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2003 DIGILAW 994 (JHR)

Triguna Nand Pathak v. State Of Jharkhand

2003-08-13

SUDHANSU JYOTI MUKHOPADHAYA

body2003
ORDER S.J. Mukhopadhaya, J. 1. This application has been preferred by petitioner against Clause 5 of memo No. 693 dated 14th March, 2000, whereby and whereunder, the District Superintendent of Education, Jamshedpur, East Singhbhum withheld the salary of petitioner for the period from 5th March, 1998 to 20th May, 1999. 2. The petitioner has taken plea that he has worked during the period from 5th March, 1998 to 20th May, 1999. On the other hand, the District Superintendent of Education, Jamshedpur has taken stand that there was no trace of petitioner being on duty. 3. To find out the claim and counter claim it is better to refer the order contained in memo No. 693 dated 14th March, 2000, English version of the order reads as follows :-- "Though, Shri Triguna Nand Pathak, Assistant Teacher was relieved on 16th October, 1997 vide memo 4387 dated 6h October, 1997 from Primary School, Nimtola, Jamshedpur-2 for Middle School, Potka-1, after adjusting him against a vacant post of metric trained scale of pay in pursuance of the decision of the Establishment Committee dated 13th September, 1997, for the purposes of payment, as he was continuing beyond the sanctioned post. Shri Pahak violating the order continued at Primary School, Nimtola, Jamshedpur-2 till 4th March, 1998 and on the ground or disability, he filed CWJC No. 2134 of 1998(R) before the Ranchi Bench of Honble Patna High Court against the adjustment order issued vide memo No. 4387 dated 6th October, 1997. In the meantime, as per direction of the department Shri Pathak was deputed for in service tenure training from 31st May, 1999. Again by order dated 19th August, 1999 of Honble High Court passed in CWJC No. 2134 of 1998(R), direction was given to take decision on the representation of Shri Pathak. In the meantime, as per direction of the department Shri Pathak was deputed for in service tenure training from 31st May, 1999. Again by order dated 19th August, 1999 of Honble High Court passed in CWJC No. 2134 of 1998(R), direction was given to take decision on the representation of Shri Pathak. In the circumstances, taking into account the representation filed in the light of decision in CWJC No. 2134/98(R) and that the salary had not been paid since October, 1997, and disability of petitioner and on sympathetic consideration, as per direction of Deputy Commissioner-cum-Chairman, District Education Establishment Committee, East Singhbhum, in special circumstances and on humanitarian ground Shri Trigunanand Pathak, transferred and relieved Teacher, Primary School, Nimtola, Jamshedpur-2 is adjusted and posted in a School nearer to his residence against metric trained scale vacant post and to remove the technical difficulties, following order is passed : (1) Paper posting is made to Middle School, Shankarda, Potka-1 for the purpose of payment of salary for the period of October, 1997 to 4th March, 1998 and 21st May 1999 till the date of issuance of letter. (2) The payment of salary for the period mentioned at serial 1 shall be made on the basis of absentee statement from the paper posting School, Middle School Shankarda, Potka-1. (3) After the date of issuance of the letter, salary shall be payable on the basis of absentee statement from the establishment of Primary School, Pradhan Tola, Jamshedpur-2. (4) After relieve from training, Shri Pathak will join Primary School, Pradhan Tola. (5) During the period from 5.3.1998 to 20.5.1999 for not complying with the departmental direction and for sign in his own Attendance Register, period from 5th March. 1998 to 20 May, 1999 shall be treated as absence from duty and the salary shall remain withheld. District Superintendent of Education, East Singhbhum, Jamshedpur" From the impugned order dated 14th March, 2000 it is clear that after the transfer there was no post vacant to accommodate the petitioner. For the said reason he has been adjusted against a metric trained scale vacant post by the order dated 14th March, 2000 to enable him to draw the salary. On the direction of the High Court, the representation was decided in favour of petitioner even in respect to the period he had not joined the transferred School, there being no vacancy. On the direction of the High Court, the representation was decided in favour of petitioner even in respect to the period he had not joined the transferred School, there being no vacancy. The petitioner was not allowed to sign in the general Attendance Register during the period from 5th March, 1998 to 20th, May, 1999 has not been disputed by the respondents. On the other hand it his been accepted by the authority that the petitioner signed but in a separate attendance register. 4. Even if the stand taken by the respondents is accepted that the petitioner had not obeyed the transfer order but it is clear that there was no occasion for the petitioner to join the transferred post there being no vacancy. 5. Apart from the fact that the authorities accepted that the petitioner signed in a separate register of Primary School, Nimtola, Jamshedpur during the period 5th March, 1998 to 20 May, 1999, the said period has not been held to be "unauthorized absence from duty amounting to misconduct." "Unauthorized absence from duty" may amount to or may not amount to misconduct. It all depends on individual cases. In certain cases an employee may remain unauthorized absence from duty, which is not willful, but because of circumstances, such as illness etc. It cannot be alleged to be misconduct. But in cases, if unauthorized absence from duty is willful, it may amount to misconduct. In this respect one may refer Rule 165 of the Bihar (Now Jharkhand) Service Code, 1952, as quoted hereunder :-- "(1) A Government servant who remains absent after the end of his leave is entitled to leave-salary for the period of such absence and that period will be debited against his leave account as follows, unless his leave is extended by the Government. (a) If the Government servant is governed by the Old Leave Rules, the period of absence will be debited against his leave account as though, it was leave on half average pay. (b) If the Government servant is governed by the Revised Leave Rules, the period of absence should be debited as follows :-- "(i) Government servants in Superior service; Half pay leave. (ii) Government servants in Inferior service; As earned leave (2) Wilful absence from duty after the expiry of leave may be treated as misconduct for the purpose of Rule 54." 6. (ii) Government servants in Inferior service; As earned leave (2) Wilful absence from duty after the expiry of leave may be treated as misconduct for the purpose of Rule 54." 6. In the case of petitioner, the respondents have not alleged that the petitioner was willfully unauthorized absence from duty for the period 5th March, 1998 to 20th May, 1999. They accepted that the petitioner continued in the Middle School, Nimtola even after the order of transfer dated 6th October, 1997. For the said reason, the salary of the period October, 1997 to 4th March, 1998 has been allowed in his favour. The petitioner, thereafter, continued in the Middle School, Nimtola was to the knowledge of the authorities, so he was relieved on 20th May, 1999 from Middle School, Nimtola to join in service training. 7. In the circumstances, there was no occasion for the respondent to withhold salary of the part period from 5th March, 1998 to 20th May, 1999. They were bound to determine as to how the period from 5th March, 1998 to 20th May, 1999 shall be counted and what salary to which the petitioner shall be entitled as per the Service Code. 8. The case is, accordingly, remitted to the District Superintendent of Education, East Singhbhum, Jamshedpur to determine as to how the period from 5th March, 1998 to 20th May, 1999 shall be counted and what salary to which the petitioner will be entitled as per Bihar (Now Jharkhand) Service Code, 1952 and to pay the admitted dues, if found payable, within a period of three months from the date of receipt/production of a copy of this order. 9. The petitioner may bring to the notice of the District Superintendent of Education, Jamshedpur, the circumstances in which he had to sign in a separate Attendance Register during the period aforesaid and favourable report, if any, submitted by any officer/Headmaster in this respect. 10. The writ petition is allowed with aforesaid observation and direction.