Jharkhand High Court
Basant Kumar Aged About 62 Years Son Of ... vs The State Of Jharkhand on 19 August, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 364 of 2022
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Basant Kumar aged about 62 years son of late Surendra Singh, resident of village Berari, P.O. & P.S. Sarai, District Vaishali (Bihar). ... ... Appellant Versus
1.The State of Jharkhand
2. The Principal Secretary Department of Health, Medical Education and Family Welfare, Government of Jharkhand, Nepal House, Doranda, P.O. and P.S. Doranda, District Ranchi
3. The Deputy Secretary, Department of Health, Medical Education and Family Welfare, Government of Jharkhand, Nepal House, Doranda, P.O. and P.S. Doranda, District Ranchi
4. The Civil Surgeon cum Chief Medical Officer, Latehar
5. The Medical Officer-in-charge , Primary Health Centre, Chandwa, P.O. and P.S. Chandwa, District Latehar
6. The Civil Surgeon cum Chief Medical Officer, Deoghar, P.O. P.S. and District Deoghar ... ... Respondent
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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Anjani Kumar Verma, Advocate For the Respondent : Mr. Manish Kumar, Sr. S.C. II Ms. Sunita Kumari, AC to Sr. SC II
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Order No. 06 : Dated 19th August, 2023 Per Sujit Narayan Prasad, J:
I.A. No. 7078 of 2023
1. The present Interlocutory Application has been filed for condonation of delay of 112 days in filing the instant appeal.
2. Heard learned counsel for the parties.
3. No counter affidavit has been filed opposing the prayer for condoning the delay.
4. Having regard to the averments made in this -2- L.P.A. No. 364 of 2022 application, we are of the view that the appellants were prevented by sufficient cause from preferring the appeal within the period of limitation.
5. Accordingly, I.A. No. 7078 of 2023 is allowed and delay of 112 days in preferring the appeal is condoned.L.P.A. No. 364 of 2022
6. The instant intra-court appeal, under Clause 10 of the Letters Patent, is directed against order dated 15.03.2022 passed by learned Single Judge in W.P. (S) No. 3925 of 2014, whereby and whereunder the decision as contained in Memo No. 912 dated 16.04.2014 passed the Principal Secretary, Department of Health, Medical Education and Family Welfare, Jharkhand, by which the claim of the petitioner for regularization and payment of salary for the period 20.03.1997 to 17.06.2001 has been rejected on the ground that the petitioner was absent unauthorizedly, has been refused to be interfered with;
as also refused to grant any positive direction for payment of salary for the period from 20.03.1997 to 17.06.2001, by dismissing the writ petition.
7. Brief facts of the case, as per pleadings made in the writ petition reads as under:
The petitioner while working as Ophthalmic Assistant, Primary Health Centre, Chandwa, Palamau in the erstwhile State of Bihar was transferred to the Office -3- L.P.A. No. 364 of 2022 of Civil Surgeon, Deoghar vide Memo dated 31.12.1996.
Thereafter, vide memo dated 19.03.1997 issued under the Seal and Signature of Director-in-Chief, Health Service, Patna, the earlier transfer order was stayed with immediate effect for those Ophthalmic Assistant who were relieved from the present post. But even after communication of said stay order dated 19.03.1997, the In-charge Medical Officer, Primary Health Centre, Palamau passed order dated 20.03.1997 by which the appellant was relieved from the post of Ophthalmic Assistant, Primary Health Centre, Chandwa, Palamau to join in the office of Civil Surgeon, Deoghar.
8. It is the case of the appellant that after getting relieving, he immediately submitted his joining report before the Civil Surgeon but the same was not accepted. Aggrieved thereof, the petitioner filed writ petition being C.W.J.C No. 1535 of 1997(R) for payment of salary from November, 1995 till date, which was disposed of vide order dated 17.02.1998 with a direction to petitioner- appellant to file representation before the competent authority, who was directed to consider the case of the petitioner for payment of salary within stipulated period of four months.
