RAJ NATH DWIVEDI Vs. STATE OF ARUNACHAL PRADESH

JUDGEMENT

(1.) By making this application under Article 226 of the Constitution of India, the petitioner, who was a teacher in the department of education, Govt. of Arunachal Pradesh, has approached this Court with prayers, inter-alia, to issue writ/ writs, commanding the respondent No. 2 to withdraw the memorandum, dated 11.12.97 (Annexure 31 to the writ petition), whereby petitioner's service stands terminated, and restore the service of the petitioner, giving him place of posting, pay and dues etc. from the year 1990 along with interest and/or set aside and quashing the memorandum, dated 11.12.97 aforementioned.

(2.) In an nutshell, petitioner's case may be stated as follows :- The petitioner was appointed temporarily as junior teacher and posted to Govt. Secondary School, Daporijo, vide letter bearing memo N,o. ED/2/APT/478/ 85, dated 16.09.85 (Annexure 1 to the writ petition). Pursuant to the letter of appointment, the petitioner joined, on 06.11.85, at the Govt. Secondary School, Daporijo, district Upper Subansiri. At Daporijo, the petitioner was allotted an OBT hut to live, which was made of bamboo. This hut got destroyed during the rainy season and having no accommodation, the petitioner was then, transferred to Govt. Middle School, Dong, Upper Subansiri District. Even there the situation was no better and the petitioner was made to live in OBT hut, which too got collapsed. Though the petitioner was facing these difficulties, his wages for the month of November, 1989 were withheld. On his representation, the petitioner was re-transferred to the Govt. Secondary School, Daporijo, and was allowed to share a quarter occupied by another teacher, namely Sri R.D.Tathod, by order, dated 01.02.90 (Annexure 4 to the writ petition). However, respondent No.3 continued to withhold the salary of the petitioner and no reason was assigned for withholding of the salary. The petitioner submitted several representations in this regard, on such representation being dated 12.03.90 (Annexure 5 to the writ petition). The respondent No. 3 vide letter dated 14.03.90 directed the petitioner to submit a leave application for his alleged period of absence. The petitioner informed Direction of Public Instructions vide letter dated 28.3.90(Annexure 7 to the writ petition) that he was never absent. The petitioner requested to DPI to give appropriate instructions to the respondent No.3, to pay his dues. The petitioner in one of his letters addressed to the respondent No.3 wrote about some undesirable practices carried out by respondent No. 4, Consequently, on 26.04.90, the Dy. Director of Public Instructions, suddenly, released the petitioner from his district and placed his service at the disposal of the DPI for further posting. The petitioner accordingly reported to the DPI, at Naharlagun, on 07.05.90 and requested for necessary orders. On 08.05.90, the petitioner once again, called upon the DPI and the DPI showed the petitioner a letter from the respondent No. 4, which contained some allegations against the petitioner. The petitioner denied the allegations and requested that an enquiry be made into the allegations. No enquiry was, however, carried out. On 08.05.90, the petitioner submitted a representation (Annexure 8 to the writ petition) to the DPI in respect of non-receipt of his salary from November 1989. On 08.05.90, the DPI gave verbal direction/order to the petitioner to rejoin his duties at the Govt. Secondary School at Daporijo. The verbal instruction was, later on, supplemented by a written order, dated 11.05.90 However, by this time, the summer vacation had started and on 02.07.90, at the end of the vacation, the petitioner reported for duty at the School, but the respondents No.4 prevented the petitioner from joining his duty and put an endorsement in this regard on the joining report of the petitioner, whereupon the petitioner took his report with the written endorsement of the Head Master to the DPI and requested for further orders/ instructions. The DPI endorsed the joining report to the Joint Director (Establishment) with the remarks "please examine" and the petitioner, then, duly reported to the Joint Director (Establishment) with the document aforementioned. The Joint Director, vide, letter, dated 13.07.90, transferred the petitioner to Tawang in the interest of public service. On receipt of this order, the petitioner requested for instructions as to from the establishment he should draw his wages for the period from 26.04.90 to 13.07.90. He also drew the attention of the Joint Director to his representation, dated 08.05.90, with regard to withholding of his emoluments from 01.11.89. The Joint Director, then, endorsed on transfer order on 17.07.90, thus: "His joining at Daporijo may be accepted. Please release him after giving all dues." (Annexure 10). The petitioner personally met respondent No. 3 on 1.8.90 and requested from payment of his dues and for advance due to the petitioner on account of his transfer. This was followed by letter, dated 2.8.90. The petitioner, on 3.8.90, received the letter, dated 4.5.90, through the dispatch register of the Government Secondary School, Daporijo. In this letter, it was stated that the petitioner pay from 19.1.90 to 30.4.90 was regularly drawn by the respondent No.3 but the same was not drawn by the petitioner from the office of the respondent No.3. It was also stated therein that the salary for the month of March and April were sent to the school for disbursement, but the same were not drawn by the petitioner. It was further stated therein that the salary for the month of November, 1989, to 18.1.90 would be released if the petitioner submits a leave application (Annexure 12). The petitioner, on 3.8.90, replied to this letter, on 27.8.90, stating that according to the respondent No. 3's own showing, petitioner's salary was drawn regularly, but was not sent along with that of the other teachers of the School in Daporijo. It was also made clear by the petitioner that he was never absent and that he had managed to perform his duty inspite of all the difficulties that he had faced. The petitioner, once again, requested for release of his dues to enable him to leave for his new place of posting. Instead of making payment