CLCON/757/2018
2021 Latest Caselaw 5179 UK

      IN THE HIGH COURT OF UTTARAKHAND
                            AT NAINITAL
      ON THE 16TH DAY OF DECEMBER, 2021
                                  BEFORE:
   HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
       CONTEMPT PETITION No. 757 of 2018

  BETWEEN:

  Damyanti Arya                                               .......Petitioner
       (No representation for the petitioner)


  AND:
  Lakshmi Tamta & another                                    ....Respondents
       (By Mr. J.S. Bisht, Standing Counsel for the State)


                               JUDGMENT

WPMS No. 1788 of 2018 filed by the petitioner was disposed of vide order dated 30.07.2018. Operative portion of the said order is reproduced below:-

"Present petition has been filed by the petitioner for quashing the transfer order dated 30.05.2018 passed by respondent no.2 whereby the petitioner has been transferred from Jaspur, District Udham Singh Nagar to D.P.O. Office Almora.

Case of the petitioner was listed on 25.06.2018 and time was granted to the State to file counter affidavit. Again on 19.07.2018 further time was granted to file counter affidavit but in spite of this fact, no counter affidavit has been filed.

Learned counsel for the petitioner submits that the main ground is that the petitioner's mother is suffering from cancer and she has to look after her mother. Therefore, it will not be possible for the petitioner to take care of her mother at higher centre from Almora. Another reason is that the petitioner met an accident and sustained injury in her knee. It is submitted that the Transfer Act provides that in the event of serious illness of family members which includes parents also, the employee can seek exemption from compassionate transfer. It is submitted that respondents should not transfer the petitioner.

Learned Brief Holder opposed the same and submitted that though counter affidavit has not been filed but there is serious allegation against the petitioner. Therefore, she has been transferred on administrative ground.

I have considered the submissions of learned counsel for the parties. In my view petitioner should be given permission to file representation before respondent no.2 and respondent no.2 be directed to take decision on the representation of the petitioner in accordance with law.

In view of the above, I dispose of the writ petition by directing the petitioner to file fresh representation before respondent no.2 within a period of ten days. In case, such representation is filed, the respondent no.2 shall take decision within a period of two weeks in accordance with law. Keeping in view the fact that the petitioner is on medical leave, it is directed that punitive action shall not be taken against the petitioner for not joining at the transferred place during this period."

2. Alleging willful disobedience of the said order, this contempt petition was filed in the year, 2018. A compliance-affidavit was filed by Mr. Ranvir Singh Chauhan, Director, Women Empowerment and Child Development Department, Uttarakhand, Dehradun. In para no. 5 of the said affidavit, it has been stated that pursuant to the aforesaid order, Director considered petitioner's representation and vide office memo dated 10.10.2018, the transfer order passed in respect of the petitioner was cancelled, taking into account her family problems.

3. In para no.6 of the compliance-affidavit, it has been stated that the Director vide letter dated 19.09.2018 issued necessary instructions to Child Development Project Officer, Jaspur, Rural to make payment of the withheld salary of the petitioner and in para no.7 of the affidavit, it has been stated that payment of withheld salary has been made to the petitioner. On 10.12.2021, petitioner's counsel submitted that petitioner is ready and willing to join duties at Kashipur, where she was attached on her request, however, concerned Child Development Project Officer is not permitting her to join duties.

4. In view of the said submission, State Counsel was asked to get instructions regarding objection, if any, against joining of the petitioner at Kashipur.

5. Today, on instructions, Mr. J.S. Bisht, Standing Counsel submits that Departmental Officers have no objection against the joining of the petitioner at Kashipur and petitioner was requested vide letter dated 11.12.2021 to report for duties at Kashipur.

6. Learned Standing Counsel has pointed out that petitioner has filed Writ Petition (S/S) No. 1117 of 2020 for arrears of salary and also for handing over charge at the place of her posting, which is pending.

7. In view of the aforesaid facts and reasons, this Court is of the considered opinion that this is not a case of willful disobedience of order of this Court.

8. Accordingly, contempt petition is closed.

9. Contempt notice issued to the respondent no.2 is hereby discharged.

10. However, petitioner shall be at liberty to joint at Kashipur within two weeks from today. If petitioner submits her joining, the concerned authority at Kashipur shall accept the same, and permit her to resume duties.

(MANOJ KUMAR TIWARI, J.) Shubham