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2016 DIGILAW 1307 (HP)

MURARI LAL SHARMA v. STATE OF HIMACHAL PRADESH

2016-07-07

V.K.SHARMA

body2016
JUDGMENT : 1. Heard. 2. The applicant, a Patwari (since retired), was at the relevant time posted at Patwar; Circle Tama, District Mandi. On the allegation that he had issued a fake certificate in favour of one Smt. Kamaljeet Kaur testifying that she was an agriculturist in Himachal Pradesh, departmental action was initiated against him, pursuant to which vide office order dated 29th October, 2009, Annexure P-1, he was compulsorily retired from service under clause (vii) of Rule 11 of CCS (CCA) Rules, 1965 with immediate effect. Being aggrieved, he filed statutory appeal, in which the penalty of compulsory retirement from service was scaled down to stoppage of one increment with cumulative effect vide order dated 06.05.2010, Annexure P-2, with the further stipulation that "The intervening period of absence on account of compulsory retirement w.e.f. 29.10.2009 till date of joining will be treated as leave of the kind due by the Deputy Commissioner, Mandi." 3. Pursuant to the above order dated 06.05.2010, Annexure P-2, the applicant submitted joining to respondent No.2, the Deputy Commissioner, Mandi, vide report dated 10.05.2010, Annexure P-3, followed by reminder dated 24.05.2010, Annexure P-4. However, vide communication dated 29th May, 2010, Annexure P-5, sent by respondent No.2 to the applicant, joining report was not accepted on the ground that "an appeal against the order of Ld. Divisional Commissioner, Mandi has been preferred before the Ld. Financial Commissioner (Revenue) to the Government of Himachal Pradesh, Shimla. Further action on your joining report would depend on the final outcome of the case." 4. The action of respondent No.2 in filing the aforesaid appeal was questioned by ' the Government of Himachal Pradesh, Department of Revenue, vide letter dated 03.09.2010, i Annexure P-6, which reads as under:- "No. Rev. A(B1 4-6/2010) Government of Himachal Pradesh Department of Revenue To The Deputy Commissioner, Mandi, Himachal Pradesh. Dated Shimla-171002, Dated: 3.9.2010 Subject: Appeal filed by the Deputy Commissioner, Mandi against the order dated 07.05.2010 passed by the Ld. Divisional Commissioner, Mandi Division, Mandi, H.P. Sir, I am directed to refer to your letter No.DRO/SK/KM/08-4266 dated 05.07.2010 on the subject cited above and say that before further action is taken in the matter, you are requested to indicate/attach the Rules/ provisions under which you have filed the present appeal against the orders of the Appellate Authority i.e. Divisional Commissioner, Mandi in the instant case. Simultaneously, the Rules/provisions under which this department can interfere with the orders of the Appellate Authority may also be indicated/attached. Sd/- Yours faithfully, Joint Secretary (Revenue) to the Government of Himachal Pradesh." 5. According to the applicant, respondent No.2 did not respond to the above letter dated 03.09.2010, Annexure P-6, and chose to sit over the same. 6. In the meanwhile, a revision petition laying challenge to the stoppage of one increment with cumulative effect and the further stipulation that the period of absence on account of compulsory retirement w.e.f. 29.10.2009 till the date of joining will be treated as leave of the kind due, was filed by the applicant. 7. Admittedly, both the appeal preferred by respondent No.2 and revision petition filed by the applicant came to be dismissed. Resultantly, vide letter dated 31st March, 2011, Annexure P-7, addressed to respondent No.2, the applicant reiterated acceptance of his joining w.e.f. 10th May, 2010 (A.N.). Consequently, though the joining submitted by the applicant was accepted, yet not on and w.e.f. 10th May, 2011, but instead from 31st March, 2011. 