Full Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.06.2013 CORAM THE HONOURABLE MR.JUSTICE T.RAJ.W.P.No.6096 of 2008 K.Ganesamurthy .Petitioner -versus 1.
Commissioner/Director Department of Sericulture Bakus Complex Anaimedu, Salem 2.
Assistant Director of Sericulture (Regular) Thinnoor S.O., Hosur Krishnagiri District .Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records of the 2nd respondent in Se.Mu.No.2113/B/2004 dated 29.1.2005, quash the same and further direct the respondents to pay the salary of the petitioner for 500 days (i.e., from 28.2.1995 to 11.7.1996).For Petitioner :: Mr.M.V.Venkataseshan For Respondents :: Mrs.M.E.Raniselvam Additional Government Pleader ORDER
This writ petition has been filed by Mr.K.Ganesamurthy seeking a prayer for issuance of a writ of certiorarified mandamus, to call for the records on the file of the second respondent, the Assistant Director of Sericulture (Regular).Thinnoor, Krishnagiri District passed in proceedings Se.Mu.No.2113/B/2004 dated 29.1.2005, to quash the same with a further direction to the respondents to pay the salary of the petitioner for 500 days viz., from 28.2.95 to 11.7.96.
2.
Mr.M.V.Venkataseshan, learned counsel for the petitioner submitted that the petitioner was appointed in the Sericulture Department in the year 1982 and his services were regularised in the said Department.
Subsequently, he was serving as Junior Inspector of Sericulture under the jurisdiction of the second respondent.
While he was serving in Kalayarkoil, Sivagangai District, the Regional Deputy Director of Sericulture, Madurai, by proceedings dated 3.9.94, sought to transfer the petitioner to Krishnagiri from Kalayarkoil.
Aggrieved by the order of transfer, the petitioner and two other persons approached the Tamil Nadu Administrative Tribunal in O.A.Nos.4697 to 4699 of 1994, of which the petitioner's application is O.A.No.4698 of 1994.
By final order dated 12.9.94, the Tribunal allowed the petitioner's application holding that the order of transfer dated 3.9.94 passed by the Regional Deputy Director of Sericulture, Madurai was without jurisdiction.
On that basis, the Tribunal held that the practice of transferring a person from one region to another region should be by the Head of the Department.
However, by giving liberty to the Head of the Department, the Tribunal directed the respondents to keep in abeyance the order of transfer till the further order was issued by the competent authority.
In spite of such an order, no posting order was given to the petitioner to serve in Sivagangai District.
Though the petitioner made several representations to the fiRs.respondent, there was no response, resultantly, 680 days had lapsed.
Ultimately, the petitioner was issued with the posting order on 11.7.96.
Immediately on the next date viz., 12.7.96, he joined duty.
Therefore, the question is, when the petitioner was not issued with any posting order after the order passed by the Tribunal in O.A.No.4698 of 1994 dated 12.9.94 and secondly when the department also, after initiating disciplinary proceedings on two charges viz., that he had not submitted any leave application from 1.9.94 to 11.7.96 and that he had not handed over charge, found that the charge no.1 was not established against the petitioner, since he has not absented from duty, it goes without saying that the petitioner is entitled to receive the salary for 500 days.
However, when a representation was given to pay the salary, the respondents till date have not come forward to settle the salary for 500 days, resultantly, the petitioner has come to this Court.
The learned counsel further submitted that even if this Court looks at the order passed by the disciplinary authority dated 1.11.2001 holding the petitioner not guilty in respect of charge no.1 and imposing the punishment of 'Censure' in respect of charge no.2, the case of the petitioner deserves to be accepted by giving suitable directions to the respondents to pay the salary for 500 days, since the petitioner had availed earned leave for 180 days.
3.
In reply, a detailed counter affidavit has been filed by the fiRs.respondent, the Commissioner of Sericulture.
The learned Additional Government Pleader appearing for the respondents submitted that when the petitioner obtained an order of stay against the transfer order issued by the Regional Deputy Director of Sericulture, Madurai dated 3.9.94, the Regional Deputy Director of Sericulture, Dharmapuri had issued necessary posting orders relieving the petitioner from the old station on 31.8.94.
Therefore, the order of transfer issued by the Regional Deputy Director of Sericulture, Madurai was valid as per Rules.
Further, when the petitioner obtained an order of stay against the transfer order before the Tribunal, he has not obtained any order of stay against the relieving order.
4.
This Court is not able to agree with the stand taken by the respondents, for the reason that when the Regional Deputy Director of Sericulture, Madurai passed an order of transfer on 3.9.94 posting the petitioner to Krishnagiri, the petitioner, by filing O.A.No.4698 of 1994 before the Tamil Nadu Administrative Tribunal, obtained an order of stay.
When the Tribunal, in its order dated 12.9.94, had directed the respondents to keep the order of transfer in abeyance by giving liberty to the fiRs.respondent to pass appropriate orders for effecting transfer from one region to another region, the respondents have not issued any posting order till he was issued with the posting order only on 11.7.96.
Even though he was issued with the posting order dated 11.7.96, the petitioner joined duty on the next day i.e., 12.7.96.
Subsequently, he also visited with the charge memo containing two charges, one for unauthorised absence and another for not handing over charge.
However, the disciplinary authority found him not guilty in respect of charge no.1.
In respect of charge no.2, though he was imposed with a lighter punishment of 'Censure', the question of refusing salary for the period for which he was not issued with any posting order is absolutely unfair and unjust.
Further, out of 680 days, when the petitioner had availed earned leave for 180 days, the petitioner is no doubt entitled to receive the salary for 500 days for two reasons.
Firstly, when the Tribunal disposed off the petitioner's application in O.A.No.4698 of 1994 holding that the transfer order dated 3.9.94 passed by the Regional Deputy Director of Sericulture, Madurai should be kept in abeyance till the competent authority viz., the fiRs.respondent passed an order, unfortunately, the posting order was issued to the petitioner only on 11.7.96.
Therefore, unless the posting order is issued to the petitioner, the respondents cannot proceed against the petitioner for unauthorised absence.
Secondly, even that charge of unauthorised absence was also found against the department.
Therefore, this Court has no hesitation to hold that the petitioner is entitled to receive the salary for 500 days.
For the aforesaid reasons, the impugned order so far as the denial of salary for the period of 500 days from 28.2.95 to 11.7.96 is concerned will fall to ground, hence, the same is set aside and the respondents are directed to pay the salary to the petitioner for the aforesaid period of 500 days within a period of six weeks from the date of receipt of a copy of this order.
The writ petition stands allowed.
No costs.
ss To 1.
The Commissioner/Director Department of Sericulture Bakus Complex Anaimedu Salem 2.
The Assistant Director of Sericulture (Regular) Thinnoor S.O., Hosur Krishnagiri District