JAMWANT PATHAK Vs. GOVT. OF NCT OF DELHI THROUGH THE CHIEF SECRETARY 5TH FLOOR, DELHI SACHIVALAYA, NEW DELHI

JUDGEMENT

(1.) By this OA, Shri Jamwant Pathak working as the Upper Division Clerk (UDC) with the Government of NCT of Delhi, has approached the Tribunal with following relief(s): -

(2.) Brief factual matrix of the case would reveal that the applicant who joined as LDC on 30.05.1994 in Deputy Commissioners Office, was transferred to Maulana Azad Medical College w.e.f. 26.11.2001 and was detailed on diverted capacity in the Department of Health and Family Welfare (DHFW) w.e.f. 03.01.2005. He was promoted on 13.07.2007 as Upper Division Clerk (UDC) and transferred to Lok Nayak Hospital, New Delhi but continued to work on diverted capacity with DHFW. It is the case of the applicant that vide order dated 27.01.2010 (Page -14), he was appointed to assist the SDM (Kotwali) ERO/AC -15&16 for the preparation and revision of Electoral Rolls for Assembly Constituency 15 and 16 in diverted capacity till further orders. He joined the duty on 01.02.2010. Vide letter dated 09.02.2010 (Page -15), the ERO informed the Additional Secretary DHFW that the applicant could continue to attend the Court matters in DHFW also along with his election related duties. It is stated that the applicant was drawing his pay and allowances from the office of Superintendent, Lok Nayak Hospital and applicants attendance Certificate was sent by SDM/ ERO on 5.07.2010. The 5th respondent in his letter dated 24.11.2010 (page -17) addressed to SDM/ERO informed that it would not be possible for DHFW to spare applicants services and he should be relieved immediately, as the DHFW had decided to create a legal cell where applicant would be required. It is further the applicants case that the 5th respondent, without waiting for the SDM/EROs response, issued an order dated 26.11.2010 directing him to take over the charge from Shri Jagdish LDC of DHFW. Vide letter dated 29.11.2010 (Page 18), the SDM/ERO informed 5th respondent that the applicant was working in his office and deployed in the ongoing summary revision of Electoral Rolls which was being done in a time bound manner on the direction of Election Commission of India. Attention of the 5th respondent was also drawn to the provisions of Section 13CC of the Representation of the People Act, 1950. It is applicants case that the 5th respondents has misguided the 3rd respondent to the extent that applicant had been relied from election duty but not joined DHFW, as a result directions were issued on 09.12.2010 for stoppage of his salary. In the meantime, he was issued a Show Cause Notice dated 14.12.2010 (Page 19) indicating therein that he was unauthorisedly absenting from duty w.e.f. 26.11.2010, to which the applicants reply dated 20.12.2010 (Annexure -A7) was forwarded to 3rd respondent vide letter dated 21.12.2010 (Page -22) wherein the SDM/ERO inter alia informed that the Electoral Rolls would be published in the month of January 2011 after which the applicant would be allowed to handle the court cases of DHFW. He also requested 3rd respondent to release applicants salary in order to avoid any financial hardship to him/his family since the applicant was performing election duties even on weekly/gazetted holidays. SDM/ERO also requested 4th respondent in his letter dated 05.01.2011 (Page -23) to release applicants salary. It is alleged that despite letter dated 18.01.2011 (Annexure -A10) sent by SDM/ERO to 3rd respondent, the 5th respondent ensured that no action could be taken to release his salary. In the meantime, vide order dated

(3.) 02.2011 the applicant was transferred to Election Department from Lok Nayak Hospital on regular basis and he was relieved from the Lok Nayak Hospital on 7.02.2011. It is averred by the applicant that though 4th respondent requested 5th respondent to release applicants salary from December, 2010 to February 7, 2011 and to issue Last Pay Certificate (LPC) but 5th respondent with malafide intention directed 4th respondent not to release salary and LPC. Being aggrieved, the applicant represented the 3rd respondent in the matter vide his letter dated 21.02.2011 (Page 27). Even, Election Officer in his letter dated 16.03.2011 (Page -28), Special CEO in his letter dated 07.04.2011 and CEO on 28.04.2011 (Page 30) wrote to 3rd respondent to release salary to the applicant. As he did not get his admissible salary, finding no other alternative he approached this Tribunal on 02.05.2011. 3. After issue of notice to the respondents when the case came up for hearing on 16.05.2011, the following directions were issued: - Present: Shri Ajesh Luthra, counsel for the applicant. Shri B. K. Purchure, Election Officer (Admn.) departmental representative on behalf of R -2. Dasti Notices were issued on 04.05.2011 which are stated to have been served on all the respondents. Today, Shri B. K. Purchure, Election Officer (Admn.) representing respondent No.2 appeared. He made a statement that they are not able to release the salary of the applicant because his LPC has still not been received from the Department of Health & Family Welfare. Applicant has joined as UDC by way of regular transfer from the Lok Nayak Hospital to the Chief Electoral Officer. It is rather strange that LPC of the applicant has not yet been sent, even though applicant was transferred way back in February, 2011. The Medical Superintendent, Lok Nayak Hospital has not even responded to the notice given to him. It goes without saying in this stage that it is very difficult for a UDC to survive without getting the salary. Of course, if there is any legal impediment, at least the Medical Superintendent, Lok Nayak Hospital should have come forward and either inform the office of the Chief Electoral Officer or should have explain it to the Court. In these circumstances, we are constrained to order the personal appearance of Medical Superintendent, Lok Nayak Hospital in Court on the next date. It is made clear that in case applicants LPC is sent to the office of the Chief Electoral Officer before the next date, there would be no requirement to the Medical Superintendent, Lok Nayak Hospital to appear in Court in person. List this case on 27.05.2011. Issue copies of this order to Respondents No.2, 3 and 4 by Special Messenger.