9. However, order dated 17.02.1998 was modified vide order dated 05.08.1998 on the instance of -4- L.P.A. No. 364 of 2022 respondent-authority to the effect that the petitioner- appellant will get the salary from the authority where he was transferred. In terms of orders passed in C.W.J.C No. 1535 of 1997(R), the petitioner-appellant annexing there with copy of relieving order dated 20.03.1997, submitted his joining to the office of Civil Surgeon, Deoghar but the same was rejected on 17.08.1998 giving reference to transfer stay order dated 19.03.1997. When the joining of the petitioner was not accepted in the office of Civil Surgeon, Deoghar he submitted his joining to the office of In-Charge Medical Officer, Primary Health Centre, Chandwa, Palamau on 29.09.1998 which was accepted but the petitioner was deprived his salary from the w.e.f. November, 1995, as such he filed application for modification of order dated 17.02.1998 passed in CWJC No. 1535 of 1997, which was disposed of vide order dated 14.12.1998 with an observation that the application for modification of order dated 17.02.1998 is not pressed however this will not stand in the way of the appellant to file a fresh writ application for redressal of his grievance.
10. With the aforesaid liberty, the petitioner filed writ petition being CWJC No. 3683 of 1998 for payment of salary from November, 1995 till date as also for quashing relieving order dated 20.03.1997, which was -5- L.P.A. No. 364 of 2022 dismissed vide order dated 31.01.2001 on the basis of false statement made by the respondent-authority in the counter affidavit that order of transfer was implemented and it was neither ever cancelled nor stayed.
11. Against which, the petitioner filed intra-court appeal being LPA No. 82 of 2001 which was disposed of vide order dated 02.03.2001 with a direction upon the respondents to passed order of posting of the petitioner, as such the petitioner submitted representation before Director-in-Chief, Health Services, Jharkhand on 08.03.2001. Thereafter, the petitioner was posted as Ophthalmic Assistant in Primary Health Centre, Sarath, Deoghar vide order dated 14.06.2001 but the intervening period was declared as unauthorized absence.
12. Aggrieved thereof, the petitioner again approached this Court by filing writ petition being W.P. (S) No. 5736 of 2001, which was disposed of vide order dated 01.03.2013 with direction to decide the claim of the petitioner within six weeks. Accordingly, the petitioner represented before the Secretary, Health Department who disposed of his representation vide order dated 16.04.2014 denying his claim for payment for the intervening period i.e. 20.03.1997 to 18.06.2001 on the ground of 'no work no pay'.
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13. Aggrieved thereof, the petitioner again approached this Court by filing W.P. (S) No. 3925 of 2014, for quashing order dated 16.04.2014 by which claim of the petitioner for regularization and payment of salary for the period 20.03.1997 to 17.06.2001 has been rejected, which was dismissed vide order dated 15.03.2022, against which, the present intra-court appeal has been filed.
14. It is evident from the pleadings made in the writ petition that the writ petitioner while working as Ophthalmic Assistant, Primary Health Centre, Chandwa, Palamau was transferred to the Office of Civil Surgeon, Deoghar vide Memo dated 31.12.1996. The aforesaid order of transfer although contains a direction for relieving the concerned employee with immediate effect but the petitioner was not relieved. In the meantime, vide Memo dated 19.03.1997 issued by the Director-in-Chief, Health Service, Patna, the earlier transfer order was stayed with immediate effect for those Ophthalmic Assistant who had not been relieved from the present post and only after that, the In-charge Medical Officer, Primary Health Centre, Palamau passed order dated 20.03.1997 by which the appellant was relieved from the post of Ophthalmic Assistant, Primary Health Centre, Chandwa, Palamau to join in the office of -7- L.P.A. No. 364 of 2022 Civil Surgeon, Deoghar. Pursuant thereto, the petitioner, submitted his joining report before the Civil Surgeon, Deoghar but the same was not accepted assigning the reason that transfer order dated 31.12.1996 has been stayed vide order dated 19.03.1997. The petitioner reported the matter to higher authorities but no order of transfer was issued. Aggrieved thereof, the petitioner approached this Court by filing writ petition for payment of salary from November, 1995 and also for acceptance of his joining, for which the petitioner has to fight round of litigations and lastly on by virtue of order dated 02.03.2001 passed in LPA No. 82 of 2001 the petitioner was posted as Ophthalmic Assistant in Primary Health Centre, Sarath, Deoghar vide order dated 14.06.2001 where he submitted his joining on 19.06.2001 but the intervening period i.e. 20.03.1997 to 18.06.2001 was declared as unauthorized absence.
