Tripura High Court
Presently Holding The Post Of Junior ... vs The State Of Tripura on 23 September, 2020
Author: Akil Kureshi
Bench: Akil Kureshi
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HIGH COURT OF TRIPURA
AGARTALA
W.P. (C) No.314/2020
Sri Nirmalya Datta, Son of Sri Nepal Datta, resident of Netaji
Chowmuhani, PO - Agartala, PS - West Agartala, Sub-division -
Agartala, District - West Tripura.
Presently holding the post of Junior Engineer, DWS Division, Kumarghat,
Sub-division - Kumarghat, Unakoti, District - Unakoti Tripura.
.....Petitioner(s)
Versus
1. The State of Tripura, represented by the Commissioner & Secretary,
Public Works Department, Government of Tripura, Civil Secretariat
Complex, New Capital Complex, PO - Secretariat Complex, PS - New
Capital Complex, Sub-Division - Agartala, District - West Tripura, Pin -
799006.
2. The Commissioner & Secretary, Public Works Department, Government
of Tripura, Civil Secretariat Complex, New Capital Complex, PO -
Secretariat Complex, PS - New Capital Complex, Sub-Division -
Agartala, District - West Tripura, Pin - 799006.
3. The Engineer-in-Chief, Public Works Department, Government of
Tripura, Civil Secretariat Complex, New Capital Complex, PO -
Secretariat Complex, PS - New Capital Complex, Sub-Division -
Agartala, District - West Tripura, Pin - 799006.
4. The Executive Engineer, Mechanical Division, Public Works
Department, Government of Tripura, Agartala, West Tripura.
.....Respondent(s)
For Petitioner(s) : Mr. Somik Deb, Advocate.
For Respondent(s) : Mr. Debalay Bhattacharjee, GA.
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HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
Date of hearing : 03.09.2020.
Date of delivery of : 23.09.2020.
Judgment & order
Whether fit for reporting : No.
JUDGMENT & ORDER
This petition has a chequered history. Briefly stated the facts are as under:
The petitioner possessed a Diploma in Engineering. He joined the Public Works Department (PWD), Government of Tripura as an Overseer on 17.11.1987. He wanted to pursue the degree in Mechanical Engineering. He, therefore, applied to the Department on 17.04.1990 for permission to pursue the said course and to grant him study leave. The petitioner joined a two year Degree course in the year 1990 and completed the same sometime in the year 1993 when a Degree was conferred on him.
2. In the meantime, since the Department had not sanctioned the petitioner‟s study leave, there was a dispute between the two sides about the manner in which the petitioner‟s absence from duty should be treated. Page 3 of 13
3. The petitioner received a job offer from a private company at Kolkata and wanted to join the service in the said company. The petitioner, therefore, wrote to the department on 25.05.1994 that he may be released from service with effect from 25.04.1994. Once again on 08.07.1994, the petitioner wrote to the department and conveyed that since the department had not issued his release order, he was unable to join the private employment and therefore, he had decided to withdraw his earlier letter of resignation. It is an admitted position that pursuant to the said letter dated 08.07.1994, the department did not take any steps. Neither was the petitioner informed that he could not withdraw a resignation previously tendered, nor was he allowed to withdraw the resignation. It is also an admitted position that whatever the stand of the petitioner and the action or inaction on part of the department, after May, 1994, the petitioner did not perform his duties.
4. It appears that the department published a tentative seniority list for the post of Junior Engineers (Mechanical) Degree and Diploma holders on 29.06.2000. In such tentative seniority list, the name of the petitioner was shown in the category of Diploma holder Junior Engineers. According to the petitioner, since he had already acquired a degree in Engineering, he should have been placed in the seniority list along with other degree holders. The department thereafter published a final seniority list on Page 4 of 13 03.06.2002 in which also the petitioner was shown as a Diploma holder and not a Degree holder. The petitioner thereupon filed W.P. (C) No. 102 of 2004 and prayed for setting aside the above noted tentative as well as final seniority list. This petition was withdrawn with a liberty to file a fresh petition. During this period, the Chief Engineer, PWD passed an order dated 08.06.2004, which reads as under:
"Pursuant to his letter No. Nil dated 25/5/94, the resignation of Shri Nirmalya Datta, Junior Engineer (Mech) is hereby accepted with effect from 25/4/94."
