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| Engineer’s unauthorized absence for 9 years | | HC allows LPA with the direction to respondents | | EARLY TIMES REPORT
JAMMU, Nov: 27 (JNF):- Appellant Zahoor Hussain Zargar working as Assistant Engineer (Mechanical), was granted two years’ Extra Ordinary Leave with effect from May 25, 1981 to May 24, 1983. However, he did not join duty on expiry of the period of Leave. He submitted his Joining Report on June 9, 1992, i.e., after a period of more than nine years. The respondents did not accept the joining report. Aggrieved he filed petition in the High Court, the Single Judge of Court, allowed the Writ Petition on July 15, 1994, directing respondents and quashed the Communication No. EC-1-5/10218 dated 14 Sep. 1992, which is held as illegal, unconstitutional and bad in law. Consequently, directed the respondents to accept the joining report of the petitioner with effect from June 9, 1992 and further directed them to suitably post him as Asstt. Executive Engineer and pay him all the dues and other allowances as admissible under rules. He is also held entitled to all the consequential benefits.
Pursuant to the liberty allowed by the Court, the State-respondents, held an enquiry into the matter, And after hearing the appellant, treated his “unauthorized absence” from May 25, 1983 to June 8, 1992 as “Dies-non” vide Government Order dated March 28, 2000. The functionaries of the State Government, however, appear to have granted service benefits to the appellant for the period, treated as “Dies-non”, inter alia, placing him as Incharge Executive Engineer vide Government Order dated February 28, 2003 and Incharge Superintending Engineer vide Government Order dated September 22, 2006. In the year 2009 relying on SRO 514 of November 22, 1999, the Government, vide its Order dated August 31, 2009, directed that the appellant’s unauthorized period of absence with effect from 25.02.1983 to 08.06.1992, treated as “Dies-non”, be given effect to It will not qualify for any pay and allowance; It will not count for pension; and not count for increments; The Seniority of Shri Zahoor Hussain Zargar fixed at Serial No. 79 in the Final Seniority List of Assistant Executive Engineers (Mechanical), and is re-fixed at Serial No. below Shri H.K.Chopra and Mr. Zahoor Hussain Zargar be deemed to have been placed as I/C Superintending Engineer (Mechanical) with effect from May 31, 2007 instead of June 22, 2006 vide Government Order No dated May 31, 2007, The concerned Drawing & Disbursing Officer shall re-fix the salary of the officer from June 9, 1992 and recover in lump sum the excess pay drawn by the officer, Aggrieved by the order appellant filed petition in the State High Court which was dismissed by the Single Judge and challenged the same in shape of LPA.
A Division Bench of J&K High Court Jammu Wing comprising Justice JP Singh and Justice Hasnain Massodi after hearing Advocate RA JAN appearing for the appellant whereas Deputy AG Mrs. Neeru Goswami for the State, gone through the facts of case and also gone through judgment of Single Judge. The Judgment written by Justice JP Singh for the Division Bench observed that while considering appellant’s case as to whether or not he was entitled to those benefits of promotion, seniority, salary etc., which had been allowed to him and
whether the period of his absence was to count for pension and increments, resort was required to be had to the provisions of SRO 80 of 1972 and not to the SROs which came into force subsequent to appellant’s rejoining the Department.
The respondents had thus erred in applying the provisions of SRO 514 of 1999 to the appellant’s case. The view taken by the Single Judge that SRO 514 of November 22, 1999 was in force when the Government Order No. 91-PW of 2000 dated march 28, 2000 was passed and the appellant’s case was governed by the conditions contained therein, may not thus be sustainable for the simple reason that penalty greater than that which might have been inflicted under the Statutes in force at the time of incurring the liability, can not be imposed under law.
In the approved for reporting judgment, the Division Bench further observed that The appellant is, found to have been erroneously dealt with by the respondents in terms of SRO 514 of 1999 vide Government Order dated August 31, 2009 denying him the benefits available to him regarding the period countable for pension, and increments, as indicated in SRO 80 of 1972. The order impugned in the appellant’s Writ Petition, proceeding on the premise of SRO 514 of 1999, which was not applicable to his case, can not thus be sustained. In view of what has been said above, the State Government is required to recast the order impugned in terms of the provisions of SRO 80 of 1972. with these observations DB set-aside the judgment of Single dated December 3, 2009 of the learned Single Judge and Government Order dated August 31, 2009 directed to pass such appropriate and consequential orders afresh, as warranted under law, keeping in view the provisions of SRO 80 of 1972 and after affording opportunity of hearing to the appellant. This Appeal, therefore, succeeds and is, accordingly, allowed.
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