KRISHNA BAITHA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) HEARD counsel for the parties. The petitioner, who is a constable in the Jharkhand Police under the respondent -Government of Jharkhand, seeks quashing of the order contained in Memo No. 05 dated 20.1.2005, Annexure -10, passed by the Superintendent of Police, East Singhbhum, Jamshedpur, respondent no. 5 as well as order dated 5.2.2006, Annexure -13, passed by the appellate authority confirming the original order, whereby the salary of the petitioner from 1.7.2003 to 21.8.2004 has been withheld and has been adjusted against the extraordinary leave, though, according to him he was not found guilty in the departmental proceeding no. 56 of 2004 conducted for alleged charges for not joining at the transferred place of posting in disobedience to the order of transfer. Consequently, the petitioner seeks direction upon the respondents to pay the salary for the said period.

(2.) THE petitioner was working at Jamshedpur in June, 2003 when he was transferred and relieved to join at the transferred place of posting w.e.f. 1.7.2003. He, however, could not join at the transferred place of posting at Ranchi. He further submits that he made an application for stay of transfer on medical ground, which was recommended by the Dy. S.P. (Headquarter -1), Jamshedpur. He continued to work as a Bodyguard to the said Dy.S.P. thereafter. However, he was proceeded against under the memo of charge vide order dated 28.12.2003, issued by the respondent no. 5, Superintendent of Police, Jamshedpur to explain the charges as to why he has not reported at the transferred place of posting after he has been relieved pursuant to the transfer order issued in June, 2003. According to the petitioner, Dy.S.P. had certified that he was working as Bodyguard of the said person and therefore, could not submit his joining at the transferred place of posting, in obedience of order of transfer issued by the Superintendent of Police, Jamshedpur in June, 2003. Enquiry was conducted and according to the petitioner he was exonerated from the said charges vide enquiry report dated 30.9.2004 having not found him guilty. Despite that respondent no. 5 has passed the impugned order withholding his salary and adjusted it against the extraordinary leave for the period 1.7.2003 to 21.8.2004. In order to assail the impugned order, learned counsel for the petitioner has taken a plea that the disciplinary authority has passed the impugned order without giving any reason for differing from the enquiry report which exonerated the petitioner and further no opportunity has been given to file his reply to the same. The impugned order is in the nature of punishment and he had adequate reasons to justify the grounds for not joining at the transferred place of posting, which was considered by the enquiry officer.

(3.) I have heard counsel for the parties at length. It is the case of the petitioner that the petitioner has been exonerated of the charges by the enquiry officer but an order of punishment has been passed. The perusal of the order contained at Annexure -10 dated 20.1.2005, however, does not disclose the same is in the nature of punishment. As a matter of fact after the order of transfer passed in June, 2003, the petitioner was relieved w.e.f. 1.7.2003 by East Singhbhum District Order no. 1292 of 2003, and on his failure to join at the transferred place of posting, the proceedings were initiated against him for coming to a finding relating to a guilt or otherwise of the petitioner. The enquiry officer, however, did not arrive at the finding of guilt. The Superintendent of Police - Respondent no. 5 however found that the petitioner did not submit his joining at the transferred place of posting after being relieved w.e.f. 1.7.2003 and the Superintendent of Police took into account, the directions of the Director General of Police and the Inspector General of Police contained in Memo No. 2009/P dated 25.08.2003 wherein it has been stipulated that if the orders of transfer are not followed to submit joining at the transferred place of posting or there is delay in the submission of joining, the salary for the said period will not be paid to the concerned constable or the police personnel. In the instant case admittedly, the petitioner did not submit his joining at the transferred place of posting for a considerable length of time from 01.07.2003 to 21.08.2004. He did not discharge his duties at the transferred place of posting for the said period. Therefore, the petitioner's salary for the said period has been withheld, but the same has been adjusted against the extraordinary leave available to the petitioner. This order, therefore, does not appear in the nature of the punishment. A person, who does not discharge his duties, cannot claim his salary for the said period. The petitioner admittedly has not served at the transferred place of posting for the said period, therefore, the said period has been adjusted against the extraordinary leave. In these circumstances, the impugned order does not appear in the nature of punishment order neither such a punishment is contemplated under any departmental rules.