15. Aggrieved thereof, the petitioner again approached this Court by filing writ petition being W.P. (S) No. 5736 of 2001, which was disposed of vide order dated 01.03.2013 with a direction upon the respondents- authorities to decide the claim of the petitioner within six weeks, as such the petitioner represented before the Secretary, Health Department who disposed of his representation vide order dated 16.04.2014 denying his -8- L.P.A. No. 364 of 2022 claim for payment for the intervening period i.e. 20.03.1997 to 18.06.2001 on the ground of 'no work no pay', which compelled the writ petitioner to file W.P. (S) No. 3925 of 2014, for quashing order dated 16.04.2014 by which claim of the petitioner for regularization and payment of salary for the period 20.03.1997 to 17.06.2001 has been rejected on the ground that impugned order dated 16.04.2014 has been passed after considering a large number of materials/ communications and is a well-reasoned order and there is no illegality or perversity in the impugned order and accordingly dismissed the writ petition vide order dated 15.03.2022, against which, the present intra-court appeal has been filed.
16. Mr. Anjani Kumar, learned counsel for the appellant has submitted that there is no consideration given by the authority while passing impugned order that even though there is no fault lies on the part of the appellant in not discharging the duty but the period from 20.03.1997 to 18.06.2001 has been treated to be unauthorized absence. It has further been submitted that after issuance of transfer order dated 31.12.1996 the relieving order was not issued by the controlling authority and only after issuance of stay order dated 19.03.1997, the relieving order dated 20.03.1997 was -9- L.P.A. No. 364 of 2022 issued in utter violence of direction passed in stay order dated 19.03.1997. It has been contended that the petitioner though reported to the transferred place at Deoghar but his joining was not accepted on the ground that there is stay order on the order of transfer dated 31.12.1996. Immediately, thereafter the petitioner reported to the original place of posting but there also his joining was not accepted since he was relieved therefrom to join other place and since then the petitioner is moving from pillar to post for redressal of his grievance even though there is no fault on his part but his joining had not been accepted and payment for the intervening period has not been made. Lastly when order was passed in LPA No. 82 of 2001 the petitioner was posted as Ophthalmic Assistant in Primary Health Centre, Sarath, Deoghar vide order dated 14.06.2001 where he submitted his joining on 19.06.2001 but the intervening period i.e. 20.03.1997 to 18.06.2001 was declared as unauthorized absence.
17. Therefore, contention has been raised that in the circumstances the appellant was restrained from joining as such he could not be able to report to duty. It is not the case where the petitioner on his own will has not reported to duty.
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18. Therefore, the principle of 'no work no pay' will not be applicable in the case at hand. Further submission has been made that during pendency of writ petition being W.P. (S) No. 3925 of 2014, the petitioner was granted promotion vide order dated 07.07.2020 to the post of Ophthalmic Assistant to Ophthalmic Officer taking into consideration his entire service period and even the petitioner was granted 1st, 2nd and 3rd MACP w.e.f. 09.08.1999, 01.09.2008 and 20.12.2015 respectively taking into consideration his continuous service from the date of his appointment in Government service on 20.12.1985 vide order dated 21.08.2020 but payment of intervening period i.e., 20.03.1997 to 18.06.2001 has been denied treating it to be break in service.
19. It has been submitted on the one hand the respondents-authorities are granting promotion as also MACP treating continuous service and on the other hand for pensionary/retiral benefits it counts break in service for the period 20.03.1997 to 18.06.2001 i.e. for 4 years 2 months and 29 days, which causes recurring financial loss to the petitioner.
20. It has further been submitted that the learned co- ordinate Single Judge while hearing writ petition being W.P. (S) No. 5736 of 2001 taking into consideration the - 11 - L.P.A. No. 364 of 2022 entire aspect of the matter has held that order dated 14.06.2001 by which intervening period was declared to be unauthorized absence requires re-consideration by the authority concerned and granted liberty to the petitioner to file representation before the Secretary, Health Department. In terms thereof, the petitioner represented before him but his representation was rejected vide order dated 16.04.2014 denying his claim for payment for the intervening period i.e. 20.03.1997 to 18.06.2001 on the ground of 'no work no pay‟ without considering the observation made by learned Single Judge in order dated 01.03.2013 passed in W.P. (S) No.5736 of 2001.
