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2006 DIGILAW 174 (PAT)

Shaligram Prasad v. State Of Bihar

2006-02-17

RADHA MOHAN PRASAD

body2006
Judgment 1. In this writ petition, prayer is to quash the order dated 4.3.2004 passed by the Chief Engineer, Minor Irrigation Department, Patna (respondent no. 2), whereby and whereunder the petitioner has been treated as absent from duty from 18.1.2003 to 16.9.2003 and has further been asked to submit application for grant of earned leave for the said period. 2. In short, the relevant facts are. that the petitioner while posted as Typist in the office of the Executive Engineer, Minor Irrigation, Patna Division was transferred to the office of the Executive Engineer, Minor Irrigation Division, Aurangabad, vide order dated 26.12.2002 (Annexure 1) issued by the Chief Engineer, Minor Irrigation Department, Patna (respondent no. 2). The name of the petitioner finds place at serial no. 6 in the said order. The said transfer order itself clearly mentioned that all transferred employees must be relieved by 15th January, 2003 and that their salary of January, 2003 shall be paid from their new place of posting. 3. The case of the petitioner is that pursuant to the order of transfer, he was relieved from his post at Patna Division on 11.1.2003 and he joined at his transferred place on 18.1.2003. The person at serial no. 3, namely, Sunit Kumar, who was transferred to Patna, was not relieved from the post on which the petitioner was required to take charge. It is alleged that the petitioner was neither being given the charge nor his attendance was being marked and hence salary was not paid to him. The petitioner made several representations to the authorities concerned for giving effect to his transfer order by handing over charge to him on transferred post but still nothing was done and the petitioner was constrained to approach this Court by filing writ petition, bearing C.W.J.C. No. 8126 of 2003 upon which he was given charge of the transferred post by the order of this Court, contained in Annexure 8. 4. It is submitted that the petitioner though was entitled for salary for the period in question, but the respondent authorities started pressurising him to apply for earned leave and by the impugned order treated him absent from duty during the said period. 4. It is submitted that the petitioner though was entitled for salary for the period in question, but the respondent authorities started pressurising him to apply for earned leave and by the impugned order treated him absent from duty during the said period. The petitioner has also alleged that he was not given the charge of the transferred post for mala fide reason as is evident from the fact that the "person working on the said post was not relieved. 5. In LA. No. 4352 of 2003, the petitioner has also prayed for quashing of the order of punishment dated 30.4.2005 (Annexure 18) passed by the Deputy Secretary, Minor Irrigation Department, Government of Bihar, besides the entire departmental proceeding, including the memo of charges dated 6.5.2004 served upon him, contained in Annexure 14. 6. By the order contained in Annexure 18, while concluding the departmental proceeding, the petitioner has been imposed with the punishment of censure for the year 2003-04 and also for recovery of Rs. 21,884/- from him. The reason for recovery mentioned in the said order is that on account of disobedience of the order, indiscipline and the mistake of this petitioner, Sunit Ram, Typist was paid full salary during his suspension period without taking work from him and, as such, the said amount has been sought to be recovered from this petitioner. 7. It appears that this Court, vide order contained in Annexure 8, disposed of the earlier writ petition filed by the petitioner after noticing the fact stated in the counter affidavit filed therein that the concerned Executive Engineer has been asked to submit his explanation and action has been taken against Sunit Kumar Rai and that the respondents are not averse to accepting the petitioners joining at the new place of posting and directed the petitioner to approach the Executive Engineer, Aurangabad within one week when his joining would be accepted and he would be allowed to function on the post. As regards the intervening period of absence from duty, the Court without expressing any opinion directed that it will be for the concerned authority to deal with the petitioner and/or others in this regard. 8. A counter affidavit sworn by the Executive Engineer, Minor Irrigation Division, Aurangabad has been filed. As regards the intervening period of absence from duty, the Court without expressing any opinion directed that it will be for the concerned authority to deal with the petitioner and/or others in this regard. 8. A counter affidavit sworn by the Executive Engineer, Minor Irrigation Division, Aurangabad has been filed. In paragraph 6 of the said counter affidavit it is admitted that the petitioner joined the office of the Executive Engineer, Minor Irrigation Division, Aurangabad on 18.1.2003, but it is alleged that thereafter he remained wilfully absent from the office till 16.9.2003 and in this regard reliance has been placed on the attendance register in which the petitioner had not put his signature. Thus, it is contended that his claim for salary for the absence period is baseless. In paragraph 7 it is further alleged that the petitioner has neither tried to take over charge from Sunit Kumar Rai nor made any complaint to higher authorities and he remained absent from duty and complaint in this regard was submitted before the Superintending Engineer, Minor Irrigation Circle, Sasaram. The Executive Engineer has taken the defence that the petitioner was responsible on account of which Sunit Kumar Rai was relieved only on 13.6.2003 by handing over charge to Arun Kumar, Treasury Guard and thus the claim of the petitioner for payment of salary has been rejected. 