SMT. CHANDRAKANTALAL JAISWAL Vs. STATE OF M.P.

JUDGEMENT

(1.) The petitioners have filed the present petition challenging the order dated 22.02.2014 passed by respondent no.1 by which the respondent no.1 has treated the period of service from 01.05.1983 to 31.08.1994 as without salary on the principle of "no work no pay" as well as the order dated 03.05.2014 (Annexure P-2) by which the respondent no.6 has deducted the house rent from the provisional retiral dues of late Shri Krishna Kumar Lal.

(2.) Brief facts germane for the instant purpose is that Late Shri Krishna Kumar Lal after clearing the PSC Examination came to be appointed as Assistant Conservator 2 W.P. No.15679/2015 of Forest, which after training of two years joined on 15.11.1960. However, on 08.04.1965, Shri Lal was removed from service, which in turn was successfully challenged before this Hon'ble Court by way of M.P. No.490/1967 (vide order dated 22.08.1968). In the meanwhile, between the period of removal and the decision in the aforementioned writ petition, Late Shri Lal cracked the PSC Examination and came to be appinted on the post of Lecturer in the State of Madhya Pradesh vide order dated 23.09.1967. Although in pursuance to the order passed by this Hon'ble Court, Late Shri Lal was reinstated as Assistant Conservator of Forest on 05.12.1968; however, as by then, Late Shri Lal had already joined the Department of Higher Education, therefore, he relinquished his lien on the post of Assistant Conservator of Forest wherein he continue as such and was confirmed in the year 1974. At the relevant time, Late Shri Lal was working as Lecturer in the Government Digvijay College, Rajnandgaon and due to some misunderstanding with the Principal of the College, who 3 W.P. No.15679/2015 became instrumental in getting Late Shri Lal transferred vide order dated 14.12.1982 to Government College, Ganj Basoda, District Vidisha which came to be resisted by late Shri Lal by way of representation dates 20.12.1982. However, as Principal was highly prejudiced, allegedly relieved late Shri Lal ex-parte on 24.12.1982.

