The Patna High Court allowed an appeal filed by the State of Bihar against a single judge's order granting salary recovery to a dismissed government employee. The court held that the writ petitioner never joined duty after transfer and was not entitled to salary.
Appeal allowed; impugned order set aside; writ petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1153 of 2012
In
Civil Writ Jurisdiction Case No.7152 of 2005
With
Interlocutory Application No.4999 of 2012 And
Interlocutory Application No.5000 of 2012
In
Letters Patent Appeal No.1153 of 2012
======================================================
.... .... Respondents-Appellant/s
Versus
Krishna Kumar, son of Late Moti Lal, Resident of Village- Aloni, P.S.Garkha, District- Saran
.... ....Petitioner- Respondent/s
====================================================== Appearance :
For the Appellant/s : Mr. Amit Kumar Singh, Advocate For the Respondent/s : Dr. Uma Shankar Prasad, Senior Advocate
Mr. Kamala Kant Tiwary, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
And
HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
Patna High Court LPA No.1153 of 2012 (4) dt.11-07-2014
2/3
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
Learned advocate Mr. Amit Kumar Singh is persistently absent.
Interlocutory Application No.4999 of 2012.
Delay of 280 days occurred in filing the Letters Patent Appeal is condoned.
Interlocutory Application stands disposed of.
Letters Patent Appeal No.1153 of 2012
This Appeal under Clause 10 of the Letters Patent has been preferred by the respondent State of Bihar against the order dated 13th May 2011 made by the learned single Judge in CWJC No.7152 of 2005.
The writ petitioner, an Accounts Clerk in the office of the Executive Engineer, Tubewell Division, Chapra, has approached this Court under Article 226 of the Constitution for recovery of salary for the period from 1st November 2002 to 16th October 2003. According to the petitioner, in the month of November 2002 he was transferred from Chapra to Begusarai. However, in absence of post sanctioned under the non-plan head, the petitioner was not allowed to join duty at Begusarai. He was, therefore, entitled to salary for the said period.
The petition was contested by the State
Government.
On perusal of the records, it appears that a disciplinary proceeding was initiated against the petitioner for misappropriation of the Government funds. On the guilt being proved, under order dated 5th October 2005, he has been dismissed from service.
Patna High Court LPA No.1153 of 2012 (4) dt.11-07-2014
3/3
Learned advocate Mr. Kamala Kant Tiwary has appeared for the respondent-writ petitioner. He has submitted that in absence of post sanctioned under the non-plan head, the petitioner was not allowed to join duty at Begusarai. In support thereof he has relied upon the communication dated 4th December 2002 sent by the Executive Engineer.
There is nothing on the record to suggest that the writ petitioner did report for duty at Begusarai and that he was not allowed to join duty as alleged. On the contrary, it appears that on his transfer to Begusarai the petitioner did not join the duty. He was, therefore, not paid salary for the said period.
We have perused the aforesaid communication dated 4th December 2002. We are of the opinion that the said communication also does not support the claim of the writ petitioner. The learned single Judge has wrongly held that the petitioner was deprived of posting during the period in question.
For the aforesaid reasons, we allow this Appeal. Impugned order dated 13th May 2011 made by the learned single Judge in CWJC No.7152 of 2005 is set aside. CWJC No.7152 of 2005 is dismissed.
Interlocutory Application stands disposed of.
(R.M. Doshit, CJ)
(Ashwani Kumar Singh, J)
Sunil/-
U
3 issues framed by the court
Whether the Single Judge was justified in granting salary recovery to a government employee who never joined duty after transfer due to lack of sanctioned post.
Whether the writ petitioner was entitled to salary for the period of absence after being transferred to Begusarai without joining duty.
Whether the communication dated 4th December 2002 supports the claim that the petitioner was deprived of posting.
2 provisions across 2 enactments
The State of Bihar
Krishna Kumar
R.M. Doshit
Ashwani Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