21. It has also been submitted that being aggrieved with order dated 16.04.2014, the petitioner filed W.P. (S) No. 3925 of 2014 but the learned Single Judge instead of giving thoughtful consideration of the fact that there was no laches on the part of the appellant-petitioner has dismissed the writ petition merely on the ground that series of litigations has been filed. Contention has been raised by referring to impugned order passed by learned Single Judge that there is no reason assigned regarding the finding with respect to the fact that how the period 20.03.1997 to 18.06.2001 has been considered to be unauthorized absence.
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22. Learned counsel for the appellant on the aforesaid premise has submitted that the impugned order suffers from error and hence not sustainable in the eyes of law.
23. Mr. Manish Kumar, learned Sr. S.C. II being assisted by Ms. Sunita Kumari, learned A.C to Sr. S.C. II appearing for the respondents has defended the order passed by learned Single Judge by making submission that in spite of order of transfer dated 31.12.1996, the petitioner did not join the transferred place for more than two months, hence it cannot be said that there were no latches on the part of appellant. It has further been submitted that it is admitted case that the appellant did not work for the period 20.03.1997 to 18.06.2001 as such he cannot claim salary for the said period and taking into consideration these facts the intervening period has been declared as unauthorized absence from duty and salary has been denied for the said period, which cannot be said to suffer from infirmity.
24. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by learned Single Judge in the impugned order.
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25. This Court, before entering into legality and propriety of the impugned order, deems it fit and proper to refer the admitted factual aspect.
26. Admittedly herein, the petitioner while working as Ophthalmic Assistant, Primary Health Centre, Chandwa, Palamau was transferred vide order dated 31.12.1996 to the office of Civil Surgeon, Deoghar. Since the petitioner was working on Class III post as such it was requirement for the petitioner to join the transferred place only after receipt of relieving order. In absence thereof the petitioner could not have joined the transferred place. It appears that the petitioner was not relieved immediately after order of transfer rather he was relieved on 20.03.1997. But in the meantime, vide memo dated 19.03.1997 issued by the Director-in- Chief, Health Service, Patna, the earlier transfer order dated 31.12.1996 was kept in abeyance with immediate effect specifically mentioning therein that those Ophthalmic Assistant who had not been relieved from the present post, the order of stay will be applicable to them but even then the petitioner was relieved.
27. The petitioner after being relieved submitted his joining report before the Civil Surgeon, Deoghar but the same was not accepted, as would appear from joining report appended as Annexure 5 to the paper book - 14 - L.P.A. No. 364 of 2022 wherein on the left side margin endorsement has been made by the Chief Medical Officer, Deoghar assigning the reason that due to order of stay on transfer order vide order dated 19.03.1997 of the Directorate of Health his joining had not been accepted.
28. The appellant-petitioner after rejection of his joining has become helpless as he was relieved from Primary Health Centre, Chandwa, Palamau but denied to accept the joining on the transferred place i.e., to the office of Civil Surgeon, Deoghar.
29. The aforesaid aspect of the matter was reported by the petitioner to the authorities but no endeavor on the part of the authority concerned was taken by issuing any instruction or issuing fresh order of transfer/posting.
30. The writ petitioner thereafter returned to his previous place of posting and gave his joining which was accepted on 29.09.1998, as would appear from Annexure 6 wherein endorsement to that effect has been given in the left side of margin but the said document has been disputed by the respondents- authorities.
31. However, when the grievance of the writ petitioner was not redressed, the petitioner approached this Court by filing writ petition and finally as per order - 15 - L.P.A. No. 364 of 2022 02.03.2001 passed in LPA No. 82 of 2001 the petitioner submitted representation before Director-in-Chief, Health Services, Jharkhand on 08.03.2001 pursuant thereto, he was posted as Ophthalmic Assistant in Primary Health Centre, Sarath, Deoghar vide order dated 14.06.2001 but the intervening period was declared as unauthorized absence. Therefore, the petitioner again approached this Court by filing writ petition being W.P. (S) No. 5736 of 2001, for salary for the said period which was disposed of vide order dated 01.03.2013 with direction to decide the claim of the petitioner within six weeks but again the claim of the petitioner was denied vide order 16.04.2014 by the Secretary, Health Department denying his claim for payment for the intervening period i.e. 20.03.1997 to 18.06.2001 on the ground of 'no work no pay'. Aggrieved thereof, the petitioner again approached this Court by filing W.P. (S) No. 3925 of 2014, for quashing order dated 16.04.2014 by which claim of the petitioner for regularization and payment of salary for the period 20.03.1997 to 18.06.2001 has been rejected, which was dismissed vide order dated 15.03.2022, against which, the present intra-court appeal has been filed.
