed. 28. In the facts and circumstances of this case, we are of the opinion that the petitioner cannot be denied the salary for the aforesaid period during which the interim order passed by the civil court was in force and the fact that the respondents have acted. as a matter of fact, to defeat the interim order passed by the Munsif in the first instance on 20.8.1991. They have subsequently failed to honour their own directions dated 27.10.1994, 20.12.1994, 7.4.1995 and 5.12.1995. 29. We, therefore, direct the respondents to release the salary of the petitioner for the period from 3.10.1991 to 2.4.1993 within a period of three months with interest on the arrears of salary @12% p.a. from the date of direction dated 5.12.1995 until the date of actual payment.Appeal Allowed - Order of Single Judge Set Aside. *******