1. The applicant while working as Assistant Foreman in the Project office in the Ordnance Factory, Khamaria, Jabalpur, came to know that a proposal made by the Deputy General Manager on 9.11.89 for his transfer to Filling Section No. 3 in the same factory. Alleging that the proposal was malafide and that if the applicant who has neither the training nor the expertise to work in the explosive filling section is posted there, that would be dangerous not only to his life but of others also, the applicant on 15.11.1989 filed O. A. 751/89 before the Bench of the Tribunal seeking to quash the proposal and a direction not to transfer him out of Project office as also some other reliefs. On that date the applicant was not on duty but was allegedly sick and had applied for medical leave with effect from that date. When the application came up for bearing on 17.12.89 as none appeared for the respondent, the application was admitted. The applicant had prayed for an interim order prohibiting the respondents from transferring the applicant from the Project Office, but unfortunately for the applicant, the order passed was "in the mean while, as on today status-quo be maintained" (A4). When the applicant reported for duty on 8.12.89, the applicant was not taken on duty on the ground that only on getting clarification from the Tribunal he could be allowed to perform duty.
The applicant filed a Contempt Petition registered as MA. 251 of 1989 in which a notice was issued to Shri A.K. Kalsy, the Deputy General Manager and others. Under these circumstances on 14.12.89 the respondents pressed that the Tribunal may clarify what was meant by status quo in its order dated 7.12.89. The Tribunal vide its order dated 14.12.89 (A9) clarified as follows : "Status-quo granted on 7.12.89 is not order of status-quo ante but only preserve the physical position as on that date" and ordered that the said status-quo would continue. As the applicant was' not on duty on 7.12.89 on the basis of the clarification, on the respondents did not permit him to join duty and consequently he was not paid pay and allowances. The applicant on 1.2.90 filed a miscellaneous application for a direction to respondents to pay him salary. The Tribunal on 5.2.90 ordered payment of salary of the month of January, 1990 on provisional basis, which was paid. As the applicant was even thereafter taken back to duty and paid salary, the applicant again on 30.4.90 filed M. A. 251 of 90. As the Hon'ble Vice Chairman was away on tour, the Hon'ble Judicial Member sitting single passed an order on the M.A. (A14) directing the respondents to pay the applicant his salary till the Tribunal decides the 0. A. and also to allow the applicant to join duty in the Project Office till the disposal of the O.A. Though the applicant reported for duty on 5.5.90 and allegedly worked for four days he was prevented from entering the premises w.e.f. 9.5.90. Hence he filed another Contempt Petition M.A. 131 of 90 on 11.5.90 after the Hon'ble Vice Chairman returned from tour, the matter as also the Contempt Petition were heard. The Contempt Petition was dismissed. In the note sheet of the O.A. it was ordered that the order dated 4.5.90 was modified, that the status-quo ordered on 7.12.89 as explained on 14.12.89 would continue and that the respondent would continue paying the salary of the applicant till order is passed in the O.A. As the pay of the applicant was not paid on 16.5.90, the applicant filed another Contempt Petition on 16.5.90--M.A. 139/90 which is pending. The argument in the O.A. was heard by the Bench on 5.2.90 and order was to be pronounced on 22.2.90. However the final order in the O.A. was passed rejecting the applicant's prayer for a direction to the respondent to transfer him only on 29.5.1991, more than one year and 3 months after the argument was closed (A18). Though a copy of the order was received by the applicant on 25.6.91, when he received a telegram on 27.7,91 he returned from his native place and joined duty on 22.8.91. The applicant had also sent a leave application for leave from 1.7.91 to 21.8.91. Though the applicant joined duty on 22.8.91, the respondents refused to pay his salary. The applicant was served with two letters dated 10.10.91 and 21.10.91. The applicant was by letter dated 10.10.91 and 21.10.91 (A33 and A34) directed to deposit Rs. 48646.75 as excess pay as he was absent from 15.11.89 till 21.8.91 and payment had been made during the period and that the amount if not deposited it would be recovered from his pay. Aggrieved by that the applicant has filed this application. According to the applicant the status-quo as on 7.12.89 was that he had not been relieved from Project Office and as the respondent prevented the applicant from performing duties during this period, the applicant was entitled to the pay and allowances and therefore the respondents are not entitled to recover the money paid as salary during the period. The applicant has sought the following reliefs : "(i) That by issuance of a writ in the nature of mandamus, the Hon.
Tribunal be pleased to command the respondents to decide the leave application of the petitioner from 15.11.89 to 7.12.89 and from 1.7.91 to 21.8.91 at the earliest.
(ii) That by issuance of a writ in the nature of mandamus, the Hon.
Tribunal be pleased to command the respondents to release the salary of the petitioner from June 1991 immediately and command them to pay to the petitioner his salary for the subsequent months hereinafter.
(iii) That by issuance of a writ in the nature certiorari, the commands issued by the respondents by letters dated 21.9.91 and 3.10.91 and the letters themselves may please be quashed.
