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2017 DIGILAW 1845 (JHR)

Phuleshwar Rana v. State of Jharkhand

2017-11-02

S.N.PATHAK

body2017
ORDER : S.N. PATHAK, J. 1. Heard learned counsel for the petitioner and learned J.C. to Sr. SC-I for the State. The petitioner has approached this Court with a prayer for quashing the order dated 9.8.2008 issued under the signature of Commissioner, Santhal Pargana Division, Dumka, whereby the representation of the petitioner dated 9.8.2003 has been rejected. Further prayer has been made to accept the joining of the petitioner in Dumka District as Rajswa. Karmchari and to pay all outstanding dues to the petitioner on account of salary which has not been paid since 1992. 2. The facts as derived from the writ petition are that the petitioner was initially appointed as Rajswa Karmchari in the office of Circle Officer, Litipara, District-Sahebganj. From 1.7.1992 to 30.8.1992, the petitioner was granted leave from the competent authority for enabling him to look after his old and ailing mother, who was on the death bed. In the midst of his sanctioned leave vide order dated 28.7.1992 issued by the Deputy Commissioner, Sahebganj, the petitioner was transferred from Litipara Circle Office to Rajmahal Circle Office within the district of Sahebganj. It is the case of the petitioner that prior to his relieving on 13.8.1992 from the Office of the Circle Officer, Litipara, made representation dated 4.8.1992 before the D.C., Sahibganj, which is apparent from his representation dated 19.8.1992 before the CO., Litipara praying therein that his mother is seriously ill and as such, the transfer order be kept in abeyance but no heed was paid to the representation of the petitioner though similarly situated persons were considered and their transfer orders were interfered with but due to bias, mala fide and vindictive attitude, the petitioner was harassed with the motive to throw him out of service. Meanwhile, the petitioner was again transferred to Dumka vide order dated 23.10.1992 issued by the Commissioner, Santhal Pargana Division, Dumka. The petitioner was also not allowed to make any attendance nor the salary of the petitioner was paid and as such, the petitioner was compelled to file representation before the Deputy Commissioner, Sahebganj stating the arbitrary and mala fide action of the respondents regarding his harassment. On the representation of the petitioner, the Deputy Commissioner vide its order dated 6.11.1993 directed the Circle Officer, Litipara to forthwith relieve the petitioner so that he could join to his new place of posting at Dumka. On the representation of the petitioner, the Deputy Commissioner vide its order dated 6.11.1993 directed the Circle Officer, Litipara to forthwith relieve the petitioner so that he could join to his new place of posting at Dumka. In spite of the specific order of the Deputy Commissioner, the petitioner was not relieved neither he was allowed to put his signature or make his attendance in the office of the Circle Officer. Against the said arbitrary action of the respondents, the petitioner also represented before the higher authorities and as such, finally a direction was issued to the Deputy Commissioner, Pakur to forthwith permit the petitioner to join Dumka district after being relieved from Litipara. But the D.C., Pakur vide his order dated 30.5.2001 brought to the notice of the Commissioner, Santhal Pargana that though the petitioner was relieved on 7.8.1992 to join the said post but the petitioner did not report for duty and as such, when the petitioner was subsequently transferred from Sahebganj to Dumka vide order of the Commissioner, Santhal Pargana Division, he was never relieved neither he reported for duty. Thereafter, the petitioner again filed representation on 4.1.2002 for relieving him to join Dumka district as for last 10 years, he was never relieved to join the district of Dumka despite the specific order by the then Deputy Commissioner, Sahebganj nor he was allowed to make his attendance neither the salary of that period was paid to the petitioner nor any order of suspension or initiation of any departmental proceeding was issued against him. When no heed was paid to his representations, the petitioner knocked the door of this Hon'ble Court for redressal of his grievances by preferring writ petition being W.P.(S) No. 3970 of 2002, which was disposed of on 3.7.2003 with a direction to the respondents to consider the case of the petitioner and to pass a reasoned order. The respondent-authorities in view of the directions of this Court passed a reasoned order dated 9.8.2008 (Annexure-14) observing therein that since the petitioner remained on unauthorized leave in view of Bihar/Jharkhand Service Code and also taking into consideration other rules and regulations, the Deputy Commissioner,. Sahebganj is a competent authority to take a decision in this regard in accordance of aforesaid rules and regulations but till date no orders have been passed. Sahebganj is a competent authority to take a decision in this regard in accordance of aforesaid rules and regulations but till date no orders have been passed. Hence, this writ petition has been preferred in the year 2010, challenging the order of the Commissioner, Santhal Pargana Division, Dumka. It is further stated that during the pendency of this writ petition, the petitioner got superannuated in the month of February, 2014. 3. Mr. Rajesh Kumar, learned counsel appearing for the petitioner argues that though the petitioner remained unauthorizedly absent for more than 20 years but as he has worked for about 10 years, he is entitled for the pensionary benefits. Learned counsel further argues that even neither any show-cause was issued against the petitioner nor any departmental proceeding was initiated against him and neither the petitioner was put under suspension. Since, the petitioner got superannuated in the year 2014, he is entitled for the pensionary benefit as well as salary of the period for which he had worked and hence, a direction may be given to the respondents for consideration of his case for salary of the period he had worked and also for pensionary benefits. 4. Per contra counter-affidavit has been filed by the respondents. Ms. Nilam Tiwary, learned JC to Sr. SC-I appearing for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that in no way the petitioner is entitled for pensionary benefits. Taking into account the Jharkhand Service Code, the petitioner's unauthorized leave for more than 20 years cannot be overlooked. In view of the settled propositions of law, the petitioner is not entitled for a single penny by way of salary as he was never present in the office of Circle Officer or even in the Headquarter. The entire averments made in the writ petition is fabricated regarding his presence in the Headquarter or in the office of the Circle Officer, as there is no any chit of paper to show that the petitioner was ever present in the Circle Office or in the Headquarter before the Commissioner or before the Deputy Commissioner after 30.8.1992. 5. The entire averments made in the writ petition is fabricated regarding his presence in the Headquarter or in the office of the Circle Officer, as there is no any chit of paper to show that the petitioner was ever present in the Circle Office or in the Headquarter before the Commissioner or before the Deputy Commissioner after 30.8.1992. 5. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that admittedly the petitioner remained on unauthorized leave for 20 long years and accordingly, he is not entitled for salary of that period neither for the pensionary benefits. However, the respondents were equally responsible for non-initiation of any departmental proceeding against the petitioner. Even neither any order of suspension was ever issued. In absence of any departmental proceeding or any punishment order, the petitioner cannot be deprived of his legitimate claim. As the petitioner has rendered 10 years of regular service and no orders were ever passed till date by the respondents as to whether the petitioner is entitled for the benefits, as claimed by him, or not, this Court directs the respondent-authorities to consider his case for payment of retiral benefits as also, no order contrary to it has been passed as yet by the respondents. Petitioner is admittedly not entitled for any salary for which he remained on unauthorized leave but admittedly, if that he has worked for 10 years, a decision be taken regarding his entitlement of pensionary benefits in accordance with law. If the petitioner is entitled, the same should be extended to him within a period of 6 weeks from the date of receipt of a copy of this order. Needless to say if the petitioner is not entitled, a reasoned order be passed mentioning the grounds for rejection and the same may be communicated to the petitioner. As a cumulative effect of the aforesaid rules, observations and guidelines, the writ petition stands disposed of with the aforesaid observations and directions.