32. The issue which requires consideration in this case is as to whether in the facts and circumstances of the - 16 - L.P.A. No. 364 of 2022 case, the period of not discharging duty from 20.03.1997 to 18.06.2001 can be said to be unauthorized absence so as to deny the salary for the said period on the ground of 'no work no pay'.
33. If answer is yes, then certainly the petitioner will not be entitled salary and consequential benefit for the said period and if answer is in negative the petitioner will be entitled for the entire monetary benefit with all consequential benefits.
34. This Court in order to answer the issue first deems it fit and proper to have a view about the interpretation of the phrase 'unauthorized absence' i.e., what is the meaning of 'unauthorized absence'.
35. The absence from service although does not always mean unauthorized. The absence, if is without any authority or without sanction it can be said to be unauthorized. Further the 'unauthorized absence' is to be treated if one or the other employee on his own wish has failed to discharge his duty. Failing in discharge of duty is to be seen from factual aspect.
36. It is settled position of law that for the purpose of consideration of the fact that the absence is authorized or unauthorized a regular enquiry is to be conducted since under the Conduct Rule unauthorized absence is gross misconduct. As such, specific finding is to be - 17 - L.P.A. No. 364 of 2022 recorded by holding a regular enquiry as to whether the conduct of one or the other employee in not discharging the duty is to be considered to be unauthorized. The 'absence' will be said to be unauthorized if the concerned employee, willingly, has failed to discharge his duty i.e., the reason is beyond the control of the concerned employee in not discharging the duty for the period concerned which has been treated to be unauthorized, reference in this regard be made to the judgment rendered by Hon'ble Apex Court in the case of Krushnakant B. Parmar Vs. Union of India and Another, (2012) 3 SCC 178, in particular paragraph 17 and 18, which reads as under:
"17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.
18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct."- 18 - L.P.A. No. 364 of 2022
37. The Hon'ble Apex Court in the judgment rendered in Chennai Metropolitan Water Supply and Sewarage Board and Ors. vs. T. T. Murali Babu, (2014) 4 SCC 108 has dealt with the judgment rendered by the Hon'ble Apex Court in Krushnakant B. Parmar vs. Union of India (supra) as would appear from paragraphs-22 and 23 thereof. For ready reference, the said paragraphs are being referred as under:
"22. The learned counsel for the respondent has commended us to the decision in Krushnakant B. Parmar v. Union of India [Krushnakant B. Parmar v. Union of India, (2012) 3 SCC 178 : (2012) 1 SCC (L&S) 609] to highlight that in the absence of a finding returned by the inquiry officer or determination by the disciplinary authority that the unauthorised absence was wilful, the charge could not be treated to have been proved. To appreciate the said submission we have carefully perused the said authority. In the said case, the question arose whether "unauthorised absence from duty" did tantamount to "failure of devotion to duty" or "behaviour unbecoming of a government servant" inasmuch as the appellant therein was charge-sheeted for failure to maintain devotion to duty and his behaviour was unbecoming of a government servant. After adverting to the rule position the two-Judge Bench expressed thus : (SCC pp. 181-82, paras 16-18) "16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether „unauthorised absence from duty‟ amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or - 19 - L.P.A. No. 364 of 2022 because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.
18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct."
