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2005 DIGILAW 453 (HP)

NARINDER KUMAR v. STATE OF H. P.

2005-11-29

M.R.VERMA, S.S.NEGI

body2005
JUDGEMENT Justice M.R. Verma, J. (Retired Chairman (Oral).: Since common question of law and facts are involved in all these four applications, therefore they are being disposed of by this common order. 2. The applicants in these original applications are aggrieved by the order dated 24.6.11.2004 whereby the Deputy Director Education has directed the, Principals/Headmaster of the concerned school that salary cases of the surplus period be examined in the light of instructions contained in letter dated 21.6.2004 and that the period of being surplus be treated as leave without pay and not regularized by granting leave of the kind due. As per instructions dated 21.6.2004 referred to above, the aforesaid instructions have been ordered to be observed by the concerned. 3. The common case of the applicants is that pursuant to their respective transfer orders, they joined their duties at the stations to which they were transferred. However, the incumbents of the posts to which the applicants were respectively transferred filed original applications challenging their respective transfer in which operation of transfer orders were stayed by this Tribunal. However, having join at the places to which the applicants were transferred they continued toward there and were not declared surplus nor were asked to join at another place. However on the strength of aforesaid instructions, respondents did not release the salaries for the months of October 2003 to November, 2003 in respect of Hukam Chand applicant in OA. No. 336/05, for the months of September and October, 2003 in the case of Ram Chander applicant in OA No. 339/05, for the months of August 2002 to December, 2002 in case of Surinder Kumar applicant in OA. No. 329/05 and for the months of July, 2003 to September, 2003 in case of Narinder Kumar applicant in OA No. 334/05. Aggrieved by the action of the respondents, the applicants filed present original applications for directions to the respondents to release salaries without treating their period of duty as a period without pay or leave of the kind due. 4. The respondents did not file any reply despite repeated opportunities and more than nine months time to do the needful. Therefore, right of the respondents to file replies was closed. 5. We have heard learned counsel for the applicants and -learned Deputy Advocate General for respondents and have also perused the material placed on record. 6. 4. The respondents did not file any reply despite repeated opportunities and more than nine months time to do the needful. Therefore, right of the respondents to file replies was closed. 5. We have heard learned counsel for the applicants and -learned Deputy Advocate General for respondents and have also perused the material placed on record. 6. Be it state at very outside that while dealing with a similar matter as in hand, this Tribunal in Devi Singh Vs. State of Himachal Pradesh and others (OA. No. 1638/05) decided on October 26,2005 has held as underlay be that the Govt, has issued the aforesaid guidelines as the employer to meet a situation where two employees are posted at the same station against one post. However, even such guidelines/ executive instructions not shown to have any legal sanction are a subject matter of review by the court and an order made by an authority on its subjective satisfaction can be set aside by the court inter alia in a case where the authority has disabled itself from applying its mind to the facts of each individual case by self created rules/instructions/guidelines or in any other manner. The effect of the contents of Annexure R/1 apparently is that it disables the competent authority from applying its mind to the facts of each individual case and ignores the interest of the person who abides by its orders and protects the interest only of such person who saves himself from complying with the orders on the strength of a stay order. 7. The aforesaid instructions are of punitive nature inasmuch as they require an employee who has obeyed the orders and has actually worked, to apply for the leave of kind due to get his pay/salary released. The above instructions/guidelines apart from being sans any statutory/legal sanction are diametrically opposed to the principle of natural justice, equity and good conscious. Therefore, the respondents cannot with hold the salary of the applicant on the strength of such guidelines/instructions. 8. There is yet another aspect of the matter. As already stated herein above, the effect of implementation of guidelines as in Annexures-R/1 is punitive. In other words implementation of these guidelines amounts to punishment. Therefore, the salutary principle of natural justice viz audi-alteram-partem which has now bf come party of our jurisprudence, is attracted and executive instructions cannot or Tide the said principle. As already stated herein above, the effect of implementation of guidelines as in Annexures-R/1 is punitive. In other words implementation of these guidelines amounts to punishment. Therefore, the salutary principle of natural justice viz audi-alteram-partem which has now bf come party of our jurisprudence, is attracted and executive instructions cannot or Tide the said principle. In the case in hand the action of respondents in withholding the pay of the application for relevant period till he applies for leave of the Kind due is an unilateral action without affording any opportunity to the applicant to explain his case to claim salary for the said period without being forced to apply for leave. Thus even on this score, the action of the respondents is unsustainable, illegal and thus liable to be set aside." 9. A similar view has been taken by this Tribunal in Rajinder Pal Vs. State of Himachal Pradesh, Latest HLJ 2005 (HP) 257. 10. In the case is hand is not disputed by the State that the applicants were transferred and they joined at their respective places of posting in compliance with the transfer orders passed by the competent authority. The claim of the applicants that they actually worked at the respective places of their posting during the period relevant to each of them has also not been denied by the State. Thus, there is no lapse or fault on the part of the applications to justify the action of the respondents in not releasing the salaries of the applicants for the aforesaid period and in treating such period as a period without pay or regularize said period by treating it as leave of the kind due. The cases of the applicants are squarely covered by the aforesaid orders of this Tribunal. 11. In view of the above, all these original applications are allowed to the extent that the respondents are directed to pay the salaries of the applicants for the respective periods for which those have not been released within one month and not to treat the dispute period without pay or insist that all the applicants should apply for the leave of the kind due for the said period to regularize the period in question for the purpose of release of their salaries.