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2014 DIGILAW 276 (JK)

State Of J&K v. Saij Singh

2014-07-08

M.M.Kumar, TASHI RABSTAN

body2014
Tashi Rabstan, J. 1. This appeal is directed against the judgment and order dated 16.07,2013 passed by the learned Single Judge in SWP No.2366/2009, whereby the learned Single judge while quashing the order dated 05.05.2006 issued by the Project Officer, District Rural Development Agency, Doda, directed the writ respondents, appellants herein, to release all the service benefits in favour of writ petitioner with effect from the date he was terminated from service till the date he came to be reinstated. 2. The facts leading to the filing of present appeal, as borne out from the writ record, are that the writ petitioner came to be appointed as a Driver on substantive basis against a clear vacancy by the Project Officer, District Rural Development Agency, Doda, appellant No.4 herein, vide order dated 20.07.1984. On 06.11.1985 the then Assistant Project Officer had taken the official Jeep from Ramban to Ramnagar in connection with her personal visit. In the way the traffic police authorities checked the vehicle and the writ petitioner bonafidely narrated the true fact that the vehicle was being taken to Ramnagar in connection with the personal visit of the then Assistant Project Officer. The traffic police authorities challaned the vehicle for its misuse as the same was being utilized for non-official purpose. The then Assistant Project Officer felt offended by the statement of writ petitioner and she lodged a complaint against him alleging insubordination and rude behavior. Project Officer, District Rural Development Agency, Doda, appellant No.4 herein, acting on the complaint terminated the service of petitioner with effect from 05.12.1985 vide order dated 28.03.1986. Feeling aggrieved, the writ petitioner filed SWP No.368/1986 in this Court and this Court vide order dated 30.10.1986 disposed of the same with a direction to the respondents to conduct inquiry into the matter afresh and complete the same within a period of two months. The Inquiry Officer after consideration of the material brought on record during inquiry came to the conclusion that the allegations levelled against the writ petitioner had not been proved as the same were baseless and incorrect. He, accordingly, vide his report dated 30.04.1997 recommended for revocation of the termination order and treating the writ petitioner in service with effect from the date he came to be terminated with all consequential benefits. He, accordingly, vide his report dated 30.04.1997 recommended for revocation of the termination order and treating the writ petitioner in service with effect from the date he came to be terminated with all consequential benefits. Thereafter, the writ petitioner came to be reinstated in service vide order dated 05.11.1999 and he submitted his joining report on 20.11.1999. The writ petitioner though was allowed to join his duties as a Driver, but was not given his dues like arrears of pay, increments, fixation of salary on the basis' of pay revision etc. Aggrieved of the same, he again filed SWP No.2136/2000 in this Court claiming the said benefits. The writ petition came to be disposed of vide order dated 18.05.2005 with the following direction: "However, the competent authority i.e. the respondents are directed to examine this aspect of the matter and decide about the right of the petitioner for wages/emoluments and other service benefits, during the period he remained out of service. Petitioner shall be at liberty to make representation to the respondents to show whether he remained employed during this period or not. Let a decision be taken within a period of four months." 3. Pursuant to the aforesaid direction, the writ petitioner submitted representation to the writ respondents. However, the writ respondents vide order dated 05.05.2006 rejected the claim of petitioner on the basis of "no work no pay". Writ petitioner questioned the said order by the medium of SWP No.2366/2009. The learned Single Judge vide order dated 16.07.2013, impugned herein, quashed the order dated 05.05.2006 with a direction to the writ respondents to release all service benefits in favour of writ petitioner from the, date he was terminated from service till he was reinstated. It is this order which is challenged in the present Letters Patent Appeal by the State. 4. The sole ground taken in the appeal by the State is that the writ petitioner was not reinstated in service but was re-employed in the District Rural Development Agency (DRDA); therefore, there arises no question of giving him the arrears of pay for the period he was out of service. Further, it is contended that even otherwise the writ petitioner is not entitled to the arrears of pay on the basis of no work no pay. 5. Mrs. Hakim, learned Dy. Further, it is contended that even otherwise the writ petitioner is not entitled to the arrears of pay on the basis of no work no pay. 5. Mrs. Hakim, learned Dy. A.G., contended that DRDA is a registered society and as a matter of policy it cannot have permanent employees. She, therefore, argued that writ petitioner is not entitled to the benefits as claimed in the writ petition. In support of her argument, she has placed reliance on "Guidelines on DRDA Administration". A perusal of the same reveals that the said policy/scheme came to be introduced with effect from 1st April, 1999, whereas the writ petitioner was terminated from service with effect from 05.12.1985, i.e., much prior to the policy came into force. Even otherwise, the writ respondents/appellants herein did not bring this fact before the learned Writ Court nor pleaded the same there, therefore they cannot be allowed to now plead the same in the appeal. 6. Further, the writ petitioner in paragraph-2 of the writ petition has specifically averred that he was appointed as a Driver in DRDA on substantive basis against a clear vacancy. The writ respondents/appellants herein in their counter affidavit did not controvert and deny the same; in fact they have admitted the contents of the paragraph. Thus, how could the writ respondents/appellants herein now take a contradictory stand, when they themselves had admitted in the counter affidavit that the writ petitioner was appointed on substantive basis. 7. It would be relevant to reproduce Clauses (i) & (ii) of Article 108-B of J&K Civil Service Regulations hereunder: 108-B. (i) When a Government servant who has been dismissed, removed, compulsorily retired before attaining the age of superannuation or suspended is reinstated the authority competent to order the reinstatement shall consider and make a specific order:- (a) Regarding the pay and allowance to be paid to such Government servant for the period of his absence from duty; and (b) Whether or not the said period shall be treated as a period spent on duty. (ii) Where the authority mentioned in sub-rule (i) is of opinion that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified the Government servant shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed, compulsorily retired before attaining the age of superannuation or suspended, as the case may be. The period of absence from the duty shall be treated as period spent on duty. 8. Clause (ii) of Article 108-B of CSR enjoins upon the authority that if a Government servant has been exonerated or if the suspension was wholly unjustified, the said Government servant shall be given full pay and allowances to which he would have otherwise been entitled to. 9. Where an employee is suspended on a criminal charge but on conclusion of the trial or appeal arising out of a conviction if any, he is exonerated, and the authority does not return a specific finding that the suspension was justified, the employee is entitled to full pay or allowances to which he would otherwise have been entitled to. Such an employee cannot be asked to remain without pay for the period of his suspension and he is to be treated as on duty. Reliance in this behalf can be placed on Ghulam Nabi v. State of J&K, AIR 1966 J&K 27 : JKJ Soft JKJ/15144 and Gh. Ahmad Shah v. State of J&K, SWP No.2523/2012 decided on 17.03.2014. 10. In view of this legal position coupled with the facts and circumstances of the case, we do not find any merit in the appeal. Accordingly, the same is dismissed along with the connected CMA, if any, upholding the judgment of learned Single Judge.