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2004 DIGILAW 522 (MP)

Harisingh v. State of M. P.

2004-07-05

S.K.SETH

body2004
JUDGMENT Petitioner who is on the verge of retirement had filed an application under section 19 of the Administrative Tribunals Act, 1985 to assail the validity of the order dated 26.7.2001 whereby petitioner's absence from duty from 19.10.2001 to 23.2.2002 has been treated as period spent on dies non. The relevant facts which are necessary for the disposal of the present case are as under. Petitioner is a member of the State Administrative Service and was posted as Joint Collector, Jhabua. By order dated 27.9.2001, the services of the petitioner along with other Joint Collectors were lent to the Narmada Valley Development Authority and the petitioner was posted as Land Acquisition-Cum-Rehabilitation officer, NHDC., Khandwa. Pursuant to the said order, petitioner was relieved on 18.10.2001. As usual instead of carrying out the said order, petitioner tried to resist it by filing an original application before the M.P. State Administrative Tribunal, Indore Bench, where it was registered as O.A. No. 1271/01. The said O.A. was dismissed by the Tribunal on 8.10.2001. Immediately petitioner filed a writ petition in the High Court wherein show cause notices were issued to the respondents. The writ petition came up for orders on interim relief on 19.10.2001. Learned counsel appearing for respondent sought time on that date to file reply while learned counsel for the petitioner prayed for interim relief. While allowing the prayer for time as made by the respondent, the Division Bench of this Court directed that no punitive action shall be taken against the petitioner until further orders of the Court. The said writ petition was ultimately decided by the Division Bench vide order dated 18.2.2002 with the direction to the petitioner to take up the new assignment within ten days from the date of the order with a liberty to the petitioner to make a representation for posting under the control of the G.A.D. as he has little less than two years service left to his credit. Petitioner submitted the joining and assumed duties on 25.2.2002. This fact has not been disputed. By order dated 15.5.2002, petitioner was transferred and posted until further orders on the post of Joint Collector, Shajapur. While petitioner was working on the post of Land Acquisition Officer, NHDC, Khandwa, he had applied for leave so as to regularise his absence from 19.10.2001 to 23.2.2002. The application was duly accompanied by the medical certificate. By order dated 15.5.2002, petitioner was transferred and posted until further orders on the post of Joint Collector, Shajapur. While petitioner was working on the post of Land Acquisition Officer, NHDC, Khandwa, he had applied for leave so as to regularise his absence from 19.10.2001 to 23.2.2002. The application was duly accompanied by the medical certificate. Petitioner had 360 days balance leave in his leave account, therefore, he sought the medical leave. The application was duly recommended and forwarded to the G.A.D. by the NHDC, Khandwa as is clear from Annexure A-7 dates 5.6.2002. There was some correspondence between the G.A.D. and NHDC and the requirements raised by the G.A.D. were met by the NHDC. Yet by the order impugned instead of sanctioning any leave, the period has been treated as dies non. Learned counsel appearing for the petitioner assailed the order on the ground that before issuing the order impugned, petitioner was neither afforded any opportunity of hearing nor any enquiry was held. He submitted that sufficient leave was available in the leave account, therefore, he ought to have been given leave. Learned counsel for petitioner further submitted that treating this period as dies non has serious civil consequences and, therefore, an enquiry was all the more necessary. It was also submitted by learned counsel for the petitioner that in compliance of the order dated 18.2.2002 passed by the Division Bench, petitioner had submitted the joining on 25.2.2002 i.e. within the period allowed by the Court and, therefore, also no punitive action was called for. Lastly, it was urged that petitioner has been made a victim of hostile discrimination. In this connection, learned counsel for the petitioner submitted that a person whose name appears at serial No.6 working on the post of Deputy Collector, Dewas also failed to join within the prescribed joining period, yet his absence has been condoned and the period has been regularised by sanctioning 49 days of earned leave. Thus, Shri Sethi submitted that the order impugned is unsustainable in law. After notice respondent has filed reply and the main thrust of their contention is that petitioner is a habitual absentee, therefore, respondent has treated the absence from 19.10.2001 to 23.2.2002 (total 128 days) as dies non. The return is conspicuously silent with regard to the allegation of non-issuance of show cause notice or holding of enquiry. After notice respondent has filed reply and the main thrust of their contention is that petitioner is a habitual absentee, therefore, respondent has treated the absence from 19.10.2001 to 23.2.2002 (total 128 days) as dies non. The return is conspicuously silent with regard to the allegation of non-issuance of show cause notice or holding of enquiry. After having heard learned counsel for the parties at length and going through the material available on record, in the considered opinion of this Court, the order impugned cannot be allowed to stand. From the facts stated herein above, it is clear that on 18.2.2002 while disposing of the writ petition filed by the petitioner a direction was given to the petitioner to take up the new assignment at Khandwa pursuant to the order dated 27.9.2001 within ten days. Prior to 18.2.2002 on 19.10.2001 respondents were restrained from taking punitive action. The order passed on 19.10.2001 was taken note of by the Court while passing the order dated 18.2.2002. Undisputedly, petitioner has submitted the joining within the time allowed by the High Court. The effect of this, in the considered opinion of this Court, earlier delay in submitting the joining was condoned and wiped out by the Division Bench of this Court especially when the petitioner had submitted the joining in compliance of the order dated 18.2.2002. Respondents cannot be allowed to sit over the order of the Division Bench of the High Court and that too without issuing any show cause notice or holding any enquiry. That does not mean that now the respondents can issue show cause notice or hold any enquiry. The order of the High Court has attained finality and cannot be over reached in this manner. Accordingly, the order dated 26.7.2002 is hereby quashed. Respondents are directed to process the leave application submitted by the petitioner in accordance with law and shall pass appropriate orders on the said application within a period of fifteen days from the date of communication of this order as the petitioner is going to retire on 31.7.2004. In view of the foregoing discussion, writ petition is allowed. However, no orders as to costs. C.C. in 3 days on payment of usual charges.