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2017 DIGILAW 508 (JHR)

Basudeo Prasad Yadava v. State of Jharkhand

2017-03-10

S.N.PATHAK

body2017
JUDGMENT : S.N. Pathak, J. Heard learned counsel for the parties. 2. The petitioner has approached this Court with a prayer for quashing of Memo No. 151 (B) dated 15.3.2008 (Annexure-7) issued by the Deputy Commissioner, West Singhbhum, Chaibasa and also for quashing of letter vide Memo No. 347 dated 15.3.2008 (Annexure-7/1) issued by the Block Development Officer, Sadar, Chaibasa by which the claim of the petitioner for grant of arrear of salary for the period from 4.10.1991 to 12.5.1999 has been rejected without any rhyme and reason. The petitioner has further prayed for payment of arrears of salary for the period from 6.2.1991 to 12.5.1999 not from 4.10.1991 to 12.5.1999. 3. Factual Matrix Petitioner was working as Village Level Worker under the respondents and superannuated on 30.6.2007. He was put under suspension on 18.12.1985 in a contemplated departmental proceeding, subsequently on 11.8.1986 a charge-sheet was served upon him and the petitioner filed a detailed reply against the charges on 2.3.1987 and on consideration of the same, suspension order of petitioner was revoked on 4.3.1987. The respondent-authorities passed an order of dismissal dated 6.2.1991 which was challenged before the Hon'ble Court in C.W.J.C. No. 2627 of 1992(R) by which the case was disposed of with a direction to the Deputy Commissioner for initiation of departmental proceeding from the stage of filing reply to the charges and after giving reasonable opportunity of hearing to the petitioner, pass final order within a period of four months from the date of receipt of the order and the impugned order of dismissal of the petitioner from service was quashed and the matter was remitted back to the Deputy Commissioner, Singhbhum, West. It is stated that the order of Hon'ble Court was not complied with, then the petitioner moved before the Hon'ble Court by filing contempt petition being M.J.C. No. 373 of 2001 which was disposed of on 18.9.2001 thereafter in pursuance of the order passed by this Court in M.J.C. No. 373 of 2001, the order of this Court had been complied with and, hence, the proceeding was dropped and the services of the petitioner was regularized from 6.2.1991 to 12.5.1999 but, the salary for the aforesaid period has not been paid to the petitioner till date and subsequently the petitioner was also directed to deposit Rs. 34,359.35 with 10% interest. 34,359.35 with 10% interest. It is brought to the knowledge of the Court that petitioner has already deposited the amount on 20.10.2003 but, the petitioner was impelled to deposit the same, then only the salary will be released but, in spite of that, the salary has not been paid to the petitioner by the respondents nor salary for the period during which the petitioner was put under suspension, has been paid to the petitioner. The petitioner continuously made representation for payment of his salary from 1991 to 1999 and for the salary for the period during which he was put under suspension, but no heed has been paid towards the representation of the petitioner and the petitioner again filed representation before the respondent-authority on 11.8.2005 for redressal of his grievance but, no order was passed. The petitioner preferred a writ application before the Hon'ble Court bearing W.P.(S) No. 1037 of 2006 and the Hon'ble Court vide its order dated 13.4.2006 has disposed of the matter with following observations:- "In the facts and circumstances, the case is remitted with a direction to the respondents to decide the claim of the petitioner by reasoned order within two months from the date of receipt of representation, as may be preferred by the petitioner. The admitted amount, if found payable to the petitioner, the authority will pay it within a month thereof. On the other hand, if the authority disputes any claim, he will communicate the ground(s) to the petitioner. The writ petition stands disposed of." The petitioner again made representation before respondent-authorities on 8.5.2006 giving details regarding due salary from 6.2.1991 to 12.5.1999 and due salary for the period of suspension i.e. 18.12.1991 (sic-1985?) to 16.12.1986. The respondent-authorities vide Memo No. 151(B) dated 15.3.2008 and vide Memo No. 347 dated 15.3.2008, passed an order to the effect that extraordinary leave has been granted to the petitioner for the aforesaid period, hence, the petitioner is not entitled to get salary as per the Rules. The petitioner being aggrieved of the aforesaid order has preferred this writ petition. 4. Mr. Saurav Arun, learned counsel for the petitioner argued that respondent-authorities have illegally and arbitrarily deprived the petitioner from his entitlement to get his salary and the impugned order has been passed de hors the Rules. The petitioner being aggrieved of the aforesaid order has preferred this writ petition. 4. Mr. Saurav Arun, learned counsel for the petitioner argued that respondent-authorities have illegally and arbitrarily deprived the petitioner from his entitlement to get his salary and the impugned order has been passed de hors the Rules. Learned counsel further argued that as per the Service Code, when the petitioner has been reinstated in the services after quashing of the order of dismissal, the respondent-authorities are bound to consider the salary of the intervening period. Learned counsel further argued that even the petitioner has been denied the benefits of salary of the suspension period though he was entitled for the same as the suspension was revoked. Learned counsel further submitted that the impugned order dated 15.3.2008 was issued by the Deputy Commissioner and that of the Block Development Officer annexed as Annexures-7 and 7/1, are not sustainable in the eyes of law and, hence fit to be quashed and set aside. 