MANOJ KUMAR V KUMARE Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a second round of litigation. Earlier the applicant had moved OA. No. 912/99 challenging his transfer from Ambernath to Nagpur Division. He was served with a major penalty chargesheet on 7.4.1999 and pending the enquiry in the charges levelled against him, he was transferred from Ambernath to Nagpur Division. The Tribunal while quashing and setting aside the said transfer vide order dated 10.2.2000 observed that this would not preclude the respondents to transfer the applicant at another Station on the Mumbai Division if so desired in the interest of administration. The grievance of the applicant in this OA is that he has not been paid salary from 13.9.1999 to 13.2.2001 even though the transfer order was quashed and set aside by the Tribunal. According to him, even after quashing and setting aside the transfer order by the Tribunal and upheld by the Hon'ble High Court, the applicant was not given the posting and was not allowed to resume the duties. Since he was not allowed to resume the duties, the applicant cannot be blamed for not joining the duties at the transfer place. According to him, he was out of office for not any reason attributed to him but because of illegal and arbitrary action in not allowing him to resume duties. He is, therefore, entitled to get the full wages for the said period and the respondents are duty bound to pay him the same. He had submitted representations to the respondents on 21.2.2001 and 14.3.2001 but since the representations have not yielded any result, he has moved this OA.

(2.) The respondents in the reply have contended inter alia that the OA. is barred by limitation and that the applicant had deliberately not joined the duty at the transferred place. As such, he is not entitled to claim any wages. It is also contended that the applicant had challenged the order of transfer dated 5.5.1999 praying only for the quashing and setting aside the transfer order but no prayer was made for the wages for the period subsequent to his relief from Ambernath on 30.9.1999. Since he had failed to seek a consequential relief of the wages, he can not now be heard to claim the same by way of separate proceedings. According to them, the present OA. suffers from delay and laches and also is barred on the principles of Order II Rule 2 of CPC. It is also contended by the respondents that having failed to obtain interim orders in OA. No. 912/99 to continue to work at Ambernath and having failed to join duty in the Nagpur Division, the applicant can not now claim the entitlement to the salary for the period from 30.9.1999 to 13.2.2001. In fact, the, applicant had not intimated his whereabouts at Ambernath station nor reported to DRM, CST, Mumbai for receiving fresh posting order. A fresh transfer order was issued by letter dated 9.2.2001 posting him to Belapur and thereafter the applicant had resumed at Belapur. The applicant had not worked from 30.9.1999 to 13.2.2001 at any of the places and thus he was not entitled to claim the wages for that period. They have prayed that the OA. be dismissed with costs.

(3.) THE applicant has also moved M.P. No. 319/2002 for condoning the delay in filing this OA. and considering the position that the OA. concerns non payment of wages for the period from 30.9.1999 to 13.2.2001. We condone the delay in filing the OA. THE M.P. therefore stands allowed.