(3.) Late Shri Lal, however, continued at Government Digvijay College, Rajnandgaon and on 15.04.1983, the State Government issued an order and stayed his transfer up till 30.04.1984; as consequence thereof Late Shri Lal continued on his post at Government Digvijay College, Rajnandgaon. Further explanations etc. were sought for by Late Shri Lal as also certain complaints were made against the then Principal as he was appointed illegally. However, the superior authorities took an adverse view of the mater and on 11.07.1983, explanation of Late Shri Lal was called, which makes it clear that even at that point of time, Late Shri Lal was working in the Government Digvijay College, Rajnandgaon as the communications were 4 W.P. No.15679/2015 exchanged on that address. However, neither any disciplinary action was taken nor any further orders on transfer were issued by them. A telegraphic message was received to join at Ganj Basoda, District Vidisha on 15.02.1984. However, the said order was modified on 27.04.1984 which was communicated to Late Shri Lal on 14.08.1984 i.e. at his place of transfer was modified from Ganj Basoda to Government College, Dongargarh. All these communications were sent to the petitioner in his capacity as Assistant Professor at Government Digvijay College, Rajnandgaon. It is also pertinent to mention that further increments and order permitting crossing of efficiency bar was also passed during this period treating late Shri Lal's posting at Government Digvijay College, Rajnandgaon. Thus, late Shri Lal continue and so called ex parte relieving order dated 24.12.1984 lost its significance due to the subsequent Government orders there after no relieving order was passed. However, Late Shri Lal due to personal enmity with the then Principal was not allowed to function and despite the subsequent 5 W.P. No.15679/2015 order, staying the earlier transfer order, modification of place of transfer etc. Late Shri Lal was treated as relieved at the local level by the Principal himself. Thus, without any formal relieving, late Shri Lal continued and offered his service on day to day basis at Rajnandgaon itself. Ultimately, when the changed transfer place was communicated to late Shri Lal and he wanted to joint at the transferred place of posting and intimated the Principal, Government College Dongargarh, the Principal, in turn, informed that there is no vacancy and he should not come to join. Pursuant thereto late Shri Lal Communicated the same to the higher authorities of the State Government. However, no clear instructions were forthcoming and Late Shri Lal continued there. A departmental inquiry against Late Shri Lal itself continue and Late Shri Lal was treated as Assistant Professor, Government Digvijay College, Rajnandgaon all throughout. In fact, subsequently in the year 1997 itself, same show-cause notice was issued to Late Shri Lal and these show-cause notices were decided on 14.12.1998 6 W.P. No.15679/2015 wherein it was decided not to impose any penalty against Late Shri Lal who had superannuated on 31.08.1994. It was in this backdrop despite superannuation, Late Shri Lal was not being given his pension and after the long period without salary and nothing was being done, which led Late Shri Lal to file a writ petition before this Hon'ble Court which was registered as W.P. No.6052/2011 (essentially challenging the dies non period whereas entire period has been treated as dies non and thereafter even no decision on retiral dues was being taken. Vide order dated 08.04.2013 passed in W.P. No.6052/2011, the said petition was allowed. The order of dies non dated 22.05.1998 was quashed. However, liberty was given to the State Government, if they so desire to conduct inquiry pertaining to petitioner's availability from 01.05.1983 to 31.08.1994 in Government Digvijay College, Rajnandgaon to deal with the matter of payment of salary for the said period. However, with or without this decision being in favour of petitioner, the period was to be reckoned for the purpose of his pension which was to 7 W.P. No.15679/2015 be worked out by treating the entire period served in the Forest Department for the purpose of pensionary service and all dues worked out and pension fixed in a time bound manner viz. four months. In the garb conducting the inquiry, the impugned order has been passed by the State of Madhya Pradesh totally ignoring the facts on record and the details of all the documents submitted by Late Shri Lal, who was terminally ill and in fact died on 08.03.2013. These documents as submitted to the State Government with a covering list of documents running into more than 300 pages which are on record. However, all this material has been overlooked in passing the impugned order wherein it has been held that Late Shri Lal was not available at Rajnandgaon without even bothering to have an in situ inquiry at Government Digvijay College, Rajnandgaon, solely on the basis of assumption in a predetermined manner. The extent of high handedness is clear from the fact that despite the dies non order quashed, inquiry was stated to treat the same period as dies non for which a contempt petition 8 W.P. No.15679/2015 bearing Conc.1902/2013 was filed and order dated 20.01.2014 was passed therein. Thus, being caught on the wrong foot, the State Government ordered that the entire period in question viz. 01.05.1983 to 31.08.1994 be treated as "no work no pay". However, the order dated 20.01.2014 makes it absolutely clear that the inquiry was limited only to find out about the presence of Late Shri Lal during the relevant period. A bare perusal of Annexure P-10 makes it absolutely clear that overwhelming material provided to the concerned respondent (State Government) leaves no manner of doubt about availability of Late Shri Lal at Rajnandgaon. Needless to mention that after the order dated 20.01.2014 passed by this Hon'ble Court in Conc. No.1902/2013, the concerned respondent ought to have given a fresh notice to late Shri Lal for appearance in the Inquiry proceedings in the changed circumstances of the clarificatory order in contempt proceedings. This was also specifically communicated by late Shri Lal vide his letter dated 27.01.2014. It is one thing to say that employee is 9 W.P. No.15679/2015 available and another thing that he did not work, especially in the light of the fact that when without relieving order, Late Shri Lal was not allowed to function and repeatedly late Shri Lal was making himself available and offering himself, for work, as is absolutely clear from the material on record. In fact late Shri Lal has been illegally kept away from working and hence in such circumstances, principles of "no work no pay" would not apply. Thus, the entire period from 01.05.1983 to 31.08.1994 has to be treated a period spent on duty and late Shri Lal is entitled for full emoluments and the impugned order dated 22.02.2014. So far as second impugned order viz. 03.05.2014 is concerned, the amount of Rs.2,23,730/- has been directed to be recovered from Late Shri Lal's retiral dues as house rent for the period from 01.01.1983 to 24.08.2001, pertaining to occupation of official residence within the College, Rajnandgaon. This itself clearly demonstrates that the petitioners were continuously available in the College campus itself. However, the legality and validity of this order itself is hit 10 W.P. No.15679/2015 by Section 66(4) of the M.P. Civil Services (Pension) Rules, 1976. Learned counsel for the petitioners submits that the impugned orders be quashed and petition be allowed.