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2005 DIGILAW 474 (PAT)

Devendra Kumar Singh v. State Of Bihar

2005-05-03

NARAYAN ROY

body2005
Judgment 1. Heard counsel for the parties and considered the counter affidavit. 2. The petitioner has prayed for issuance of writ of mandamus directing the respondents to make payment of his arrears of salary with effect from 10th January, 1994 with interest. 3. It is submitted by learned counsel for the petitioner that by virtue of the order, as contained in annexure-1 dated 6.1.1994, the petitioner and other non-teaching staff were sent in Government Polytechnic and Women Industrial School, Motihari. The petitioners joining was accepted alongwith others on 10.1.1994. The petitioner, thereafter, worked there on the post of night guard, but his salary was not paid. The petitioner requested the authorities for payment of salary and when it was not paid to him, he approached this Court by way of this writ application. 4. In the meantime, the petitioner and several others were posted in BIT, Sindari vide memo no. 2747 dated 22.4.1994, but he was never relieved from the college in question and thereafter the petitioner continued to work in the college itself. 5. In these backgrounds, learned counsel for the petitioner submitted that since the petitioner has worked although right from 10th January, 1994, he is entitled for his salary and denial of the same would be negation of his fundamental right of property. 6. A counter affidavit has been filed on behalf of respondent nos. 2 to 4, wherein a plea has been taken that since the petitioner had disobeyed the order of the respondents, inasmuch he did not join at BIT, Sindari even after passing of the order of transfer, he would not be entitled for his salary. 7. This Court after hearing the parties directed the State counsel vide order dated 12.10.2004 to produce the relevant records of the case. Relevant records have been produced by learned counsel for the State. 8. Learned counsel for the State even after going through the relevant records could not point out as to whether the petitioner was ever relieved from Motihari for his joining at BIT, Sindari. However, learned counsel submitted that the petitioner throughout absented and on that account, his salary was not payable. 9. A plea has also been taken that there was only one post of night guard and two persons were the claimants. 10. However, learned counsel submitted that the petitioner throughout absented and on that account, his salary was not payable. 9. A plea has also been taken that there was only one post of night guard and two persons were the claimants. 10. Learned counsel for the State, however, is not in a position to demonstrate that for the prolonged absence of the petitioner any departmental action was taken against him, rather it is submitted by learned counsel for the petitioner that no action, whatsoever, was taken against the petitioner in this regard. 11. It appears from the submission of learned counsel for the parties that till date the petitioner is working in the college in question at Motihari without any salary. 12. In absence of any departmental action taken against the petitioner, it would be presumed that the petitioner has been allowed to work in the college in question and, thus, he would be entitled for his salary. 13. Considering the facts and circumstances of the case and for the reasons aforementioned, the respondent authorities are directed to pay his entire salary with effect from 10th January, 1994 till date within a period of three months from the date of receipt/production of a copy of this order. 14. With the direction/observation aforesaid, this application is disposed of.