9. It is contended that the Executive Engineer has acted mala fide in making allegation against the petitioner in order to defend himself as is evident from the fact that the person, who was posted at the place on which the petitioner was transferred, was admittedly relieved only on 13.6.2003 when the order of transfer itself mentioned that all transferred employees must be relieved positively by 15th January, 2003 and their salary for the month of January, 2003 should be paid from their new place of posting. Apart from this, learned counsel contended that there is no explanation as to why Sunit Kumar Rai was not relieved earlier within the stipulated period even if it is accepted that he was willing to hand over the charge by handing it over to Arun Kumar as was done by him only on 13.6.2003. Apart from this, learned counsel contended that there is no explanation as to why Sunit Kumar Rai was not relieved earlier within the stipulated period even if it is accepted that he was willing to hand over the charge by handing it over to Arun Kumar as was done by him only on 13.6.2003. Learned counsel submitted that, in fact, this Court in the earlier order (Annexure 8) has taken note of the fact of admission in the counter affidavit, sworn by the Secretary to the Chief Engineer, Minor Irrigation Department, Bihar, that the petitioner submitted his joining at the transferred place. In paragraph 6 of the counter affidavit filed in the present case also it is admitted that the petitioner joined the transferred place on 18.1.2003. Thus, the question of taking over charge from said Sunit Kumar Rai even before he was relieved on 13.6.2003 did not arise. As regards the allegation against the petitioner that despite reminder he did not take charge and absented himself, learned counsel submitted, that it is absolutely baseless. If it is admitted that the petitioner was relieved from previous post of Minor Irrigation Division, Patna on 11.1.2003 and joined at Aurangabad on 18.1.2003, then there cannot be any reason why he would not take over charge. In fact, as per the instruction mentioned in the order of transfer (Annexure 1) itself,-all concerned Executive Engineers and other concerned authorities were directed to relieve all transferred employees by 15th January, 2003 and, further, that their salary for the month of January, 2003 shall be paid from the new place of posting. As such, there cannot be any valid justification to allow said Sunit Kumar Rai to continue at Aurangabad after 15th January, 2003 and pay his salary till he was relieved on 13.6.2003. As such, there cannot be any valid justification to allow said Sunit Kumar Rai to continue at Aurangabad after 15th January, 2003 and pay his salary till he was relieved on 13.6.2003. He further submitted that the Executive Engineer instead of paying salary to the petitioner acted mala fide by asking him to submit application for treating the said period as earned leave in order to cover up his own lapses in not relieving Sunit Kumar Rai by 15th January, 2003 and paying salary to him up to June, 2003 in utter violation of the clear instruction given in the order of transfer, contained in Annexure 1, and he has now cooked up a new story and has made allegation that despite letter written to the petitioner on 31.1.2003 directing him to take over charge and to be present on duty, he absented. 10. On the other hand, learned counsel for the State submitted that after the petitioner joined the duty on 16.9.2003, the Executive Engineer, Minor Irrigation Division, Aurangabad, vide letter no. 620 dated 23.9.2003 and letter no. 645 dated 1.10.2003 asked explanation from him for his absence from duty during the period 18.1.2003 to 16.9.2003. The explanation was submitted by the petitioner, which was not found to be satisfactory. However, as per the direction given by the Chief Engineer, the petitioner was requested to submit his application for sanction of earned leave, but the same was not submitted and finally the claim of the petitioner for payment of salary for the absence period was rejected. He submitted that said Sunit Kumar Rai was also placed under suspension for not handing over charge and an explanation was also called for from him for disobeying the order of the higher authorities. 11. I am unable to appreciate the said submission of the learned counsel for the State. If there was no fault on the part of said Sunit Kumar Rai, there was no occasion for placing him under suspension and calling for an explanation for disobedience of the order of the higher authorities. This action of the Executive Engineer itself shows that he only to save his skin took action against the petitioner. 12. If there was no fault on the part of said Sunit Kumar Rai, there was no occasion for placing him under suspension and calling for an explanation for disobedience of the order of the higher authorities. This action of the Executive Engineer itself shows that he only to save his skin took action against the petitioner. 12. In my opinion, the facts aforementioned clearly show that it is on account of manoeuvring by the concerned Executive Engineer to allow Sunit Kumar Rai to continue on his post deprived the petitioner of taking over charge despite joining at his transferred place of posting within the time fixed in the order of transfer, contained in Annexure 1. The Executive Engineer had no authority to allow said Sunit Kumar Rai to continue beyond 15th January, 2003 and to allow him to draw salary thereafter on the face of the order of transfer, contained in Annexure 1, passed by his superior authority, namely, the Chief Engineer. It is, thus, quite apparent that the Executive Engineer showed undue favour to Sunit Kumar Rai by allowing him to continue beyond 15th January, 2003 and paid his salary and in order to cover up his disobedience/indiscipline initiated disciplinary action against this petitioner and passed the order of punishment, contained in Annexure 18, and that too without giving copy of the enquiry report and complying with the other required formalities. 13. In the result, the writ application is allowed and the order, contained in Annexure 18, is quashed. The respondents are directed to pay due salary of the petitioner for the aforementioned period in question alongwith all other admissible allowances.