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2008 DIGILAW 579 (PAT)

Baidyanath Pathak v. State Of Bihar

2008-04-10

MIHIR KUMAR JHA

body2008
Judgment 1. Heard counsel for the parties. 2. In this writ application the petitioners have prayed for issuance of a direction for payment of salary for the period July, 1994 to December, 1996. It is alleged that the petitioner no. 1 and father of petitioner no. 2 were restrained by the Principal of the College from functioning on their posts vide letter dated 27.7.1994/ 28.7.1994 and 30.7.1994 on the ground that they had attained the age of superannuation. Subsequently the Vice-Chancellor of the University, on the basis of verification of the service record and other connected materials had by an order dated 17.12.1996 held that the petitioner no. 1 and the father of the petitioner no. 2 could not have been superannuated in July 1994 from service as their date of birth was 25.12.1939 and 5.6.1938 respectively. There was a further direction in the said order dated 17.12.1996 that petitioner no.1 and father of petitioner no. 2 would continue in their service till the age of superannuation to be calculated from the date mentioned in the school certificates. It is not in doubt that after month of December, 1996 both petitioner no.1 and father of petitioner no. 2 continued in service on the basis of their dates of birth as decided by the Vice-Chancellor of the University. However, when a question of payment of salary for the period July, 1994 to December, 1996 arose the University had directed the Principal of the College by its letter dated 15.9.2001 that petitioner no. 1 and legal representative of petitioner no. 2 should be asked to submit leave applications for the period July, 1994 to December, 1996. 3. Sri Satish Chandra Jha, learned counsel appearing for the petitioners, submits that such a decision of the University communicated to the petitioner for adjusting the period of July, 1994 to December, 1996 against leave for payment of salary of the petitioners is wholly unjustified as neither petitioner no. 1 nor father of petitioner no. 2 had abandoned their duties on their own volition rather they were restrained by the Principal of the College from working and even putting signature on attendance register on the ground that they had reached the age of superannuation. Mr. Jha therefore, submits that there being no lapse or lache on the part of the petitioner no. 1 or father of petitioner no. Mr. Jha therefore, submits that there being no lapse or lache on the part of the petitioner no. 1 or father of petitioner no. 2 they are entitled for payment of salary for the period they were restrained by the Principal of the College in working on their respective posts in the College. 4. This writ application came to be filed on 30.11.2004 and after one and half years when it was listed for admission counsel for the University had prayed for and was allowed four weeks time to file counter affidavit by an order of this Court dated 1.5.2006. Such counter affidavit however has not been filed till date and today when the matter was taken up after 41 months of filing of the writ application", same prayer is being made that this case may be again adjourned to enable the University to file its counter affidavit. In absence of any valid explanation for such an inordinate delay in filing of the counter affidavit, the aforesaid prayer of the University is wholly unreasonable and must be and is hereby rejected. 5. There is no dispute that it was on account of the decision of the Principal dated 30.7.1994 and 27.7.1994/28.7.1994 as contained in Annexures-2 and 2/1 that the petitioner no. 1 and father of petitioner no. 2 were restrained from working on their respective posts. Such orders passed by the Principal of the College was also found to be illegal by the Vice-Chancellor of the University in its decision communicated vide letter of the University dated 17.12.1996 and accordingly the Principal of the College was directed to continue them in service on the basis of their date of birth indicated in the order. It has therefore be held by this Court that the petitioner no.1 and father of petitioner no. 2 were entitled for payment of salary as they were restrained from working by the Principal of the College. In that view of the matter, it was not open to the authorities of the University to come out with the impugned order dated 15.9.2001 directing the petitioner and heirs of father of petitioner no. 2 to file application for leave for their period of absence from duty. The petitioner no. 1 and father of petitioner no. In that view of the matter, it was not open to the authorities of the University to come out with the impugned order dated 15.9.2001 directing the petitioner and heirs of father of petitioner no. 2 to file application for leave for their period of absence from duty. The petitioner no. 1 and father of petitioner no. 2 having not abandoned their duty in between July, 1994 to December, 1996 could not be compelled to file application for leave for the aforesaid period. As a matter of fact such order of the University after retirement of petitioner no. 1 and death of fahter of petitioner no.2 had also an element of punishment as the same could lead to total disentitlement for their leave encashment which was/is part of their retirement benefit. It is also not in dispute that such penal order of the University dated 15.9.2001 was passed without notice and/or opportunity of personal hearing to the affected person. 6. In that view of the matter, this Court would quash the order of the University dated 15.9.2001 and direct the concerned authorities including the present Vice-Chancellor and the Principal of the College to make payment of full payment of salary of the petitioner no. 1 and father of petitioner no. 2 for the period July, 1994 to December, 1996 within a period of six months from the date of receipt/ production of a copy of this order. 7. It will however, be open for the University to take appropriate action including recovery of amount of salary paid to petitioner no.1 and father of petitioner no. 2 against Sri Chandrika Prasad, Principal of R.K. College, Madhubani whose decision contained in letter dated 27.7.94/ 28.7.94 in case of Maya Kant Mishra and other dated 30.7.1994 in case of Baidyanath Pathak, directing them not to function on their posts on the ground that they reached the age of superannuation has now led to a direction for payment of salary by the University. 8. With the aforementioned observations and/or directions, this application is disposed of.