Ranu Ram vs Himachal Pradesh State on 24 September, 2020

[Cites 2, Cited by 1]

Himachal Pradesh High Court

Ranu Ram vs Himachal Pradesh State on 24 September, 2020

Case of the petitioner is that he was serving with the respondentBoard as Assistant Lineman, when vide Annexure A1, dated 26.05.2015, he was ordered to be temporarily shifted from Electrical Section, Himachal Pradesh State Electricity Board (HPSEB), Ltd. Tharoch, under Electrical SubDivision HPSEBL Nerwa to Electrical Section HPSEB Ltd. Marog, under Electrical SubDivision HPSEB Ltd. Chopal, for fifteen days with immediate effect. Petitioner could not join the place of transfer as he was suffering from 40% permanent disability which he had acquired in harness, on account of which he was not in a position to serve at the place of transfer and he had a right to be posted at a place preferably near to his native place. It is a matter of record that vide Annexure A3, dated 22.01.2016, the petitioner was ordered to be adjusted at Electrical SubDivision, Nerwa, ::: Downloaded on - 30/09/2020 20:17:38 :::HCHP 3 .

under Electrical SubDivision Chopal, against a vacant post with immediate effect. In compliance thereto, the petitioner joined his duties on 28.01.2016. Thereafter, vide Annexure A 5, the petitioner was again readjusted at Electrical Section, HPSEBL, Tharoch.

2. The grievance of the petitioner is with regard to nonpayment of salary to him as between the period when he stood transferred vide Annexure A1 and till the time he was adjusted vide Annexure A3. The contention of the petitioner is that in view of the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, i.e. the Act in force at the relevant time, the petitioner could not be denied the wages for the period when he could not join the station to which he was transferred, as Section 47 of the above Act fully protected him.

On these counts, the petitioner has prayed that respondents be directed to release salary him for the months of May 2015, ::: Downloaded on - 30/09/2020 20:17:38 :::HCHP 4 .

June 2015, September 2015 to January 2016 and also a part of March 2016.

3. The petition has been resisted by the respondents, inter alia, on the ground that vide Office Order dated 26.05.2015 (Annexure A1), the petitioner was ordered to be shifted to Chopal for fifteen days. The petitioner was relieved from HPSEB Section, Nerwa, on 28.05.2015, but he disobeyed the orders and did not join there. Petitioner remained willfully absent from 28.05.2015 upto 30.06.2015. Thereafter, the transfer of the applicant (petitioner) was cancelled vide order dated 04.07.2015. Petitioner otherwise is in a habit of disobeying the orders of his superiors as many complaints stood filed against him from time to time. Vide order dated 27.08.2015, the petitioner on promotion to the post of Lineman, was posted at Electrical Section, Marog and he was relieved from duties with the direction to join the new place of posting vide order dated 01.09.2015. However, he did not join his duty at Marog and remained willfully absent. Thereafter, ::: Downloaded on - 30/09/2020 20:17:38 :::HCHP 5 .

he was adjusted at Electrical SubDivision Nerwa, under Electrical SubDivision, Chopal, against a vacant post vide letter dated 22.01.2016. Petitioner was paid the salary w.e.f.

21.01.2016 to 29.02.2016. Thereafter, he again remained willfully absent from duty w.e.f. 14.03.2016 for a period of sixteen days in the month of March and, thus, he was not entitled for grant of wages, which he is claiming by way of this petition.

4. I have heard learned Counsel for the parties and have gone through the pleadings as well as record appended therewith.

5. In my considered view, in the peculiar facts of this case, the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 do not come to rescue of the petitioner. Section 47 of the 1995 Act (supra) reads as under: "Nondiscrimination in Government Employments (1) No establishment shall dispense with, or reduce in rank, an employee who acquired a disability during his service:

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.

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government, may having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section".

6. Here the grievance of the petitioner was not that the job which was being assigned to him either of an Assistant Lineman or a Lineman was not of a nature which he could not perform with the kind of disability he was suffering from.

Apparently, the petitioner was not happy with his transfer to Marog, when he was transferred to the said station earlier as an Assistant Lineman and thereafter, on promotion as a Lineman, therefore, he did not join there. He has not placed anything on record to demonstrate that on account of his disability, he was not in a position to serve at Marog.

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7. That being the case, this proves the contention of the respondentBoard that the petitioner remained willfully absent from duties. As such, in my considered view, the principle of 'No Work No Pay', but natural, is attracted and petitioner cannot claim wages for the period when he did not perform his duties on being transferred to Marog earlier as an Assistant Lineman and later on as a Lineman and remained absent from duty. Similarly, even for the month of March, when he remained willfully absent for a period of sixteen days, he could not claim any wages.

8. In these circumstances, this writ petition is disposed of with the direction that though the petitioner cannot be granted any salary for the period claimed by him as he remained willfully absent from duty during the period in issue, but he shall be at liberty to have this period converted into leave of the kind due to him.

9. At this stage, learned Counsel for the petitioner informs the Court that though the petitioner has ::: Downloaded on - 30/09/2020 20:17:38 :::HCHP 8 .

superannuated in the 2017, however, his pensionary emoluments have not been paid to him till date. It is observed that if pendency of this petition was the only impediment in the nonpayment of pension to the petitioner, then needful be positively done within a period of thirty days from today.

Petition is closed in above terms, so also pending miscellaneous application, if any. Interim order, if any, also stands vacated.

COPCT No.586 of 2020

10. As this Court does not finds any willful disobedience of any order passed by the Court, these contempt proceedings are accordingly dropped. Notice stands discharged.

(Ajay Mohan Goel) Judge September 24, 2020 (Rishi) ::: Downloaded on - 30/09/2020 20:17:38 :::HCHP

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Himachal Pradesh High Court