High Court
Case Details
WP(C) 3951/2010 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (CAV) Heard Mr. K. Sarma, learned counsel for the petitioner and Mr. J. Singh, learned Standing Counsel, Social Welfare Department, Assam for the respondents. 2. By way of this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents for payment of salary si nce October, 2006 and also to grant leave pursuant to his application dated 11.0 2.2010. 3. efly noted.
Legal Reasoning
Facts of the case, as projected in the writ petition, may be bri 4. Petitioner was appointed by the Director of Social Welfare, Assa m (respondent No. 2) as Lower Divisional Assistant (LDA)-cum-Typist on contractu al basis and posted at Pakabetbari Integrated Child Development Scheme (ICDS) Pr oject vide order dated 15.06.2004 at a fixed monthly pay of Rs. 2,890/-. Petitio ner joined on 01.07.2004. According to the petitioner, since the date of his joi ning a group of local youths of the area threatened him and asked him to leave t he area in the interest of local unemployed youths as petitioner was perceived t o be not a local candidate. Notwithstanding such threats, petitioner continued h is service and was accordingly paid his fixed pay. Petitioner informed the authorities of the department about the 5. threats faced by him following which order dated 20.09.2004 was issued by the re spondent No. 2 placing the services of the petitioner in the Directorate of Soci al Welfare, Assam at Guwahati. The Child Development Project Officer, Pakabetbar i, ICDS Project, Barpeta (respondent No. 6) was requested to draw and disburse t he monthly salary of the petitioner from his establishment until further order. Thereafter, petitioner joined in the Directorate and carried on his duties. A selection was thereafter held for the said post of LDA-cum-Typ 6. ist. As the petitioner’s name was forwarded by the District Employment Exchange, Barpeta, call letter was issued to him on 18.01.2005 to appear in the interview scheduled on 05.02.2005. Petitioner appeared in the interview and was selected for the said post vide select list dated 11.11.2005. Thereafter, respondent No. 2 issued office order dated 16.11.2005 appointing the petitioner as LDA-cum-Typi st and posted him in the office of the respondent No. 6. Following his regular s election and appointment, petitioner joined in the office of respondent No. 6 on 18.11.2005. As there was no improvement in the situation at Pakabetbari, petiti oner was allowed to work in the Directorate at Guwahati as ordered earlier. Peti tioner, however, continued to draw his salary from the establishment of responde nt No. 6. However, vide office order dated 27.01.2006, respondent No. 2 di 7. rected the petitioner to report to his original place of posting with immediate effect. But on request made by the petitioner to allow him to work at the Direct orate because of the situation created by the group of local youths at Pakabetba ri, Programme Officer-II, Directorate of Social Welfare, Assam (respondent No. 4 ) verbally informed respondent No. 6 that the petitioner was allowed to work at the Directorate but he would be drawing salary from the establishment of respond ent No. 6. Accordingly, petitioner continued serving at the Directorate, drawing salary from the establishment of respondent No. 6. This continued upto Septembe r, 2006. 8. In October, 2006, respondent No. 6 asked the petitioner to furni sh the attachment order allowing him to work in the Directorate even after issua nce of order dated 27.01.2006. Thereafter, respondent No. 6 did not sign the pay bill of the petitioner because of which no salary has been paid to the petition er since then. 9. As no written order was issued allowing the petitioner to work i n the Directorate, petitioner joined in the office of the respondent No. 6 on 04 .12.2006. While returning from office, he was accosted by a group of unknown loc al youths who threatened the petitioner of dire consequences if he continued his service at Pakabetbari and asked him to leave the place. Petitioner sought the intervention of his higher authorities but as he did not get any positive respon se, he lodged FIR in the Kayakuchi police outpost on 15.02.2007 on the basis of which Barpeta Police Station Case No. 126/2007 under Section 143/353/341/506 IPC was registered. 10. Thereafter, petitioner submitted representation dated 27.02.2007 before the respondent No. 2 seeking transfer from Pakabetbari in view of the th reats received by him. Petitioner’s father, who is a retired employee of the Gov ernment of Assam, also submitted a representation dated 27.06.2007 before the Co mmissioner and Secretary, Social Welfare Department requesting transfer of his s on (petitioner) from Pakabetbari to any place in an around Guwahati. The Commiss ioner and Secretary by his endorsement dated 28.06.2007 asked the respondent No. 2 to shift the petitioner from Pakabetbari to a place where he could join. Peti tioner also submitted representation on similar lines before the respondent No. 2 on 24.10.2008. 