Judgment:
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPASW No. 47 OF 201.Bishan Singh Petitioners State of J&K and ors Respondent !Mr. O. P. Thakur, Advocate ^Mr. Ravinder Sharma, AAG Honble Mr. Justice M. M. Kumar, Chief Justice Honble Mr. Justice Hasnain Massodi, Judge Date:
31. 01.2013 :
: M. M. Kumar, CJ 1.The instant appeal under Clause 12 of the Letters Patent is directed against judgment and order dated 01.07.2009 rendered by the learned Single Judge of this Court, rejecting the claim made by the appellantpetitioner for release of salary with effect from 01.10.1992 to 17.07.1996. The basis of claim is that for the aforesaid period the appellant-petitioner is deemed to have performed duties because he had submitted application for voluntary retirement having rendered 28 years of service. It was on account of apathy on the part of the respondent-State that the 2 appellant-petitioner was compelled to rejoin on 18.07.1996. The learned Single Judge has recorded a categorical finding that, in fact, the appellant-petitioner did not perform any duty and remained unauthorizedly absent from 01.10.1992 to 17.07.1996. In that regard, detailed reference has been made to Annexure-A, which, in fact, is an application filed by the appellantpetitioner before the Headmaster of Government High School, Soomber (Doda) for release of his salary with effect from 01.10.1992 to 17.07.1996. In the aforesaid application, he claimed to have applied for voluntary retirement in the year 1992. The appellant-petitioner has further claimed that when he did not receive any order from the higher authorities, he joined his service on 18.07.1996. The observations of the learned Single Judge concluding that the appellant-petitioner did not perform his duties from 01.10.1992 to 17.07.1996 are discernible from the following para which reads thus:- On the back of the application, there is a note of Headmaster, Government High School, Soomber (Doda), vide which he has referred the application to the Chief Education Officer concerned for considering the case of thet petitioner for release of his salary for the period 1.10.1992 to 17.07.1996 as the petitioner has remained in the school for the said period. As to on which date, the application of the petitioner was referred to the Chief Education Officer, concerned, is not apparent from the note of the then Headmaster, Government High School, Soomber, Doda. As noticed above, the 3 respondents in their counter have specifically pleaded that petitioner had not performed any duty and had remained absent from duty anauthorizedly w.e.f. 1.10.1992 to 17.7.1996. Therefore, as to how the case of the petitioner was recommended to the higher authority for release of salary for the above period by the then Headmaster is not apparent from the record. If the petitioner had been performing his duties in the school where he was posted and the Headmaster concerned was aware of this fact, then, the would not have referred the case of the petitioner for release of salary for the above period and the salary of the petitioner would have been drawn automatically and paid to him as was being done in favour of other officers posted in the above school. Therefore, the only conclusion which can be drawn from the perusal of Anexure A is that the petitioner, infact, had not performed his duties for the disputed period. 2. The learned Single Judge also referred to a letter from the record being letter no. 139 H.S.S dated 22.02.1997, sent by the then Headmaster, Government High School, Soomber (Doda) to the Chief Education Officer. The letter specifically records that the appellant-petitioner had not performed any duty in any school from October 01, 1992 to July 17, 1996 and had joined duties only on 18.07.1996. In the aforesaid application, the appellant-petitioner has himself stated that he performed duties at Government High School Soomber (Doda) upto September, 1992 and being a member of Hindu family he faced threat by the militants. Therefore, he had no option but to leave the place on account of fear and frustration. When the 4 peace was restored he joined on 18.07.1996. The appellant-petitioner has asserted that gap between 01.10.1992 to 17.07.1996 may be treated as on duty. From the aforesaid letter, it is also concluded by the learned Single Judge that principle of no work no pay would apply in his case as the appellant-petitioner did not work during the relevant period.
3. We have heard Mr. O. P. Thakur, learned counsel for the appellant at a considerable length. Mr. Thakur has vehemently argued that once the appellantpetitioner had filed an application for voluntary retirement after rendering 28 years of unblemished service then on the expiry of three months, he should have been deemed to be relieved of his duties. In that regard, he has drawn our attention to Article 230 of the J&K Civil Service Regulations, 1956. Mr. Thakur, has also placed reliance on a Division Bench judgment of this Court rendered in the case of Chaman Lal & ors. v. Kendriya Vidyalaya Sangathan and ors. 2007 (1) SLJ 151.
4. Mr. Ravinder Sharma, learned Additional Advocate General has argued that the appellantpetitioner never applied for voluntary retirement. According to the learned State counsel, a false plea has 5 been set up only to derive certain benefits and avoid initiation of any disciplinary action. Mr. Sharma, has maintained that on account of fear and frustration, the appellant-petitioner left the job and, in fact, was absent from duty for about four years without any authorization. The State has taken a lenient view and has allowed him to join and then superannuate.
5. Having heard the learned counsel for the parties and perusing the paper book with their able assistance, we are of the considered view that the instant appeal does not merit admission and is, thus, liable to be dismissed. It has come on record that the appellant-petitioner himself deserted his duties on account of threat of militants. The fear and frustration resulted in deserting the job. It was after 04 years that the appellant-petitioner rejoined his duties on 18.07.1996 and he superannuated from the service in October, 2002. Had the appellant-petitioner filed an application for voluntary retirement in the year 1992 then the proper course for him was to pursue the same and it should have been taken to its logical end. He could not have abandoned his claim by rejoining duties on 18.07.1996. In fact, it shows that he was never interested in seeking voluntary retirement nor he had 6 filed any application as has been correctly recorded by the learned Single Judge. The appeal is wholly without merit and the view taken by the learned Single Judge does not suffer from any legal infirmity warranting interference of this Court.
6. The Division Bench judgment in Chaman Lals case (supra) on which reliance has been placed by Mr. Thakur would not require any serious consideration because in that case an employee had sought premature retirement and he was treated to have retired from the date when the offer was made for voluntary/premature retirement by him without any intimation by the department. In the present case, it is doubtful whether the appellant-petitioner had ever applied for premature retirement. Moreover, his request for premature retirement came to an end on July 18, 1996. It could not have been accepted in the absence of any offer for voluntary retirement thereafter. The facts and the law applicable are entirely different and, therefore, the judgment of Chaman Lals case (supra) would not be applicable to the facts of the present case”
7. For the reasons aforementioned this appeal does not warrant admission and same is accordingly dismissed. (Hasnain Massodi) (M. M. Kumar) Judge Chief Justice Jammu, 31.01.2013 Parshant