8. Against the foregoing background, the question that arises for determination is as to whether from which date the joining submitted by the applicant would take effect. Whereas, according to the applicant, the joining is liable to be accepted on and w.e.f. 10th May, 2010 as with acceptance of his appeal vide order dated 06.05.2010, Annexure P-2, there was no embargo for him to join duty, the respondents have taken the following stand vide paras 13, 15 and 16 of their reply:- "13. That the contents of this para are not admitted. However, it is submitted that after dismissal of the appeal as well as revision petition, the petitioner was re-appointed as Patwari vide office order No. 3SK(61)/91-XVI-2133-41 dated 23.4.2011. The action of replying respondent is just and fair. As submitted in paras supra the respondent has preferred revision against the order of Ld. Divisional Commissioner, Mandi. 15. That the contents of this para are not admitted. However it is submitted that the period of absence has rightly been adjusted by the respondent as per the order of Divisional commissioner, Mandi passed on dated 6.5.2010 & the order passed by the Principal Secretary (Revenue) to the Government of Himachal Pradesh & Revisionary Authority order dated 23.3.2011 and no illegality has been committed by the replying respondent. However it is submitted that the period of absence has rightly been adjusted by the respondent as per the order of Divisional commissioner, Mandi passed on dated 6.5.2010 & the order passed by the Principal Secretary (Revenue) to the Government of Himachal Pradesh & Revisionary Authority order dated 23.3.2011 and no illegality has been committed by the replying respondent. The fate of the petitioner was depending upon the outcome of the verdict of the revision. 16. That the contents of this para are denied. In this context, it is submitted that the petitioner has only 41 days earned leave in his credit at the time of retirement. The Divisional Commissioner, Mandi vide order No. 3106-07 dated 7.5.2010 has treated the period of absence from 29.10.2009 to 30.3.2011 as kind of leave due and admissible. Consequently, the replying respondent has sanctioned earned leave for 315 days w.e.f. 29.10.2009 to 30.3.2011. So 41 days of earned leave was balance in credit of the petitioner. The order of Divisional Commissioner was rightly interpreted by treating the absence of the petitioner till 30.3.2011 i.e. the date when decision of Principal Secretary (Revenue) received in the office." 9. In the factual matrix as obtaining in the foregoing background, it would be seen that since the initial order of compulsory retirement stood effaced in appeal when the same was substituted by stoppage of one increment with cumulative effect with the stipulation that the intervening period of absence on account of compulsory retirement w.e.f. 29.10.2009 till the date of joining will be treated as leave of the kind due, there was virtually no legal impediment against the applicant to debar him from joining the post he was holding immediately before compulsory retirement. Furthermore, indisputably the appeal filed by respondent No.2 was without any authority of rules/law. Above all, there was no order suspending the appellate order dated 06.05.2010, Annexure P-2, of the Divisional Commissioner. It being so, it was incumbent upon respondent No.2 to accept the joining submitted by the applicant on 10th May, 2010 in the afternoon, vide report of even date Annexure P-3. 10. In view of the above, the subsequent action on the part of respondent No.2 in accepting the joining of the applicant w.e.f. 31st March, 2011 instead of 10th May, 2010 is not legally sustainable and as such cannot be sustained and is accordingly quashed along with ensuing consequences. 10. In view of the above, the subsequent action on the part of respondent No.2 in accepting the joining of the applicant w.e.f. 31st March, 2011 instead of 10th May, 2010 is not legally sustainable and as such cannot be sustained and is accordingly quashed along with ensuing consequences. Resultantly, the applicant shall be deemed to have joined as Patwari on 10th May, 2010 (afternoon). The period between compulsory retirement w.e.f. 29.10.2009 till the date of deemed joining [10.05.2010 (afternoon)] shall be treated as leave of the kind due as per order dated 06.05.2010, Annexure P-2. From 11th May, 2010 to 31st March, 2011 the applicant shall be treated on duty. 11. The transferred application as also pending miscellaneous application(s), if any, stand disposed of in the above terms.