5. The petitioner thereupon filed a fresh petition W.P. (C) No.84 of 2005 in which the said order was also challenged. According to the petitioner, the department could not have passed a retrospective order accepting the resignation of the petitioner, that too after 10 years. This petition remained pending for a long time. It was eventually disposed of by a Judgment dated 21.06.2013. The learned Single Judge passed following order:
"12. Embedded with the series of facts as narrated in the writ petition and the response made thereto, this Court finds that while issuing the impugned order dated 08.06.2004, the competent authority did not at all consider the incidence of recalling of the resignation letter by the communication dated 08.07.1994 and its legal impact. Even though in the counter affidavit they have improved their stand by way of averment which according to this Court cannot be accepted as the true account of facts. Apart that, the law postulates that if within the period of three Page 5 of 13 months or before the resignation is accepted the person, who had tendered to resign, recalls the said resignation, the appointing authority should not act on such prayer for resignation mechanically. They may of course resort to the other action. Apart that, the contentions of the respondents that since the resignation was accepted from 25.05.1994 it has to be deemed that the resignation has been effective from the said date and therefore the communication for recalling the resignation made on 08.07.1994 cannot have any impact on the decision as taken by the respondents. This analogy at the same time cannot be accepted by this Court. The date of acceptance of the resignation cannot be dated back in the manner as has been done in this case, unless is optd by the person concerned without change of the position interregnum. The date of acceptance has to be on 08.06.2004 for all purposes. As such, the impugned order dated 08.06.2004 cannot sustain the test of Article 14 of the Constitution of India and accordingly the said order dated 08.06.2004 stands quashed. But at the same time this Court would not travel beyond this direction. In the circumstances, the respondents are directed to consider the following aspects as emerged in this proceeding within a reasonable time but by any rate not later than six months from today.
a) Whether the petitioner can get the study leave for the period as spent for prosecuting his studies in the course of B. Tech. in the NERIST in terms of the provisions of Tripura State Civil Services (Leave) Rules, 1986, if that period of absence has not been already regularised by other leave/s.
b) Whether the petitioner can be absorbed in the Grade-VA of the Tripura Engineering Service for acquisition of the degree of B. Tech. from NERIST on preference of the writ petitioner. If he is absorbed in the said grade what would be his seniority in the final seniority list and;
The respondents are given liberty to take appropriate decision as regards the absence of the petitioner from 25.04.1994 till date. Page 6 of 13
While taking such decision the respondents are directed to take due consideration of the communication dated 08.07.1994, where the petitioner had categorically expressed to join his service as the Junior Engineer, Mech. under the PWD.
With this direction and observation, this writ petition stands allowed to the extent as indicated above. There shall be no order as to costs."
6. Pursuant to the said Judgment of the High Court, the department first issued an Office Order dated 11.09.2013, relevant portion of which reads as under:
"The Pay & allowances of Sri Datta shall be fixed as per Rules. Other issues as mentioned in the instant Judgment will be dealt with separately as per norms."
7. Subsequently, the disciplinary authority issued a departmental Charge Sheet dated 07.12.2013 in which following charges were labeled against the petitioner:
"i. Sri Datta left his place of posting at Agartala w.e.f. 25.04.1994 for Kolkata without prior permission of the Department and joined in service in a private company in Kolkata without applying for the same through proper channel and without following the due procedure and thus violated the Service Conduct Rules.
ii. Sri Datta did not report for duty for about 10 years after filing the prayer dated 08.07.1994 for revocation of his resignation Page 7 of 13 prayed for vide his application dated 25.05.1994 and thus violated the Service Conduct Rules.
iii. Sri Datta had kept himself unauthorized absent from Government duty for the period from 25.04.1994 to 07.06.2004 i.e. more than 10(ten) years."
8. The petitioner thereupon filed W.P. (C) No.1046 of 2017 and challenged the said Charge Sheet dated 07.12.2013 mainly on the ground that in the earlier Judgment of the High Court in W.P. (C) No.84 of 2005, no such liberty was granted to the department. This petition was disposed of by the learned Single Judge by a Judgment dated 18.06.2018 in which this contention was rejected. However, the learned Judge laid down a time limit of 6 months for completion of this departmental inquiry. When there was further delay in conclusion of the inquiry, the petitioner filed yet another Writ Petition being W.P. (C) No.77 of 2019, which was disposed of by a Judgment dated 19.03.2019. The learned Judge did not permit the department to carry on the departmental proceedings. It was ordered that the disciplinary proceedings stand closed. It was, however, provided that the department shall treat the period of absence between 25.04.1994 to 07.06.2004 as Dies-non with break in service.
9. The department thereupon issued a Memorandum dated 10.06.2009 in which after giving the full background of the proceedings, it was stated Page 8 of 13 that considering such facts, the petitioner should explain why his period of absence from duty between 08.06.2004 to 11.07.2013 not be treated as Dies-non with break in service. The petitioner replied to the said notice under a representation dated 28.06.2019 in which he contended that his resignation was illegally accepted by a retrospective order. His absence between 08.06.2004 to 11.07.2013 was not voluntary. In fact, he was prevented from discharging his duties. The said period therefore, cannot be treated as un-authorized absence.
