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2012 DIGILAW 1745 (JHR)

Sushila Kumari v. State of Jharkhand

2012-12-18

APARESH KUMAR SINGH

body2012
JUDGMENT Heard learned counsel for the parties. 2. The petitioner has come before this Court for directing upon the respondents to release the arrears of salary of the petitioner for the period May, 1998 to November, 2004. 3. It would be relevant to record at the outset that earlier also the writ petitioner had come before this Court in W. P. (S) No. 2930 of 2001 for the payment of arrears of salary since May, 1998. The said writ petition was disposed of vide order dated 10.07.2001 directing the Medical Officer-in charge, Thethai Tanagar Referral Hospital, Simdega to determine the claim of the petitioner and pass a reasoned order within six weeks and if any amount is found to be payable, the same should be paid within one month thereafter. A Contempt Case being Cont. Case (Civil) No. 855 of 2001 was, thereafter, preferred by this petitioner alleging the disobedience of the said order. The said contempt case was disposed of on the submission made on behalf of the State that the petitioner was transferred in June, 1998 to Purnea and paid salary of April, 1998. The petitioner was given liberty to claim her salary from June, 1998 before the appropriate Government where she had been transferred. The contention of the petitioner is that despite repeated requests and representation, her salary for the period of May, 1998 to November, 2004 has still been withheld and lastly she made representation before the Deputy Director, Health and Family Welfare Jharkhand Ranchi. On receiving no response from the respondents, she is compelled to move this Court again for the present relief. 4. The respondent no. 7, the In-Charge, Medical Officer, Referal Hospital, Mandar, Ranchi had earlier filed counter affidavit on behalf of the respondents stating that the petitioner had received her salary till April, 1998 and, thereafter, she was transferred by the Director, Health Services, Patna, Bihar from Thethai Tanger, Simdega to the office of the Civil Surgeon, Purnea vide memo no. 6/N 351(6) dated 15.05.1998. The Civil Surgeon, Gumla also communicated the same vide Memo No. 780(5) dated 03.06.1998 to the petitioner by which she was relieved to join her transfer place of posting vide letter no. 221 dated 06.06.1998 and subsequently, her last payment certificate with endorsement of salary for the month of May, 1998 was sent to the Office of Civil Surgeon, Purnea vide letter no. 221 dated 06.06.1998 and subsequently, her last payment certificate with endorsement of salary for the month of May, 1998 was sent to the Office of Civil Surgeon, Purnea vide letter no. 272 dated 19.08.1998 alongwith her service book. It is submitted that the petitioner did not join in the office of Civil Surgeon, Purnea. The Civil Surgeon, Purnea vide letter dated 23.10.2002 enclosing service book and last pay certificate informed the Civil Surgeon, Gumla that she had not joined there and as such, her salary for the month of May, 1998 could not be paid to her. Vide Memo No. 3046 dated 11.12.2002, the Civil Surgeon, Gumla addressed to the In-charge Medical Officer, Thethai Tanger, Simdega sent the last pay certificate and service book of the petitioner. Although, a sum of Rs. 7245/-towards arrear of salary for the month of May, 1998 was prepared, but the bill was presented before the treasury on 13.01.2004, but the same was returned for lack of allotment from Bihar and salary for the said month i.e. May, 1998, could not be paid to the petitioner. Subsequently, as there was no vacant post at Lohardaga, the petitioner was posted at Referral Hospital, Mandar, Ranchi on the post of Grade-A Nurse. A supplementary counter affidavit has been filed by the respondent no. 7, Medical Officer, Referral Hospital, Mander, Ranchi wherein it has been stated that for the period from 07.06.1998 to 15.09.2004, when the petitioner was voluntarily on leave, vide letter no. 446(IV) dated 21.07.2010, the Director-in-Chief, Health Services, Government of Jharkhand, has granted extraordinary leave under Rule 180 of the Jharkhand Service Code and her services have now been regularized. It is also stated that since the petitioner had not worked during the said period, she is not entitled for the salary of the said period. It has further been stated that for the period, she has worked in Mandar and now at Sadar Hospital, Ranchi, she has been paid her salary. So now no arrear of salary is due to the petitioner for the work performed in Mander. 