23. We have quoted in extenso as we are disposed to think that the Court in Krushnakant B. Parmar case [Krushnakant B. Parmar v. Union of India, (2012) 3 SCC 178 : (2012) 1 SCC (L&S) 609] has, while dealing with the charge of failure of devotion to duty or behaviour unbecoming of a government servant, expressed the aforestated view and further the learned Judges have also opined that there may be compelling circumstances which are beyond the control of an employee. That apart, the facts in the said case were different as the appellant on certain occasions was prevented to sign the attendance register and the absence was intermittent. Quite apart from that, it has been stated therein that it is obligatory on the part of the disciplinary authority to come to a conclusion that the absence is wilful. On an apposite understanding of the judgment Krushnakant B. Parmar case [Krushnakant B. Parmar v. Union of India, (2012) 3 SCC 178 : (2012) 1 SCC (L&S) 609] we are of the opinion that the view expressed in the said case has to be restricted to the facts of the said case regard being had to the rule position, the - 20 - L.P.A. No. 364 of 2022 nature of the charge levelled against the employee and the material that had come on record during the enquiry. It cannot be stated as an absolute proposition in law that whenever there is a long unauthorised absence, it is obligatory on the part of the disciplinary authority to record a finding that the said absence is wilful even if the employee fails to show the compelling circumstances to remain absent."
38. The Co-ordinate Division Bench of this Court in L.P.A. No. 520 of 2019 has also dealt with the issue as to under which circumstances rendering of service will construed to be unauthorized absence, wherein it would be evident from paragraph 11 that the principle has been followed that in all the cases the delinquent has not rendered his service the same will not be treated to be unauthorized absence rather the unauthorized absence will only be said to be unauthorized if the delinquent employee has not discharged the duty on his own will but the said principle will not be applicable due to compelling circumstances or laches committed on the part of the State or its functionary, the concerned employee has not discharged his duty.
39. This Court on the aforesaid legal premise is proceeding to examine the factual aspect in order to come to the conclusion that the period from 20.03.1997 to 18.06.2001 can be considered to be unauthorized - 21 - L.P.A. No. 364 of 2022 absence so as to deprive the appellant from monetary/consequential benefit for the said period.
40. Herein, the admitted fact is that the writ petitioner was transferred by virtue of order dated 31.12.1996 but said order was kept in abeyance vide order dated 19.03.1997. It is also admitted that the petitioner being Class III employee was required to be relieved to join the new place of posting but was not relieved till 19.03.1997 Only on 20.03.1997 he was relieved by the controlling authority and in compliance of order passed by the controlling authority he submitted his joining to the new place of posting at Deoghar. But his joining was not accepted assigning the reason as would be evident from the application for acceptance of joining itself wherein on the left side margin note has been made by the Chief Medical Officer, Deoghar dated 17.08.1998 that the order of transfer since has been stayed vide order dated 19.03.1997 as such his joining cannot be accepted. Left with no option, the petitioner submitted his joining before the original place of posting, which was alleged to be accepted on 29.09.1998, as would appear from Annexure 6 to the writ petition wherein endorsement to that effect has been given in the left side of margin but the said document has been disputed by the - 22 - L.P.A. No. 364 of 2022 respondents-authorities. But even after acceptance of his joining he was not allowed to discharge his duty.
41. Aggrieved thereof, the petitioner approached this Court under Article 226 of the Constitution of India for redressal of his grievance and finally after order being passed in LPA No. 82 of 2001 vide order dated 02.03.2001 the petitioner was posted as Ophthalmic Assistant in Primary Health Centre, Sarath, Deoghar vide order dated 14.06.2001 where he finally joined on 19.06.2001.
42. It is, thus, evident that it is the order of stay dated 19.03.1997 which was coming in the way for the authorities concerned at Deoghar to accept his joining on the basis of relieving order dated 20.03.1997. Further even when the petitioner tried to join his original place of posting it was also denied. The said fact was brought to the notice of competent authority but no endeavor was taken on behalf of the competent authority either by issuing direction to accept his joining at the place of transfer on the basis of order of transfer dated 31.12.1996 and relieving dated 20.03.1997 or in denial of acceptance of joining on transferred place the acceptance of joining at the original place of posting at Palamau, from where he was relieved or no order was passed for his posting at a new place.
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43. We have already considered the ratio laid down in this regard by the Hon'ble Apex Court in in Krushnakant B. Parmar vs. Union of India (supra) wherein the requirement in a case of unauthorized absence is to give specific finding by the enquiry officer regarding the absence to be willful. However, the said judgment has subsequently been considered by the Hon'ble Apex Court in Chennai Metropolitan Water Supply and Sewarage Board and Ors. vs. T. T. Murali Babu (supra) wherein also the aforesaid view has not been discarded rather it has been observed that before consideration of the enquiry report, the requirement is that the reason beyond control is to be considered by the disciplinary authority.
