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2016 DIGILAW 1192 (JHR)

Mani Bhushan Prasad, son of Shri Ram Krishna Prasad v. State of Jharkhand

2016-08-02

ANANDA SEN

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ORDER : The petitioner has challenged the order dated 24.05.2007 vide memo no. 466 by which a decision has been taken that the petitioner is not entitled to get any salary from 15.12.2003 to 05.07.2004, on the basis of “No work no pay” and the said period will be counted as extra ordinary leave for the petitioner. 2. The petitioner was employee of the erstwhile State of Bihar. After bifurcation of the cadre, the services of petitioner was allocated to the State of Jharkhand, but in spite of the order of such transfer, the petitioner did not give his joining, with the authority in the State of Jharkhand. The petitioner was relieved by the State of Bihar on 15.12.2003, to enable him to join the State of Jharkhand, but he only joined on 06.07.2004. The said period between 15.12.2003 to 05.07.2004 was treated by the State of Jharkhand as unauthorized absence and the impugned order was passed. 3. Counsel for the petitioner submits that the impugned order is absolutely bad in law. He submits that the petitioner could not join the service, as he was medically unfit and was advised bed rest by the doctors. It has been submitted that the petitioner got cured, and thereafter, he joined on 06.07.2004. He submits that admittedly there are unutilized medical leave in the credit of the petitioner which should have been adjusted, but without doing so, for the period between 15.12.2003 to 05.07.2004, salary of the petitioner has not been paid, on the basis of the “No work no pay” theory. He further submits that the impugned order has been passed in utter violation of the principle of natural justice and is unreasoned one i.e. no reasoning given as to why the ground taken by the petitioner that he was medically unfit was rejected. He further submits that the recommendation of the Deputy Secretary has also not been considered by the authorities. 4. Counsel for the State submits that there is no illegality in the order. In fact the petitioner was very much healthy as he had approached the Hon'ble High Court during that period and has only come with the plea of illness to this Court. He submits that the show cause notice was issued to the petitioner which is dated 11.03.2006, which the petitioner himself has accepted and has annexed with the writ application. In fact the petitioner was very much healthy as he had approached the Hon'ble High Court during that period and has only come with the plea of illness to this Court. He submits that the show cause notice was issued to the petitioner which is dated 11.03.2006, which the petitioner himself has accepted and has annexed with the writ application. It is also submitted that the petitioner had replied to the said show cause on 25.03.2006, and thereafter, the impugned order was passed. He submits that there is no violation of the principle of natural justice as an opportunity was given to the petitioner to explain his absence. Since the petitioner has failed to explain his absence properly, the impugned order was passed. He lastly submits that there was no application seeking adjustment of his earned leave, so the impugned order has been passed. 5. After hearing the parties and after going through the record, I find that vide order dated 25.04.2007, the respondents have not paid salary to the petitioner from 15.12.2003 to 05.07.2004, on the principle of “No work no pay” and has further counted the said absence period as an extra ordinary leave. 6. It is admitted that the petitioner was absent from duty from 15.12.2003 to 05.07.2004. The reason put forward by the petitioner is that he was unwell during the said period, which prevented him from joining. From the show cause, it is evident that the petitioner was asked to explain his absence only. The said show cause notice did not provide for the consequences which the petitioner has to face. The petitioner replied taking a plea that he was unwell during the said period. After filing the reply, the impugned order was issued. 7. After going through the impugned notification, I find that no reasons has been assigned as to why the plea of illness taken by the petitioner was discarded. Further impugned notification did not whisper nor takes into consideration as to why the show cause filed by the petitioner has been discarded. 8. From the record, I also find that the Deputy Secretary had recommended to adjust this period against the unutilized leave of 180 days which lies in the credit of the petitioner and rest 17 days was suggested to be adjusted against the earned leave. This recommendation has also not been taken note of, while passing the impugned order. 8. From the record, I also find that the Deputy Secretary had recommended to adjust this period against the unutilized leave of 180 days which lies in the credit of the petitioner and rest 17 days was suggested to be adjusted against the earned leave. This recommendation has also not been taken note of, while passing the impugned order. The impugned order is absolutely cryptic and without any reason. The counsel for the State tried to take this Court through the several paragraphs of the counter affidavit where the reasons for passing the order has been mentioned. It is well settled that reasons which are not there in the impugned order cannot be supplemented by a counter-affidavit. 9. After considering the entire facts of this case, I find that the impugned order is absolutely cryptic and is unreasoned one, thus is liable to be set aside. 10. The order dated 24.05.2007 contained in memo no. 466 is set aside. The matter is remitted to the respondent no.2, to decide the case of the petitioner afresh, taking into consideration the available unutilized leave of the petitioner, if any. The respondent no.2, will pass a reasoned order after due consideration of the provisions of Jharkhand Service Code within a period of 12 weeks from date of receipt of the copy of this order. 11. With the aforesaid observations and directions, this writ application stands allowed. Application allowed.