5. The petitioner has filed rejoinder to the said counter affidavit taking plea that she has not sought sanction of any leave for that period and was on voluntary leave. It is further submitted that the petitioner could not have worked at the place because there was no vacant post available. 6. 5. The petitioner has filed rejoinder to the said counter affidavit taking plea that she has not sought sanction of any leave for that period and was on voluntary leave. It is further submitted that the petitioner could not have worked at the place because there was no vacant post available. 6. However, it appears that office order-04 under Memo No. 446(IV) dated 21.07.2010, which was passed by the Director-in-Chief, Health Directorate, Jharkhand, Ranchi, has not been challenged by the petitioner in the present writ petition. 7. From perusal of the office order, it appears that she was transferred and relieved from Thethai Tanger, Gumla in May, 1998, but she did not join at her transferred place of posting at Purnea and kept on recording her attendance at Thethai Tanger, Gumla without any authority and despite being objected by the In-charge Medical Officer, Thethai Tanger, Gumla through his letter no. 189 dated 08.09.2001. The Communication of the Civil Surgeon, Purnea dated 28.11.2002 has been taken into account where he had reported that the petitioner had never joined at her transferred place of posting at Purnea and as such, by his letter dated 23.10.2002, the service book and last pay certificate etc. were returned to Civil Surgeon, Gumla. Thereafter, the petitioner was posted at Lohardaga, but their being no post available in the category of Grade A Nurse, she was finally posted by letter dated 03.11.2004 at Referral Hospital, Mandar, Ranchi where she has submitted her joining on 05.11.2004. The Director-in-Chief, Health Services, Ranchi in the reasoned order, has also recorded that even on asking her to give her show cause vide letter dated 26.08.2006, she did not appear in the office of Director in Chief, which was fixed on 30.11.2006. In the background of the aforesaid findings of the facts recorded by him, he has proceeded to pass an order as referred above by granting extraordinary leave to the petitioner under Rule 180 of the Jharkhand Service Code for the period w.e.f. 07.06.1998 to 15.09.2004. As already stated hereinabove, the said order has not been challenged. Finding of facts relating to the voluntarily absence of the petitioner for the period in question have been recorded by the authority concerned. From the order passed in Cont. As already stated hereinabove, the said order has not been challenged. Finding of facts relating to the voluntarily absence of the petitioner for the period in question have been recorded by the authority concerned. From the order passed in Cont. Case (Civil) 855 of 2001 dated 15.07.2002, it further appears that petitioner was granted liberty to claim her salary from June 1998 before the appropriate Government, where she has been transferred i.e. from the State of Bihar where the district of Purnea now lies after bifurcation of the State. In this writ petition, petitioner has again come before this court against the authorities of Health Department, State of Jharkhand and not against the authorities of State of Bihar. From the facts narrated her in above, it also appears that petitioner has never reported her joining at Purnea in June 1998 and deliberately kept on making her attendance at her original place of posting Thethai Tanger, Gumla contrary to the order of the respondent authorities. For the complication which ensued thereafter, the petitioner is primarily responsible for that. Thereafter also she did not join and remained voluntarily absent away from her place of posting. In these circumstances, the Director in Chief, Health Services, Government of Jharkhand, Ranchi has taken sympathetic view by granting her extraordinary leave under Rule 180 of the Jharkhand Service Code thereby benefiting her from rigours of break in service for the period of absence from service. However, the petitioner has never challenged the reasoned order dated 20.07.2010. Therefore, she is not entitled to claim her salary for such period for which extraordinary leave has now been sanctioned. 8. In the totality of the facts and circumstances, which have been discussed hereinabove, I do not find any merit in this writ petition, which is accordingly, dismissed. Petition dismissed.