B M TRIPATHI Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner B. M. Tripathi was a temporary employee of the State Government. Uttar Pradesh, who was appointed on 21-12-1961 as a salesman at the Government U. P. Handicrafts show-room Lucknow. After some time he was transferred in the same capacity to Gorakhpur show case displayed at the railway station by the U. P. Government Handicrafts. While he was working there, his services were terminated with effect from 11-11-1964, (vide annexure 1 to the writ petition). On a representation made "by the petitioner these orders were withdrawn by the Gov ernment, vide annexure 2 dated 21- 12-1965, in which the petitioner was directed to join his duty as a salesman at Handicrafts show-room, Tajmahal, Agra. This order was received by the petitioner on 5-1-1966. The petitioner then sought some clarification from the Director of Industries, U. P., Kanpur. Regarding the terms on which he was being reinstated after the withdrawal of the previous order relating to the termination of his service with effect from 11-11-1964. This clarification was furnished to him by the Director of Industries (Vide Annexure 3 dated 24-2-1966) which was received by him on 9-3-1966. After that the peti tioner proceeded to Agra and he reported himself for duty in the forenoon of 17-3-1966. But immediately after that he applied for ten days leave with effect from the afternoon of 17-3-1966. The petitioner did not then resume his duty and he was sending applications from time to time for extension of his leave, upto 19-9-1966.

(2.) THE petitioner's contention Is that on 20-9-1966 on a verbal order issued by the then Special Manager, U. P. Gov ernment Handicrafts Show-room Luck-now, he was transferred to Lucknow and he reported himself for duty on the same day at this show-room where he continu ed to work till 28-9- 1967 on which date he was served with an order dated 23-9-67 (Annexure 8) purporting to have been passed by the Additional Director of Industries, Uttar Pradesh. This order recited the facts relating to the termina tion of the petitioner's services with effect from 11-11-1964 and the subsequent withdrawal of this order by means of another order passed by the Government (vide Annexure 2). It was stated therein that since this order had been served on the petitioner on 5-1-1966 he should have joined his duty at Agra on 13-1-1966 at the latest after availing of the joining time permissible under the rules and that the time spent by him in seeking clari fication from the Director of Industries was uncalled for and unnecessary. Hence only the period from 11-11-1964 to 12-1-1966 shall be considered as the period spent by the petitioner on duty in -terms of the orders passed by the Government and the subsequent period from 13-1-1966 to 16-3-1966 had to be covered by a proper application to be presented by the petitioner, he would be granted earned leave on full average pay for this period. Since the petitioner had again proceeded on leave with effect from the after-noon of 17-3-1966 and he made applications from time to time for extending his leave upto 19-9-1966, it was found on a re ference to his leave account that leave on full average pay, leave on private affairs on half average pay and extraordinary leave without pay could be granted to him only for the period from 18-3-1966 to 12-9-1966 and thereafter no leave whatsoever could be granted to him, Lastly, It was stated that since the peti tioner had wilfully absented himself from duty without even making any ap plication for leave after 19-9-1966, he shall be deemed to have resigned his ap pointment in view of the provisions con tained in subsidiary R. 157-A (3) and he shall accordingly cease to be in Govern ment employment after 12-9-1966.

(3.) THE petition was contested on behalf of the opposite-parties. It was reiterated by the opposite-parties that the seeking of clarification by the petitioner was uncalled for and unnecessary and that the period spent by him in doing so could not be treated as the period spent On duty and for that period the petitioner had to apply for leave. It was also denied that the petitioner had, under any verbal order, been transferred to Lucknow on 20-9-1966. It was contended that since the petitioner had over-stayed the period upto which leave could be granted to him, he shall be deemed to have resigned his appointment under subsidiary Rule 157-A (4) (b).