44. This Court, therefore, on the basis of aforesaid fact and judicial pronouncement has found that there is no laches on the part of the writ petitioner so as to declare that absence was willful i.e., he on his own will has absented himself from service. Therefore, it cannot be said that the writ petitioner has not willfully discharged his duty, rather, it is the situation created by the State functionary which led the writ petitioner to not discharge his duty.
45. The law is well settled that the principle of 'no work no pay' as being applied in the case of writ petitioner is - 24 - L.P.A. No. 364 of 2022 not always to be applicable rather it is to be seen that one or the other employee was willing to discharge and was prevented by the State Government through any compelling circumstances, then the principle of 'no work no pay' will not be applicable. Reference in this regard be made to the judgment rendered by Hon'ble Apex Court in the case of Union of India and Ors. vs. K.V. Jankiraman and Ors., (1991) 4 SCC 109 wherein at paragraph-25 it has been observed as under:
"25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases."
46. We, on the basis of aforesaid discussions and facts narrated above, are of the view that the similar condition is in the instant case as the writ petitioner was willing to discharge his duty but it is the functionary of the State Government has restrained the writ petitioner in discharging his duty.
47. This Court in view of the aforesaid fact is of the view that it is not the case where the principle of unauthorized absence is to be applied. Therefore, the period from 20.03.1997 to 18.06.2001 declared to be - 25 - L.P.A. No. 364 of 2022 unauthorized absence by the respondents-authorities, according to our considered view cannot be said to be rationale decision.
48. Furthermore, the petitioner was granted promotion vide order dated 07.07.2020 from the post of Ophthalmic Assistant to Ophthalmic Officer taking into consideration his entire service period and moreover the petitioner was granted 1st, 2nd and 3rd MACP w.e.f. 09.08.1999, 01.09.2008 and 20.12.2015 respectively taking into consideration his continuous service from the date of his appointment in Government service on 20.12.1985 but his claim for payment of intervening period i.e., 20.03.1997 to 18.06.2001 is being denied and treated it to be break in service. Therefore, at one hand the administrative authority is denying the salary for the aforesaid period 20.03.1997 to 18.06.2001 treating it to be break in service and on the other hand, it is the respondents-authorities who are granting promotion as also MACP treating continuous service.
49. This Court having discussed the factual aspect is coming to the impugned order passed by learned Single Judge, wherefrom it is evident that the learned Single Judge has not shown any reason save and except the reason of filing of series of litigations before this Court. Further, it appears from the impugned order more - 26 - L.P.A. No. 364 of 2022 particularly from paragraph 8 that the reference of the reason assigned by the authority concerned in impugned order dated 16.04.2014 said to be proper but how it is proper there is no discussion to that effect by the learned Single Judge in the impugned order. There is no dispute that the reason might be correct or incorrect but when it falls for judicial scrutiny then it is the bounden duty of the concerned Court to examine the legality and propriety of the impugned order so taken by the authority by assigning the reason. But it is lacking in the order passed by learned Single Judge. Therefore, this Court is of the view that order by the learned Single Judge as also the order passed by the administrative authority require interference by this Court.
50. Accordingly, the order dated 15.03.2022 passed by learned Single Judge in W.P. (S) No. 3925 of 2014, as also decision contained in Memo No. 912 dated 16.04.2014 passed by the administrative authority by which the claim of the petitioner for regularization and payment of salary for the period 20.03.1997 to 18.06.2001 has been rejected, are hereby quashed and set aside.
51. In the result, the writ petition stands allowed. - 27 - L.P.A. No. 364 of 2022
52. This Court having quashed the impugned order dated 16.04.2014 hereby directs the Additional Chief Secretary, Health Department, Government of Jharkhand to disburse the salary for the intervening period 20.03.1997 to 17.06.2001 with consequential benefits within a stipulated period of three months from the date of receipt/production of copy of this order.
53. With the aforesaid observations and direction, the instant intra-court appeal stands allowed.
(Sujit Narayan Prasad, J.) (Navneet Kumar, J.) Alankar/ A.F.R.