11. Respondent No. 2 issued office order dated 27.10.2009 transferri ng the petitioner from Pakabetbari ICDS Project to the Prison Welfare Office, Jo rhat against vacant post. Petitioner was directed to submit leave application th rough proper channel for regularization of his period of absence after joining a t his new place of posting. Petitioner joined in the Prison Welfare Office, Jorh at on 03.12.2009. 12. Unfortunately, petitioner faced the same problem at Jorhat which he faced at Pakabetbari. A local organization objected to his joining at Jorhat as he was again perceived to be not a local person. In view of the uncertain si tuation, District Social Welfare Officer, Jorhat (respondent No. 5) verbally adv ised the petitioner to return back to Guwahati in order to avoid any untoward si tuation. Thereafter, petitioner returned to Guwahati and informed the respondent No. 4 about the situation. He also submitted a representation on 08.12.2009 for transferring him to Kamrup district since he belonged to Kamrup district as oth erwise there would be objections wherever he went. 13. During his stay at Guwahati, petitioner fell ill. His illness wa s subsequently diagnosed by his physician as Tuberculosis. Petitioner was given medical advise to take rest. 14. Petitioner applied to the respondent No. 5 on 11.02.2010 to gran t him leave on account of his illness but there has been no response to his pray er. 15. On the other hand, respondent No. 2 vide his letter dated 24.03. 2010 requested the Programme Officer, Divisional ICDS Cell, Jorhat (respondent N o. 8) to look into the matter and to settle the same, if required by holding dis cussion with the District Administration. 16. Petitioner has contended that he was unlawfully obstructed from rendering service both at Pakabetbari and at Jorhat, which is unconstitutional and the respondents despite being aware of the situation, had failed to take any steps to provide security to the petitioner. Petitioner’s request for a posting at Kamrup district has also not been attended to. No decision has been taken on the leave application filed by the petitioner. In the meanwhile, petitioner has not been paid his salary since October, 2006, causing serious prejudice to him. 17. th the prayer as indicated above. Aggrieved, petitioner has preferred the present writ petition wi 18. Respondent No. 2 in his affidavit filed on 26.08.2010 has taken the stand that there is no record available at the Directorate that petitioner w as verbally allowed to work at the Directorate though he was released from the D irectorate vide order dated 27.01.2006 and that petitioner actually worked in th e Directorate from February, 2006 to October, 2006. Petitioner was transferred t o Jorhat against a vacant post with a direction to the petitioner to submit appl ication for regularization of his period of absence but after joining his new pl ace of posting, no such application has been received from the petitioner becaus e of which no steps could be taken for regularization of the period of absence o f the petitioner. It is further stated that petitioner could not be transferred to Kamrup district as no post of LDA-cum-Typist within the district of Kamrup is vacant. Regarding the objection to the petitioner joining at Jorhat by a local organization, respondent No. 2 does not dispute the same but has stated that acc ording to the report of respondent No. 5, after submission of joining report at Jorhat, petitioner left office and remained absent from duty. The leave applicat ion submitted by the petitioner for medical leave is also not in proper format a nd was sent through an unknown person. Respondent No. 2 has stated that petition er will have to apply in proper format and through proper channel along with rel evant medical certificates to enable the department to grant leave and thereafte r his leave salary can be drawn w.e.f. 07.12.2009. 19. Petitioner in his reply affidavit has reiterated the averments m ade in the writ petition and contends that because of threats received by him, h e was verbally allowed to work in the Directorate but his salary was drawn from the establishment of respondent No. 6. This fact is known to the respondent No. 6. Therefore, question of petitioner remaining absent from duty does not arise a s he was discharging duty in the Directorate instead of Pakabetbari till he was transferred to Jorhat. The police investigation after the petitioner lodged FIR established the truthfulness of the complaint of the petitioner. Petitioner has stated that if he had remained unauthorizedly absent, he could not have been tra nsferred to Jorhat.