5. On the other hand, Mr. H.K. Mehta, learned AAG appearing for the respondents vehemently opposed the prayer of the petitioner and tried to justify the impugned order. Learned counsel drew attention of the Court towards Para 3(i) and further submitted that following payment had already been made to the writ petitioner as per the order of this Hon'ble Court:- "(i) It is pertinent to note that the petitioner was paid his subsistence allowances during the period of suspension. As per aforesaid orders (Annexures-7 and 7/1 of the writ application) earn leave was granted from 6.2.1991 to 3.10.1991 for 240 days, and salary on full average pay was paid to the petitioner, and for remaining period i.e. 4.10.1991 to 12.5.1999 were treated as Extraordinary leave. The balance salary for 18.12.1985 to 16.12.1986 amounting to Rs. 5,555/- has been drawn and deposited in the account of the petitioner on 18.3.2008 vide letter of respondent no. 4 bearing 368 dated 18.3.2008." Learned AAG placed his reliance on Rule 236 read with Rules 180 and 157-B of the Jharkhand Service Code. Rule 236 of the Jharkhand Service Code reads as under:- (i) Extraordinary leave may be granted to the Government servant in the special circumstances when no other leave is admissible under these Rules. (ii) When other leave being admissible, the Government servant concerned applies in writing for grant of extraordinary leave. Rule 236 of the Jharkhand Service Code reads as under:- (i) Extraordinary leave may be granted to the Government servant in the special circumstances when no other leave is admissible under these Rules. (ii) When other leave being admissible, the Government servant concerned applies in writing for grant of extraordinary leave. Rule 180(a) and (b) of the Jharkhand Service Code reads as under:- "(a) In special circumstances and when no other leave is under these Rules, admissible, extraordinary leave may be granted. Such leave is not debited against leave account. No leave salary is admissible during such leave. (b) Authority empowered to sanction leave may grant extraordinary leave in combination with or in continuation of any leave that is admissible and may commute retrospectively period of absence without leave into extraordinary leave." Rule 157(b) of the Jharkhand Service Code reads as under:- "A Government servant who is dismissed or removed from the public service but is reinstated on appeal or revision, is entitled to count his former service towards leave." In view of the aforesaid Rules, learned counsel for the respondents submitted that the petitioner is not entitled for salary of the intervening period and as such, the impugned order is justified. 6. Be that as it may, having gone through the rival submissions of the parties and considering facts and having gone through the relevant Rules as envisaged in the Service Code and relied upon by the learned counsel for the respondents, I am of the considered view that when the respondents authorities have regularized service of the petitioner of the intervening period, there is no occasion to deny salary of that period. The respondents authorities have not even assigned any reason that how the petitioner is entitled for extraordinary leave and not entitled for the salary though the period has been regularized. The Rules referred by the learned counsel nowhere reflects that the petitioner is not entitled for the salary when the services have been regularized. The petitioner has never prayed for grant of extraordinary leave and as such, the aforesaid Rules are not attracted in the instant case for denying the payment of salary of the intervening period when the services of the said period have been regularized. The petitioner has never prayed for grant of extraordinary leave and as such, the aforesaid Rules are not attracted in the instant case for denying the payment of salary of the intervening period when the services of the said period have been regularized. The fact remains that the petitioner was forced to be out of service because of the order of dismissal and when the order of dismissal has already been quashed, the petitioner is entitled for the salary for the period when he, was out of service. Had the petitioner been allowed to continue in service, he would have readily discharged his service. Having restrained him from discharging his duties for the period from 6.2.1991 to 12.5.1999, the respondents cannot be allowed to press the self-serving plea of denying him wages, for the period in question. As far as salary of the suspension period is concerned, the petitioner is also entitled for the difference of salary of the period of suspension when the suspension itself was, revoked on 4.3.1987 and if the, petitioner had been paid the subsistence allowance, if not, then he is entitled, for the full salary, for that period. 7. In view of the settled principles of law, rules and guidelines, I hereby direct the respondents to pay salary to the petitioner for the intervening period i.e. 6.2.1991 to 12.5.1999 within a period of six weeks from the date of receipt/production of a copy of this order. As a cumulative effect of the aforesaid observations, the impugned order under Memo No. 151(B) dated 15.3.2008 (Annexure-7) issued by the Deputy Commissioner, West Singhbhum, Chaibasa and Memo No. 347 dated 15.3.2008 (Annexure-7/1) issued by the Block Development Officer, Sadar, Chaibasa are hereby, quashed and set aside. The writ petition stands allowed.