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2011 DIGILAW 346 (GAU)

Mahadananda Talukdar v. State of Assam

2011-04-19

I.A.ANSARI

body2011
JUDGMENT Iqbal Ahmed Ansari, J. 1. The Petitioner having been appointed as Lower Division Assistant (in short, 'LDA'), in the year 1981, under Panchayat and Rural Development Department, Government of Assam, and came to be promoted, in course of time, as Upper Division Assistant (in short, UDA). While so working as LDA in the said Directorate, the Petitioner was transferred to the District Rural Development Agency (in short, DRDA), in the year 1985, and posted at Dhubri. The Petitioner was promoted to the post of UDA in the office of the DRDA, Nalbari. It was in the year 1993, that the Petitioner was promoted to the post of Head Assistant in the said establishment and thereafter, he was transferred, in the said capacity, to DRDA, Nalbari. Where the Petitioner was still working as Head Assistant, DRDA, Nalbari, an order was issued, on 15-12-2010, by the Respondent No. 3, namely, Project Director, DRDA, Nalbari, stating to the effect, inter alia, that the Petitioner was to retire, on superannuation, on 31-07-2010. He has accordingly been released with effect from 31-07-2010. Responding to the order, dated 31-07-2010 aforementioned, the Petitioner made a representation, dated 21-12-2010, addressed to the Respondent No. 3, wherein he did not dispute the fact that he had to superannuate on 31-07-2010, but he contended that since he had served till 15-12-2010, he shall be paid salary up to the month of December, 2010. The said representation, 21-12-2010, was followed by another representation, dated 27-01-2011, addressed to the Respondent No. 2, namely, Deputy Commissioner and Executive Director, DRDA, Nalbari, seeking the same relief, namely, payment of salary upto the month of December, 2010. Alleging that he ought to have paid the salary upto the month of December, 2010, the Petitioner has filed this writ petition under Article 226 seeking appropriate direction to be issued to the Respondents directing them to pay to the Petitioner salary upto the month of December, 2010. 2. I have heard Mr. MA Sheikh, learned Counsel for the Petitioner, and Mr. BJ Ghosh, learned Government Advocate, appearing on behalf of the Respondents. 3. While considering the present writ petition, it needs to be noted that the fact that the Petitioner was to retire, on super annuation, in ordinary course, on 31-07-2010, is not in dispute. 2. I have heard Mr. MA Sheikh, learned Counsel for the Petitioner, and Mr. BJ Ghosh, learned Government Advocate, appearing on behalf of the Respondents. 3. While considering the present writ petition, it needs to be noted that the fact that the Petitioner was to retire, on super annuation, in ordinary course, on 31-07-2010, is not in dispute. The question is as to whether the Petitioner shall be directed to be paid his salary upto the end of the month of December, 2010. While considering this question, it needs to be noted that the Petitioner went on medical leave with effect from 01-07-2010 and remained on leave till 30-09-2010, the medical leave having been granted to the Petitioner by order, dated 16-10-2010, passed by the Respondents concerned pursuant to the Petitioner's own application seeking leave. 4. There is considerable force in the submissions made on behalf of the Respondents that the Petitioner knew, in his capacity as Head Assistant, that his date of retirement was on 31-07-2010 and yet he opted to remain on medical leave till 30-09-2010. This apart, what transpires from the record is that the Petitioner had not only continued to hold the post of Head Assistant until the time when his legal continuation is detected by the person, who came to discharge temporarily the function of Head Assistant during the period of leave of the Petitioner. 5. Situated thus, it becomes clear that the Petitioner's act in remaining service was not an innocent act. Far from being innocent, his conduct is demonstrative of the fact that the Petitioner was fraudulent in remaining service longer than his date of retirement. In such circumstances, it cannot be said that the Respondents have realized the service from the Petitioner; rather it was the Petitioner, who opted to work by playing fraud on the Respondents. The Petitioner has, admittedly, been paid his salary upto the month of August. Thus, the Petitioner has been paid one month's salary more than what he ought to have received. 6. Invoking of extra ordinary jurisdiction of the High Court under Article 226 to become beneficiary of fraudulent act is impermissible. The Petitioner has, admittedly, been paid his salary upto the month of August. Thus, the Petitioner has been paid one month's salary more than what he ought to have received. 6. Invoking of extra ordinary jurisdiction of the High Court under Article 226 to become beneficiary of fraudulent act is impermissible. The relief, which was granted by the High Court in exercise of its power under Article 226 is substantially equitable in nature and a person such as the Petitioner, who comes to the Court with unclean hands cannot be protected by terming his service as expectation by the State Respondents. The learned Counsel for the Petitioner has referred to the case of Nagaland PWD Field Workers Association vs. State of Nagaland and other 2010(5) GLT 506, for the purpose of claiming salary and allowances upto the month of December. Suffice it to point out in this regard that the case of Nagaland PWD Field Workers Association (supra) was a case of recovery of excess payment, which had been made to the employee concerned and the Court inferred that it could not be ruled out that three Petitioners had innocently received excess payment. To the case at hand, the decision in Nagaland PWD Field Workers Association (supra), is absolutely no application. The Petitioner has remained on medical leave from 01-07-2010 to 30-09-2010, Petitioner's continuation in service with effect from 01-08-2010, was wholly illegal. The Petitioner has, however, received the salary for the month of August, 2010, without having worked during the said period and without being legally entitled to the leave from 01-08-2010. 7. Because of what have been discussed and pointed out above, this Court does not find that the Petitioner has been able to make out any case warranting this Court's interference with the impugned order nor does the Petitioner has made out any case for issuing any direction to the Respondents to make available to the Petitioner his salary for the month of September, October, November and December, 2010. 8. In the result and for the foregoing reasons, this writ petition fails and the same shall accordingly stand dismissed. The Petitioner, having played fraud on State, cannot be allowed to be the beneficiary of his own fraud.