Legal Reasoning
Mr. Sarma, learned counsel for the petitioner submits that becau 20. se of reasons which were beyond the control of the petitioner, he could not cont inue his service under the respondent No. 6. Being aware of the situation faced by the petitioner, the respondents shifted the petitioner to Jorhat where also h e faced similar objection from a local organization. On being advised by respond ent No. 5 to come back to Guwahati for the time being to avoid any untoward inci dent, petitioner came back to Guwahati on 07.12.2009 and during his stay at Guwa hati he fell seriously ill, which was detected as Tuberculosis. In such circumst ances, there was no default on the part of the petitioner. Mr. Sarma, learned co unsel for the petitioner therefore contends that the present is a fit case where this Court should intervene in the matter by directing the respondents to regul arize the service of the petitioner under the respondent No. 6 and also to grant leave to him w.e.f. 07.12.2009. 21. Mr. Singh, learned Standing Counsel on the other hand submits th at petitioner is himself responsible for the situation in which he now finds him self. He submits that the respondents have strictly gone by the Rules and since petitioner was not found working under respondent No. 6 despite him being releas ed at the Directorate by order dated 27.01.2006, naturally petitioner could not be paid salary. Again, in so far grant of leave to the petitioner is concerned, the leave application is required to be submitted as per Rules and only after le ave is granted, petitioner would be entitled to salary for the leave period. 22. Submissions made have been considered. 23. The fact that petitioner is regularly appointed as LDA-cum-Typis t is not disputed. It is also not disputed that the petitioner was obstructed an d threatened by unidentified youths while serving under respondent No. 6. Even a criminal case has been registered at Barpeta on complaint being lodged by the p etitioner. To avoid any untoward situation, the authorities had to relocate the service of the petitioner to the Directorate with salary being paid from the est ablishment of respondent No. 6. Petitioner and his father had represented before the authorities to shift him to a safer place. Acknowledging the difficulties f aced by the petitioner, respondents shifted the petitioner to Jorhat where also the same thing was repeated. As the departmental authorities were unable to cont rol the situation, petitioner had to come back home to Guwahati where he fell il l, which was diagnosed as Tuberculosis. 24. In such circumstances, it cannot be said that there was willful or deliberate lapse on the part of the petitioner. The department also failed to stand behind the petitioner in clear and unequivocal terms that objection to th e petitioner serving either at Pakabetbari or at Jorhat on the ground that he is not a local person is totally unconstitutional. Regarding the prayer for leave made by the petitioner, the objection of the respondents appears to be more of f orm than of substance as according to the respondents, the leave application is not at per format and was submitted by an unknown person. Considering the totality of the facts and circumstances of the c 25. ase and in the interest of justice, the Court deems it appropriate to pass the f ollowing directions:- 1. Petitioner shall join his place of posting at Jorhat within a period of 15(fifteen) days from today. The departmental authorities shall ensure that ther e is no obstruction to the rendering of service by the petitioner at Jorhat by a ny person or group, if necessary by taking the assistance of the district and po lice administration of Jorhat, The Director of Social Welfare, Assam (respondent No. 2) shall call for 2. the relevant service record of the petitioner and pass appropriate order(s) regu larizing the service of the petitioner under respondent No. 6 prior to his joini ng the Prison Welfare Office, Jorhat. He shall also take on board the leave appl ication submitted by the petitioner and pass appropriate order(s) regarding gran t of leave to the petitioner w.e.f. 07.12.2009. If the respondent No. 2 consider s it necessary, petitioner shall file leave application afresh as per format whi ch shall be routed through the office of District Social Welfare Officer, Jorhat (respondent No. 5), After regularizing the service of the petitioner, both at Pakabetbari an 3. d at Jorhat, he shall be paid his salary, both current and arrear, 4. e) days from the date of receipt of a certified copy of this order. The above exercise shall be carried out within a period of 45 (forty-fiv 26. above. Writ petition accordingly stands allowed to the extent indicated 27. No cost.