Orissa High Court
Narayan Padhy vs State Of Orissa And Another on 4 May, 2017
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
O.J.C. NO. 5584 OF 1998
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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AFR
Narayan Padhy ........ Petitioner
-Versus-
State of Orissa and another ......... Opp. Parties
For petitioner : M/s. Damodar Mishra,
S.K. Mishra, Y. Nayak,
A.K. Behera, S. Jena and
J.K. Rout, Advocates.
For opp. parties : M/s. B.K. Pattnaik,
P. Sinha and S.S. Parida.
Advocates.
(O.P. No.2)
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PRESENT
THE HON'BLE DR. JUSTICE B.R. SARANGI
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Date of argument: 27.04.2017 : Date of Judgment: 04.05.2017
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DR. B.R. SARANGI, J. The petitioner is a Diploma holder in
Electrical Engineering. He was first appointed on 07.11.1979 as a
Junior Engineer in the erstwhile Orissa State Electricity Board
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under Jeypore Electrical Circle. Later on, he was posted in
Rayagada Electrical Sub-Division and worked at different
Sections till 26.07.1988. Thereafter, he was transferred to
Jeypore Electrical Division, where he joined as Junior Engineer-II
on 01.08.1988 at Koraput and continued till 02.12.1993. While
working there, although he was again transferred to
Bhubaneswar Electrical Circle and posted at Balipatana Section
vide Orissa State Electricity Board office order dated 25.06.1990,
the said order was not implemented and subsequently cancelled
on 15.09.1990 and he was allowed to continue at Koraput as
before for the period from 11.09.990 till 02.12.1993. But,
however, petitioner was debarred from getting his requisite
entitlement of salary, incremental benefits, bonus, T.A., house
rent for the period from 11.09.990 till 02.12.1993. As against the
same, petitioner made grievance before the authority concerned
and the same having not been attended to, he filed OJC No.5710
of 1993, which was disposed of by order dated 20.12.1993
directing the opposite parties to sanction and disburse all
outstanding salary and make up to date the service book of the
petitioner within eight weeks. Thereafter, the authority
sanctioned the period from 12.09.1990 till 02.12.1993 as
compulsory leave by office order dated 27.12.1997, which is
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subject matter of challenge before this Court in the present writ
application.
2. Mr. D. Mishra, learned counsel for the petitioner
contended that the order dated 20.12.1993 passed by this Court
in OJC No.5710 of 1993 has not been complied with in its letter
and spirit, meaning thereby, the period from 12.09.1990 till
02.12.1993, which has been treated as compulsory leave pursuant to office order dated 27.12.1997, is not justified. As a matter of fact, the petitioner is entitled to get the entire benefits, for the said period, and his increment should have been re-fixed accordingly and the scale of pay admissible to the post should have been extended to the petitioner forthwith. It is further contended that the order dated 20.12.1993 passed in OJC No.5710 of 1993 having not been complied with by the opposite parties within eight weeks, the petitioner had filed another writ petition bearing OJC No.14902 of 1997 with the prayer to direct opposite party no.2 therein to clear up the claims of the petitioner, which are reproduced below:-
"(a) Arrear salary from 1.8.1988 to 31.8.1990 minus the lump sum amount of Rs.19,091.10 paise.
(b) Arrear salary from 11.9.1990 to 2.12.1993.
(c) T.A. from 1.8.1988 to 2.12.1993 at Rs.240/- per month approximately.4
(d) Bonus as allowed from 1987 till now.
(e) Increments from 1985 onwards.
(f) Periodical revision of pay as in force from time to time.
(g) Differential salary claims from 2.12.1993 to till date (Full salary minus initial salary already paid).
(h) Up to date the service book and supply the duplicate one to the petitioner as per law.
(i) That the petitioner was paid initial salary at Rs.1150.00 since 1993 till 1997 and thereafter pay at basic salary of Rs.1450.00 till now without pay fixation made and increments allowed thereto though the petitioner has completed service of Nineteen Years till date."
Though nothing has been stated about the aforementioned writ application, in course of hearing, Mr. D. Mishra, learned counsel for the petitioner states that the said writ application has been withdrawn and now the petitioner only confines his prayer to quash the letter dated 27.12.1997 in Annexure-14 and direct the opposite parties to treat the period from 12.09.1990 till 02.12.1993 as duty and extend the benefits, as admissible to the petitioner in conformity with the provisions of law.