(iv) Any other writ, direction or order, as may be deemed necessary in the circumstances of the case, may also be issued together with awarding of costs of this petition." 2. The respondents contest this application. They have contended that as the applicant was absent from duty from 15.11.89 tilt he joined duty on 22.8.91 and as salary was paid to the applicant during the pendency of the application, the overpayment has got to be recovered from his pay after he joined duty and that was why the pay was withheld. They started paying to the applicant his salary after making the deduction after the Tribunal on 6.2.92 passed an order, the applicant's absence has not been directed to be regularised by the Tribunal as duty in its order in O.A. 751 of 89 and therefore the applicant has to apply for leave from 15.11.89 till 22.8.91, contend the respondents. They have further contended that even after the disposal of O.A. 751/89, the applicant did not report for duty till 22.8.1991 and that disciplinary proceedings against him was going on for unauthorised absence. The respondent pray that the O.A. may be dismissed.
3. Sri Tiwari, the learned counsel of the applicant argued that it is absolutely unjust and uncharitable to deny the applicant salary for a period extending to nearly two years as he was kept out of service for no fault of his. He argued that the interim order which the applicant sought was a stay of his transfer and not a status-quo of physical position and therefore the applicant cannot be deprived of his right to work and wages for that period. His position should not have been worse that refusal to grant any interim order in which case he could have joined even in the Filling Section. He however argued that as the applicant's life and lives of others in the Filling Section would have been in danger, had he been compelled to join there and therefore the respondents are bound to treat the period between 7.12.89 till 30.6.91 as duty and grant leave for the period between 15.11.89 to 7.12.89 and from 1.7.91 to 21.8.91. Learned counsel of the respondents argued that as the Tribunal had in its order dated 14.12.89 clarified that the order of status-quo of 7.12.89 meant not restoration of status-quo ante bui only preservation of actual physical position as on 7.12.89, the applicant who was not on duty from 15.11.89 and as his leave had not been granted could be taken back as the status-quo as on 7.12.89 was that he was not only not on duty but also transferred out of Project Office. Though the Hon'ble Judicial Member on 4.5.90 directed that the applicant be provisionally permitted to join duty in Project Office, this order was modified by the Division Bench by its order dated 11.5.90 (A16) directing that the status-quo as on 7.12.89 alone is to be maintained and therefore the respondents have no option but to recover the salary paid to the applicant for the period he has not worked, argued the learned counsel.
4. After going through the pleadings and documents and hearing the learned counsel on either side, we find that this is a case where the applicant had to pay a very heavy price for his unsuccessful litigation--O.A. 751/89. Even if his prayer for interim relief was not granted probably the applicant would not have suffered so much detriment. But, can the applicant be granted the reliefs which he has claimed in this application? On a consideration of the facts and circumstances emerging from the record of the case, the answer can only be in the negative through we feel highly uncomfortable to note that the Tribunal also has contributed to the loss as the case was after completion of argument pending for final disposal for more than a year.
In the light of the clarification given to the interim order dated 7.12.89 by the Bench in its order dated 14.12.89 as also on 11.5.90, we are of the considered view that the respondents cannot be faulted in their action in recovering the pay and allowances provisionally paid to the applicant during the pendency of the case at the direction of the Tribunal, though the applicant has not been working. As the applicant did not work, no payment from public fund can be made to the applicant for this period. The applicant also has to apply for leave from 15.11.89 till he joined duty on 22.8.91. Even though the applicant received a copy of the judgment in June 1981, he did not report for duty at F3 Section immediately- He wanted for instruction from the respondents, He need not have had to wait because once the application was dismissed, he had to report for duty at F3 Section forthwith. For the loss sustained by the applicant, the applicant has to curse his own fate only. When the Tribunal clarified on 14.12.89 that the status-quo meant only preservation of physical position as on 7.12.89, the applicant could have prayed for vacating the status-quo stating that he no more needed an interim order and would join F3 Section subject to the outcome of this application. Atleast when the Tribunal passed the order on 11.5.90 (A16) reiterating the position the applicant could have done so. The case of the applicant that his joining F3 would have endangered not only his life, but lives of others also does not appear to be convincing because the applicant himself joined the F3 Section on 22.8.91 when his case for retention at Project Office was rejected by the Tribunal in its judgment in O.A. 751/89. Further it cannot be held that the General Manager of the Ordnance Factory who was respondent No.2 in O.A. 751/89 would have insisted on the applicant's posting in F3 Section if that would be a potential danger to the lives of the Factory workers and might cause enormous loss to the Factory. So the applicant also has contributed to the unfortunate resultant loss to him.
5. In the light of what is stated above, we do not find our way to grant to the applicant any relief, though we feel sad about the whole episode. From the reply statement, it is seen that the ghost of the past was still haunting the applicant, i.e. a disciplinary proceedings against him for unauthorised absence was pending. However, we feel relieved to hear from the counsel on either side that the proceedings has been dropped and the applicant has been given a transfer. In fine, in the conspectus of the facts and circumstances, we dismiss the application leaving the parties to bear their own costs.