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2013 DIGILAW 309 (JHR)

Basant Kumar v. State of Jharkhand

2013-03-01

SHREE CHANDRASHEKHAR

body2013
JUDGMENT By Court: The petitioner has approached this Court challenging orders dated 22.06.1999 and 14.06.2001. 2. The petitioner was working at Primary Health Centre, Chandwa at Palamau Surgency since March 1991. As his salary was not paid to him, he moved an application being C.W.J.C. No. 10952 of 1992 at Patna, which was disposed of with a direction to make a representation. As the order of the High Court was not complied with the petitioner filed a contempt case. During the pendency of the contempt case, major part of the salary of the petitioner was paid. The contempt case was dropped vide order dated 03.01.1996. On 31.12.1996, the petitioner was transferred from Primary Helath Centre, Chandwa at Palamau to the office of the Civil Surgeon, Deoghar. However, it appears that by order dated 19.03.1997, transfer of all the Ophthalmic Assistants were ordered not to be given effect to and orders of transfer were stayed with immediate effect. It is the case of the petitioner that in view of the order dated 19.03.1997, he should not have been relieved. However, by order dated 20.03.1997 he was relieved from the post. The petitioner tried to give his joining to the concerned authorities, however, such joining was not accepted. The petitioner made repeated attempts to join his post but for one reason or the other, it was not accepted by the concerned authorities. The petitioner again moved the High Court in C.W.J.C. No. 1535 of 1997(R) for payment of salary due to him for the period since November 1995 along with arrears of salary and for quashing of order dated 20.03.1997, whereby he was transferred. The writ petition was disposed of with liberty to the petitioner to make a representation. It is the case of the petitioner that inspite of representation, his grievance has not been redressed. 3. A counter affidavit has been filed on behalf of Respondents denying the claim of the petitioner. It is stated in the counter affidavit that once the order of transfer dated 20.03.1997 was passed, the petitioner was duty bound to join the post indicated in the transfer order. However, petitioner did not join the post. 3. A counter affidavit has been filed on behalf of Respondents denying the claim of the petitioner. It is stated in the counter affidavit that once the order of transfer dated 20.03.1997 was passed, the petitioner was duty bound to join the post indicated in the transfer order. However, petitioner did not join the post. The plea taken by the petitioner was that his joining was not accepted by the authorities and therefore, orders dated 22.06.1999 and 14.06.2001 were passed whereby it was ordered that the period during which the petitioner was absent, would be treated as period of unauthorised leave and he would not be paid salary for the said period. The petitioner is aggrieved by the said order. 4. Learned counsel for the petitioner has submitted that he has instructions from his client to submit to this Court that though the salary may not be paid to the petitioner, but the period of absence should not be treated as the period of unauthorised leave. 5. Learned counsel for the respondents has resisted the claim of the petitioner. 6. From the record of the case, particularly the orders passed by the High Court in different proceedings, I am of the opinion that the petitioner may have a justifiable reason for such absence. Learned counsel for the petitioner has fairly submitted that he may not be given salary for the period of absence, but this period should not be treated as period on unauthorised absence from the duties. The petitioner is working as Opthalmic Assistant and learned counsel for the petitioner has submitted that he is a responsible person and has always tried to obey the instructions of the authorities. 7. From order dated 22.06.1999, however, it does not appear that the period of absence has been treated as period of unauthorised leave. It simply records that the petitioner would be paid salary only from the date of joining. It is also clear from the record that the respondents have not denied the stand taken by the petitioner that when he gave joining in the office of the Respondent No. 6, it was refused and therefore, he again reported to Respondent No. 5. It simply records that the petitioner would be paid salary only from the date of joining. It is also clear from the record that the respondents have not denied the stand taken by the petitioner that when he gave joining in the office of the Respondent No. 6, it was refused and therefore, he again reported to Respondent No. 5. In Paragraph 11 of counter-affidavit, the respondents have stated, “It is stated that after Respondent No. 5 refused to accept the joining of the petitioner, the proper course for him was to approach Director, Health Services, Patna, but instead of doing that petitioner again reported to the office of Respondent No. 5, but his joining was not accepted by him.” 8. The learned counsel for the petitioner has further submitted that the petitioner was not paid salary since 1995 on the plea that funds was not available, which is not true and the fund was returned unutilized. The petitioner was compelled to approach High Court on several occasions for a direction for payment of salary. The petitioner has been harassed unnecessarily is apparent from letter dated 03.12.2001 and Memo No. 565(5) dated 20.12.2001 which would disclose that even after order dated 14.06.2001 the petitioner was not permitted to join. 9. From order dated 14.06.2001 it does not appear that it has been passed after considering order dated 22.06.1999 which was passed by the Director, Health Services, Patna. As noticed earlier in order dated 22.06.1999, the period of absence of the petitioner from duty after 20.03.1997 has not been treated as unauthorised absence and therefore, order dated 14.06.2001 requires reconsideration. The petitioner is permitted to make a representation to the Respondent No. 2 within a period of six weeks and the Respondent No. 2 is directed to decide the claim of the petitioner within next six weeks by a speaking order. 10. The writ petition is disposed of accordingly. Petition disposed of.