Basant Kumar Aged About 62 Years ... vs The State Of Jharkhand
2023 Latest Caselaw 3008 Jhar

                             -1-      L.P.A. No. 364 of 2022



 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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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."

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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

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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

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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

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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

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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

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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

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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

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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.

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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.