to the petitioner of his dues, the respondent No. 3 issued yet another order, dated 21.8.90, releasing the petitioner, which was received by the petitioner on 6.9.90. Along with the cover containing the release order, the respondent No.3 also issued another memorandum of the same date directing the petitioner to draw his pay and allowance w.e.f. 19.1.90 onwards from his office. After receipt of the aforesaid memorandum, the petitioner personally met the respondent No. 3 on 10.9.90 and complained that neither all his dues nor the advance he was entitled to had been paid to him and a considerable amount of money had been withheld for no reason at all. The respondent No. 3 replied that the petitioner's balance due has been withheld on the orders of the Deputy Commissioner, Upper Subansiri District, and his transfer advance would be paid after vacation of the quarter. However, when the petitioner made enquiries from the Deputy Commissioner, the Deputy Commissioner denied having issued such orders. By memorandum, dated 10.9.90, received by the petitioner on 13.9.90, the Circle Officer, Daporijo, directed the petitioner to collect his pay for the months of January, 1990 to August 1990, from his office, but made no mentioned about the due advances. By letter, dated 1.10.90, the DPI, once again, ordered the respondent No. 3 to clear petitioner's pay and allowances for the period of November, 1989, to 18.1.90 immediately and also the home town LTC for the session 1987-88 to enable the petitioner to report for duty to the Deputy Director of Public Instructions, Tawang. In defiance of this order, the petitioner was paid only his salaries for the period from 19.01.90 to August 1990 by the Circle Officer, Daporijo. The petitioner was also paid his salary for the month of September, 1990 on 10.10.90. However, the petitioner was not paid his dues from 01.11.89 to 18.01.90. The petitioner was not paid LTC for the session 1987-88 in contravention of the specific orders of the DPI. He was also not paid his transfer allowance/ advance. When the respondent No. 3 was appraised of the situation of the petitioner regarding the difficulties that he had been facing in the matter of in his transfer to Tawang, respondent No. 3 directed the petitioner to stay at Daporijo. On 13.12.90, when the petitioner was away from Daporijo, his wife and children were evicted forcefully and illegally from his quarter and all his belongings were seized. Against his forceful eviction from the quarter, the petitioner moved this Court in Civil Rule No.991/91 and this Court vide order, dated 08.05.91, directed the authorities concerned to comply with the order, dated 01.10.90, of the DPI, wherein the DPI had directed the Deputy Director of Public Instruction, i.e., the respondent No. 3 to clear the dues of the petitioner to enable him to join his duty at Tawang. However, the dues were still not paid and instead, the respondent No. 3 asked the petitioner to join as junior teacher at Government Secondary School, Maio, which the petitioner joined on 15.11.91. Subsequently, a contempt petition was also filed by the petitioner before this Court, wherein this Court by its order, dated 09.03.92, directed the respondents to return the said seized goods of the petitioner. Thereafter, the DPI issued a fresh order, dated 04.06.92, transferring the petitioner to Anini. This was done in contradiction to the DPIs earlier letter, dated 04.02.91, wherein it was stated that the petitioner should be released from Daporijo only after making payments due to him. Subsequently, the DPI sent a letter, dated 24.02.93, asking the petitioner to join duties immediately failing which his service would be terminated. The petitioner on receipt of the letter, dated 24.02.93, aforementioned wrote a letter, dated 06.03.93, to the DPI stating that the said seized articles had not been returned to him and his outstanding dues had not been cleared and as such, it would not be possible on his part to join his duty at his new place of posting. The outstanding dues for the period from November, 1989 to 18.01.90 for which this Court had given the direction as far back as on 08.05.91 were paid to the petitioner in the month of March 1996 vide letter, dated 19.02.96 of respondent No. 3 after a gap of nearly five years from the date of the direction given by the Court. The petitioner acknowledged receipt thereof on 11.03.96 and requested the respondent No. 3 to inform him of his place of posting so that he could join his duties immediately. The petitioner was paid his outstanding dues only for the period from November, 1989 to 18.01.90 and he was not paid his dues from October 1990 till the date. It was in these circumstances that the respondent No.2 issued an order, dated 11.12.97, terminating the service of the petitioner w.e.f. 1.4.92(Annexure 31, page 84) Thereafter, the petitioner submitted representation, dated 01.01.98, against the said order of termination, but there was no response and, hence, the petitioner has, once, again, approached this court.

(3.) The respondents have contested this case by filing their affidavit-in-opposition. Their case, being, in brief thus: The service condition of the petitioner did not make it mandatory for the respondents to provide him with official accommodation etc. The petitioner has left his place of posting, namely, Government Middle School, Dong without any leave application/ permission during the period, in question, i.e., November 1999 and did not perform his duties and it was for this reason that his salary was withheld. On one pretext of another the petitioner has not been performing his duties and remained absent from duties without applying for leave and without intimation to the authorities concerned. The period from 01.11.89 to 18.01.90 was not regularized as the petitioner remained absent from duties with leave. Left with no alternative, his service has been terminated by the impugned order, dated 11.12.97 as per the CCS (temporary services) Rules 1965 as well as in terms of his appointment order under FR 18 in as much as no employee can be allowed to continue in service for remaining absent with or without leave for more than five years. The order of termination so passed is legal and valid. The writ petition, may, therefore, be dismissed.