10. Ignoring such pleas of the petitioner, the departmental authority issued impugned order dated 31.01.2020 in which he held that the petitioner‟s reply to the show cause notice was not satisfactory. He provided that "NOW, THEREFORE, after going through the entire episode and extending all sorts of opportunities to Shri Nirmalya Dutta, JE (Mech), the undersigned reached to the conclusion that Sri Dutta failed to maintain the absolute integrity and devotion to duties and thus violated the relevant provisions of TCS (Conduct) Rules, Leave Rules and the other Rules as applicable to a public servant in such case and in exercising the powers delegated to the appointing authority/disciplinary authority, the period of absent from Government duty w.e.f. 08.06.2004 to 11.07.2013 is ordered to be treated as 'Dies non' without break, in service." Page 9 of 13
11. This order, the petitioner has challenged in the present petition. Learned counsel for the petitioner submitted that the petitioner was prevented from discharging his duty during the period in question. He was not on un-authorized absence. In any case, the entire period which is treated as Dies-non, could not have been done without full-fledged departmental inquiry. In support of this contention, counsel relied on following decisions:
(i) In case of Arunangsho Roy vs. State of Tripura and ors.
reported in (2001) 1 GLR 204;
(ii) In case of Mahesh Kumar Shrivastava vs. State of M.P. and ors., reported in 2007 (3) MPHT 362.
12. On the other hand, learned Government Advocate, Mr. Debalay Bhattacharjee supported the order under challenge and submitted that the competent authority had given sufficient opportunity of hearing the petitioner. The petitioner had failed to discharge duties between 08.06.2004 to 11.06.2013. The order treating the said period as Dies-non without break in service was therefore correctly passed.
13. Though facts are lengthy, they are not disputed. The petitioner tendered his resignation in May, 1994 indicating his intention to sever the relationship with effect from April, 1994. This was on the basis that he had Page 10 of 13 secured a private employment. However, in July, 1994, he indicated to the department that he has changed his mind and he wished to withdraw the resignation. Unfortunately, the department neither accepted the resignation in time, nor allowed the petitioner to withdraw the resignation pursuant to his letter written in July, 1994. Equally, strangely, the petitioner simply stopped reporting for duty and this continued year after year. Rather unfortunately, even the department did not react to the petitioner‟s absence from duty for nearly 10 years. It is only when the petitioner filed a writ petition before the High Court and claimed that his name should be shown in the seniority list as Engineering Degree holder and not a Diploma holder, the department suddenly woke up from deep slumber and issued a rather strange order dated 08.06.2004 accepting the petitioner‟s resignation with effect from 25.04.1994. In the previous round of litigation, this Court has held that the said order of acceptance of resignation was invalid and illegal and thereby, allowed the petitioner to resume duty as if his resignation was not accepted. In subsequent judgment the Court provided that the entire period of absence between 25.04.1994 to 08.06.2004 would be treated as Dies-non with break in service.
14. The department also initiated departmental proceedings for the petitioner‟s un-authorized absence during the said period of 10 years, however, could not complete the proceedings within time permitted by the Page 11 of 13 Court and therefore, such proceedings were terminated by the High Court and treated as closed. It was then that the department issued a show cause notice proposing to treat the period between 08.06.2004 to 11.07.2013 as Dies-non with break in service. After hearing the petitioner, however, this proposal was toned down and the entire period was treated as Dies-non without break in service.
15. To my mind, the order suffers from illegality. Firstly, in the said order itself, it is observed that the petitioner had failed to maintain absolute integrity and devotion to duties and had also violated the relevant provisions of TCS Conduct Rules and the Leave Rules. The said authority could not have come to such conclusions without holding a departmental inquiry. He virtually held that the petitioner had committed misconduct. This could have been done only after holding a departmental inquiry. Further, the very premise of the said authority that the petitioner was absent un-authorizedly, is totally fallacious. The department had accepted the resignation of the petitioner by an order dated 08.06.2004, which the petitioner challenged in a writ petition before the High Court. This writ petition was allowed only in June, 2013 by which the said order dated 08.06.2004 was set aside. Therefore, for the period between 08.06.2004 till the High Court rendered its Judgment on 21.06.2013, according to the department, the petitioner was no longer a Government servant since his Page 12 of 13 resignation was already accepted. High Court corrected this petition by the Judgment dated 21.06.2013, and therefore, there was no question of the petitioner being absent from duty without leave. The question of treating the period as Dies-non on the ground that the petitioner was un- authorizedly absence therefore does not arise. Even otherwise, if the petitioner was responsible for his absence though such absence may not be strictly speaking un-authorized, the competent authority perhaps could have treated the said period as Dies-non. However, this is not one such case.
16. Under the circumstances, the said order must be set aside. However, the petitioner cannot hope to receive any salary for the entire period on the simple principle of „no work no wages‟. It may be that the petitioner challenged the said order of the department dated 08.06.2005 and which was set aside by the High Court in June, 2013, however, few glaring facts cannot be ignored. Firstly, the petitioner was substantially responsible for this impasse. After the department failed to accept his resignation or failed to respond to his withdrawal of resignation, he disappeared from the scene for nearly 10 years. Further, after filing the writ petition in the year 2005, there is nothing on the record to suggest that the petitioner requested the Court to take up the petition on urgent basis.
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17. Under the circumstances, while setting aside the impugned order dated 31.01.2020, it is further provided that the petitioner shall not be entitled to any salary for the entire period of absence between 08.06.2004 and 11.07.2013, however, the said period shall be counted for all other purposes such as pay fixation and pension.
18. Petition disposed of accordingly. Pending application(s), if any, also stands disposed of.
(AKIL KURESHI), CJ sima