3. Mr. S.S. Parida, learned counsel appearing on behalf of Mr. B.K. Pattnaik, learned counsel for opposite party-GRIDCO specifically urged that the writ petition is liable to be dismissed for non-joinder of proper parties, meaning thereby, during pendency of the writ petition, the petitioner service has been 5 placed under the administrative control of the distribution company, namely, SOUTHCO, w.e.f. 01.10.2002 and subsequently his service was terminated w.e.f. 19.05.2005. It is further contended that for the selfsame relief, the petitioner cannot approach the Court successively. Therefore, the writ application is also otherwise not maintainable and liable to be dismissed. It is also contended that the period from 12.09.1990 till 02.12.1993, which relates to after relieve and subsequent joining of the petitioner, was not to be treated as leave, but salary thereof is to be paid provided the service book of the petitioner is made up to date. The petitioner remained unauthorized absent from 12.09.1990 till 02.12.1993 and did not join in the place of posting, unless the service book is regularized, the benefit is not admissible to him. Pursuant to order passed in OJC No.5710 of 1993 dated 20.12.1993 the petitioner was permitted to submit leave application for regularization of his long absence from duty, but he did not submit any application. Finally, the authority on considering the materials available on record regularized the services of the petitioner for the period of his long absence, i.e., 12.09.1990 to 02.12.1993 treating the said period as compulsory leave. In view of such position, no illegality or irregularity has been committed 6 by the authority in passing the order impugned which does not warrant any interference by this Court at this stage.
4. Having heard learned counsel for the parties and after perusing the records, since pleadings between the parties have been exchanged, with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.
5. Though several reliefs have been sought for in the writ application, during the course of hearing learned counsel for the petitioner confined his contention with regard to regularization of service of the petitioner for the period from 12.09.1990 till 02.12.1993 and also payment of his legitimate dues for the said period. So far as claim of the petitioner with regard to regularization of services for the said period is concerned, the same has been taken into consideration by the opposite parties in compliance of the order dated 20.12.1993 passed in OJC No.5710 of 1993. The service period has been regularized and the petitioner has been paid in conformity with the provisions of law and, as such, he has been called upon to file leave application for the unauthorized absence for the period from 12.09.1990 till 02.12.1993. Since he did not produce any 7 leave application before the authority that he had rendered service for the said period in spite of giving opportunity to comply the order dated 20.12.1993, the authority treated the said period as compulsory leave and accordingly extended the benefits to the petitioner admissible to him. The said period has been regularized as per the provisions of leave Regulation and more particularly when the petitioner had not discharged any work or function during the said period, he is not entitled to get any other benefits except the benefit granted in consonance with the order passed by the authority in Annexure-14 dated 27.12.1997.
6. No doubt, leave is a condition of service. The various aspects of leave are generally governed by rules or administrative instructions. The principle that leave cannot be claimed as of matter of right is generally recognized in service rules. The concept of leave in service law seems to be that it is in the nature of a grant and it is not a right of an employee. There are various kinds of leave, namely, earned leave, half pay leave, commuted leave, extraordinary leave, sick leave, maternity leave, study leave, etc. etc. as mentioned in various leave rules of the authority concerned. Although leave necessarily means 8 that an employee is absent from his duty, yet such absence being unauthorized the service conditions almost universally recognize the right of the employee to receive remuneration during the period of leave. It is not as if such payment is without any consideration. The consideration is that leave contributes significantly to the physical and mental efficiency of the employee in discharging his duties. This is a case where the petitioner remained absent unauthorizedly even if he has been requested by the authority to file an application for grant of leave to regularize the period, but the petitioner did not comply with the same.
7. In view of such position, in compliance of the order dated 20.12.1993 passed in OJC No.5710 of 1993, in order to regularize the service, the period from 12.09.1990 to 02.12.1993 has been treated as compulsory leave and, consequentially, the service of the petitioner for the said period having been regularized, the petitioner has already received the benefits as due and admissible to him. Therefore, for the selfsame relief the present writ petition is not maintainable.
8. Apart from the above, as the service of the petitioner is now placed under SOUTHCO, it is a necessary party 9 to the proceeding itself, because the GRIDCO authority is no more possessing the service record of the petitioner. Therefore, with all fairness the petitioner would have impleaded the present employer, i.e., SOUTHCO, as one of the opposite party, so as to call upon them to produce the record. In spite of opportunity being given to the petitioner, Mr. D. Mishra, learned counsel for the petitioner did not feel inclined to implead SOUTHCO as a party to the proceeding. Therefore, due to non-impletion of SOUTHCO, the writ petition otherwise suffers from non-joinder of proper party.
9. Considering from all angles, as discussed above, this Court is of the considered view that the writ petition does not deserve consideration both on ground of merits as well as maintainability. Therefore, the same is hereby dismissed. No order to cost.
Sd/-
(DR. B.R. SARANGI ) JUDGE The High Court of Orissa, Cuttack The 4th May, 2017/Ashok/GDS True copy Sr. Secretary