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2020 DIGILAW 485 (HP)

Sumedha Bhatti v. State of Himachal Pradesh

2020-08-13

JYOTSNA REWAL DUA, TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. - The petitioner is an Assistant Commissioner of State Taxes & Excise (for short ACST&E) and while posted at Daharamshala, had availed earned leave w.e.f. 26.12.2018 to 05.02.2019. In the integrumm, vide order dated 02.01.2019, the petitioner was ordered to be transferred as Assistant Commissioner of State Taxes & Excise at Nurpur. 2. The petitioner instead of joining at the transferred station claimed to have made a request for extending her earned leave from 06.01.2019 to 07.03.2019. In addition thereto, it is averred that such request was also forwarded through FAX to the Joint Commissioner of State Taxation and Excise office at Palampur. The petitioner thereafter also contacted in the office telephonically, who assured that the leave would be sanctioned ex post facto. 3. Subsequently, vide order dated 11.02.2019, the petitioner was ordered to be transferred and posted at the headquarter Excise and Taxation Commissioner, Shimla, where she joined as such on 19.03.2019. Further the petitioner has also not been paid the salary from August 2019, constraining the petitioner to file the instant petition for the grant of the following substantive reliefs:- (i) That writ in the nature of mandamus may very kindly be issued, directing the respondents to pay her salary for the period of January 2019 and February 2019 and further the salary for the period from August 2019 to till date. (ii) That the respondents may kindly be directed to sanction the earned leave of the petitioner submitted by her from 06.01.2019 to 07.03.2019 and as submitted by her, as ex post facto. (iii) That the writ in the nature of certiorari may kindly be issued and the false and frivolous show cause notice issued by respondent No. 2 dated 29.06.2019 (copy of the said notice has not been served on the petitioner and is also not in her possession) may kindly be quashed and set aside and further illegal, arbitrary proceeding and further action in furtherance of said notice on the back of petitioner, may be quashed and set aside. (iv) That the writ in the nature of certiorari may kindly be issued and the Annexure P-7 which has been issued arbitrary on false and frivolous, may very kindly be quashed and set aside. (iv) That the writ in the nature of certiorari may kindly be issued and the Annexure P-7 which has been issued arbitrary on false and frivolous, may very kindly be quashed and set aside. (v) That the respondent may very kindly be directed to provide the proper sitting office to the petitioner with conducive environment as has been provided to the other female officer and as has been prescribed in the Prevention of Women Sexual harassment. 4. When the petition came up for consideration for the first time on 21.07.2020, the respondents were directed to file reply/instructions. In terms of the instructions so received, it is pointed out that the petitioner in respect of the leave availed w.e.f. 17.12.2018 to 16.03.2019, had to submit revised request letter which despite repeated request has not been produced by her in the office of respondent No. 4. 5. It is also averred that the Joint Commissioner, State Taxes & Excise (GST), on 25.05.2019, informed that the petitioner was on leave for the last two weeks and not coming to the office regularly, on account of which work assigned to her is pending and her presence was marked on the biometric machine only on 10.05.2019. 6. Apart from that, there is no record of the petitioner being present in the office. It is due to her absence from the office without obtaining prior sanction or permission that the salary was stopped from the month of July, 2019 and on 29.06.2019 a Show Cause Notice was issued to the petitioner to which the petitioner neither replied nor remained present in the office. Earlier also, when the petitioner was also posted at Sirmour and Kangra, she remained absent from official duty and did not obey the order of the superior authorities. It was on account of constant willful absence of the petitioner, that a Show Cause Notice was issued to her. Despite this, there is no change in the conduct, behavior and responsibility of the petitioner towards her duty. 7. Further vide office letter dated 25.02.2019, respondent No. 1 was asked to initiate disciplinary action against the petitioner, for which she was afforded an opportunity of being heard and directed to remain present in the office of respondent No. 1 on 02.11.2019 to explain her position in this regard. 8. 7. Further vide office letter dated 25.02.2019, respondent No. 1 was asked to initiate disciplinary action against the petitioner, for which she was afforded an opportunity of being heard and directed to remain present in the office of respondent No. 1 on 02.11.2019 to explain her position in this regard. 8. During the course of hearing, the petitioner presented a letter vide which she has stated that a separate room be allotted to her and leave be sanctioned in her favour but despite this the petitioner did not choose to present herself before respondent No. 1. 9. As regards providing of separate room to the petitioner, it was submitted that on petitioner being regular in duty, the room would be made available to her. 10. The petitioner thereafter vide letter dated 04.01.2020 and 24.04.2020 was directed to submit a revised proforma in proper format for availing earned leave and further remain present in office so that leave be sanctioned in her favour but the petitioner has not presented herself in the office even after the lapse of one year. 11. The petitioner has not filed any counter to these instructions. 12. Once that be so, we have no doubt in our mind that the petitioner seems to be riding high on the fuel of power and has failed to realize that the office manned by her is sacrosanct and is meant for use and not for abuse and, in case, the petitioner spoils the rules, then law is not powerless and would step in. The petitioner being a government servant cannot act like a private individual, who is free to act in a manner whatever he/she likes unless it is interdicted or prohibited by law. 13. It needs no reiteration that the public servants have to act strictly in the four corners of the law and all the activities are governed by rules, regulations, instructions etc. etc. Discipline is the hall mark of every employee and in case an employee is not ready to subject himself/herself to discipline, then obviously, he is to not only invite the wrath of his employer but is also liable to be proceeded at least departmentally. Every employee must be loyal and disciplined towards his employer, which the petitioner has failed. 14. Discipline is the hall mark of every employee and in case an employee is not ready to subject himself/herself to discipline, then obviously, he is to not only invite the wrath of his employer but is also liable to be proceeded at least departmentally. Every employee must be loyal and disciplined towards his employer, which the petitioner has failed. 14. We observe so, because the petitioner is educated and working as ACST&E and therefore very well knew that leave cannot be claimed as a right and in the present case, much less in a manner as claimed by the petitioner, the petitioner cannot dictate terms to respondent by seeking ex post facto sanction of the earned leave in absence of there being any provision for the same. As an obedient government servant the petitioner ought to have applied for the leave in accordance with law and only thereafter proceeded on leave. 15. The country governed by rule of law and put it in the immortal words by 17th century English Churchman Thomas Fuller "Be you ever so high, law is above you". 16. Every employee is not only expected but is mandated by law to maintain good conduct and discipline and show courtesy and attention to all persons in the office but here is a case where the petitioner for no valid rhyme or reason has not reported for a duty for over a year. 17. Once the subject matter of the lis is already subject to the Show Cause Notice issued to the petitioner, she cannot prompt and preempt a decision in her favour by filing the instant petition. 18. Accordingly, we find no merit in this petition and the same is dismissed. Pending application(s), if any, also stands disposed of. Parties are left to bear their own costs. 19. It is made clear that the observations made here-in-above are solely for the determination of this petition and shall have no bearing on the proceedings which have been initiated in pursuance of the Show Cause Notice.