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2016 DIGILAW 3737 (ALL)

Jugul Kishore v. State of U. P.

2016-11-17

P.K.S.BAGHEL

body2016
JUDGMENT Pradeep Kumar Singh Baghel, J. The petitioner is a retired Assistant Teacher of a Junior High School. He has preferred this writ petition for quashing the order dated 09.04.2014 passed by the Basic Shiksha Adhikari rejecting his claim for pension. 2. The brief reference to the factual aspect would suffice. The petitioner was initially appointed on the post of Assistant Teacher at Primary School Bandoiya, Block Bhetuwa, District Sultanpur on 24.12.1981. The institution is run and managed by the Basic Education Board. He was promoted on the post of the Head Master on 08.02.1999. 3. It is stated that unfortunately the petitioner met with an incident and sustained grievous injuries. His left hand had to be amputated. Thus, he is now physically disabled person. Copy of the certificate issued by the Chief Medical Officer regarding his disability is on record as Annexure-3 to the writ petition. 4. It is stated that the petitioner had continuously worked and when his salary was stopped without any justifiable reason, he made several representations without any result, hence, he had instituted a writ petition no.6848 (S/S) of 2013. The said writ petition was disposed of on 18.11.2013 issuing a direction upon the respondents to consider the grievance of the petitioner within a specified period. When the order of writ Court was not complied, the petitioner preferred a Contempt Petition No.838 (C) of 2014 wherein a notice was issued to the respondents. However, a statement was made by the learned Standing Counsel that some order has been passed on his representation and only he was found to be entitled for the payment of G.P.F. On the basis of the said statement of the learned Standing Counsel, the contempt petition was dismissed leaving it open to the petitioner to take recourse of such remedy which is available under the law. 5. It is stated that the petitioner's representation has been rejected amongst other grounds that there was break in his service from 07.08.2006 and in the meantime he retired, therefore, he is not entitled for pension. Reference has been made to some of the provisions of Financial Handbook and the Government Orders. 6. A counter affidavit has been filed. 5. It is stated that the petitioner's representation has been rejected amongst other grounds that there was break in his service from 07.08.2006 and in the meantime he retired, therefore, he is not entitled for pension. Reference has been made to some of the provisions of Financial Handbook and the Government Orders. 6. A counter affidavit has been filed. The stand taken in the counter affidavit is that he was continuously absent from the duty since December 2005 for a period of eight years, hence he is not entitled for the payment of salary for the said period on the basis of the principle 'no work no pay'. 7. Learned counsel for the petitioner submits that the service record of the petitioner indicates that from the date of his initial appointment, he has excellent service record. It is stated that due to the accident, he was on the medical leave and later, he joined the institution. Hence, he was entitled for his salary. 8. Learned counsel for the petitioner further submits that a show cause notice was issued to him but he joined after he was declared fit, thus, no further action was taken by the respondents. 9. Lastly, it was urged that if the allegation of the respondent is correct that the petitioner was absent without any leave, the appropriate action ought to have taken against him in accordance with law but respondents, who were fully aware about misfortune of the petitioner that he had met with a serious accident and his hand had been amputated, hence authority concerned did not take any action against the petitioner. 10. It is also urged that in the impugned order it has been recorded that the petitioner's service from 1981 to 2004 is satisfactory and on the basis of the said period alone, the petitioner is entitled for the pension as he has completed more than 24 years uninterrupted service. Learned counsel for the petitioner has placed reliance on a judgment of this Court in the case of Satya Narain Tripathi v. State of U.P. and others, Special Appeal No. 18 of 2016. Learned counsel for the petitioner has placed reliance on a judgment of this Court in the case of Satya Narain Tripathi v. State of U.P. and others, Special Appeal No. 18 of 2016. The relevant part of the judgment reads as under: "However, the aspect which needs to be considered by the Court is whether, as submitted before the Court by the learned Standing Counsel, there was a gross delay on the part of the appellant in moving the Court for espousal of his legal remedies, which would dis-entitle him to the grant of any relief. Even before he filed his first writ petition in 2006, the record before the Court makes it clear that the appellant was continuously pursuing his remedies before the State Government for the payment of his retiral dues. As we have noted earlier, the matter was, in fact, pending before the State Government and no decision had been taken on the reference which had been made on 20 January 2000. In fact, that is why, eventually the appellant was constrained to file a writ petition in 2006 for a decision on the reference and on his representations which were submitted in the meantime. The writ petition remained pending and it was on 18 May 2012 that a communication was addressed by the Principal Secretary to the State Government to the Commissioner, Rural Development, to take a decision in regard to the payment of retiral dues. The District Development Officer rejected the representation on 19 May 2012, which led to the filing of the second writ petition." 11. Learned Standing Counsel and the counsel for the Basic Shiksha Adhikari has reiterated the grounds mentioned in the impugned order. Learned Standing Counsel has taken the Court to some of the paragraphs of the counter affidavit wherein reasons mentioned in the impugned order. No fresh ground has been argued. 12. Heard learned counsel for the parties and considered their submissions. 13. Concededly, the petitioner had worked from 1981 till November, 2005. In the impugned order, a clear finding has been recorded that in his service record during the said period, his service was found to be satisfactory. It has also been recorded in the impugned order that the petitioner was on the leave without pay from December 2005 to May 2006 and from 1st July 2006 he was on medical leave till 30th July 2006. It has also been recorded in the impugned order that the petitioner was on the leave without pay from December 2005 to May 2006 and from 1st July 2006 he was on medical leave till 30th July 2006. During this period, the petitioner had suffered due to the road accident and his had was amputated. 14. From the record, it appears that a show cause notice was only issued and after a show cause notice, the petitioner was allowed to join on 31.07.2006. In the impugned order it is recorded that a show cause notice was issued and thereafter the petitioner had joined but he was again absent from 07.08.2008. From the impugned order, it is manifestly clear that no disciplinary proceeding was initiated against the petitioner for his absence and only a show cause notice was issued. The similar fact and the issue was considered by the Division Bench of this Court in the case of Satya Narain Tripathi (supra). In the said case also the employee was absent from 21.09.1979 to 24.09.1984. In the said case also no disciplinary proceedings were initiated against the petitioner nor was given any opportunity to him. 15. In the present case also, the petitioner has completed the requisite year of service for pension as recorded in the impugned order itself. The petitioner was held to be entitled for the salary during the period when he was absent. However, the said reason cannot be a ground for denying him the pensionary benefits. 16. In view of the above, the writ petition stands allowed and the impugned order dated 09.04.2014 is set aside. The matter is remitted back with a direction to the respondents to pass an appropriate order for the grant of the pension to the petitioner in the light of the judgment of Satya Narain Tripathi (supra). 17. It is made clear that if the Court has issued a direction to decide the matter in the light of the judgment, the authority should confine itself decision in the light of the judgment mentioned in the order and it is not permissible to him under law to take a fresh ground to reject the case. Accordingly, Basic Shiksha Adhikari shall pay attention to the law laid-down in the case of Satya Narain Tripathi (supra) and no fresh ground shall be taken to reject the claim. Accordingly, Basic Shiksha Adhikari shall pay attention to the law laid-down in the case of Satya Narain Tripathi (supra) and no fresh ground shall be taken to reject the claim. The said exercise shall be completed within three months from the date of communication of this order. The Basic Shiksha Adhikari shall pay regard to the fact that it is a matter of the payment of retiral benefit, therefore, there should not be any loss of time in deciding the matter. 18. No order as to costs.