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Dinesh Singh v. Union Of India Thru' Secy. Ministry Of Tele-Comm. & Ors. - WRIT - A No. 19085 of 2003  RD-AH 8633 (8 May 2007)
Court No. 29
Reserved on 12.4.2007
Delivered on 8.5.2007
Civil Misc. Writ Petition No. 19085 of 2003
Union of India & others
Hon'ble Anjani Kumar, J.
Hon'ble Sudhir Agarwal, J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondents 2, 3 and 4 to reinstate him in service as Junior Engineer (now designated as Junior Telecom Officer) and to give all benefits of continuity of service including arrears of salary with effect from 29.11.1984 after regularizing his medical leave from 30.11.1984 to 29.12.1984 and also interest at the rate of 18%.
The facts, in brief, as borne out from the record are that the petitioner was appointed as Junior Engineer on 21.3.1978 under Divisional Engineer, Telecom, Microwave (Project) on temporary basis under CCA/CCS (Temporary Service) Rules, 1965. Subsequently, he was conferred quasi permanent status vide order dated 6.11.1981 passed by the Deputy General Manager, Telecom, U.P. Circle, Lucknow. By order dated 15.9.1984 of Director, Telecom (N) Lucknow, the petitioner was transferred to Deoband Interstices Station under Micorwave project Kanpur and was relieved with effect from 30.11.1984 (afternoon). The petitioner applied for advance TA/DA and a sum of Rs. 5,184/- was also sanctioned and paid to him but he did not join at the place of transfer, and, on the other hand, proceeded on medical leave from 30.11.1984 to 29.12.1984. He submitted a joining report to the Divisional Engineer, Microwave Project, Kanpur in January 1985 but it was not accepted. Vide letter dated 6.1.1985 he was informed that his application dated 18.9.1984 for medical leave is being returned with so as to sent the same to Director (Maintenance) since he has been transferred from Microwave Project Kanpur to other place. The petitioner challenged the order of transfer by filing original suit in the Court of Munsif City, Kanpur which was transferred under Section 29 of the Administrative Tribunal Act, 1985 to the Central Administrative Tribunal, Allahabad and was registered as TA No. 1096 of 86 and was dismissed vide judgment dated 19.2.1988. In the meantime, since the petitioner had not joined at the place of transfer, consequently the respondents had to make another arrangement and vide order dated 1.12.1984 one Sitaram yadav, a Junior Engineer was posted and the order dated 15.9.1984 was cancelled. It appears that during this entire period, the petitioner remained out of office and did not render any duty at all. Subsequently, he claims to have made a representation dated 29.2.1988 addressed to the General Manager (Telecom), U.P. Circle, Lucknow requesting that he is ready to join and may be allowed to resume duty at any place but no action was taken thereon. The petitioner approached Tribunal in O.A. No. 1336 of 1995 which has been dismissed vide judgment dated 3.2.2003 on the ground that the Department of Communication has been converted in to a Corporation known as Bharat Sanchar Nigam Ltd. and since the newly created body is not notified under 1985 Act, therefore, the Tribunal has no jurisdiction. The petitioner thus has filed this writ petition.
The respondents nos. 1 to 4 have filed a counter affidavit stating that he was transferred from Northern Telecom Project to Director, Telecom (Maintenance) Lucknow vide General Manager (Telecom) U.P. Circle Lucknow vide order dated 31.8.1984 and posted at Deoband. In order to join at Deoband he was relieved on 30.11.1984 and he was also paid TA advance as per his requirement but neither he joined at the place of transfer nor gave any information to the Northern Telecom Authorities under whom he was transferred and relieved. He was repeatedly advised to contact the said authorities but he failed to do so. Further though he challenged the order of transfer but his claim was rejected by the Tribunal on 19.2.1988 and during this entire period he did not join at any place and remained unauthorizedly absent. He illegally absconded from duty and therefore is liable to be proceeded departmentally since despite of advice, he has not contacted the competent authority, i.e., Director (Telecom) (Maintenance), Lucknow till date who is the appropriate administrative authority in this matter to take a decision.
Learned counsel for the petitoner vehemently contended that from 30.11.1984 to 29.12.1984 though the petitioner remained absent but from the record it is evident that after dismissal of TA No. 1096 of 1986 he made representation dated 29.2.1988 to the General Manager (Telecom), U.P. Circle Lucknow requesting him to allow him to join at any place and that he shall abide by the order but no order was issued by the said authority. It is further contended that it is not the case of the respondents that the petitioner at any point of time has been dismissed or terminated in accordance with law and, therefore it was incumbent upon the respondents to allow him to join at any place and to pay salary for the period he has not been permitted to join despite his several representations.
We have heard learned counsel for the parties and perused the record. It is evident that the petitioner is a quasi permanent employee in the Telecommunication Department of the Government of India. It is also evident that he did not comply with the valid order of transfer and remain absent. There is nothing on record to show that his leave was ever sanctioned by the competent authority. However, we also do find that after dismissal of his case by the Tribunal vide judgment dated 19.2.1988, the petitioner sent a representation dated 29.2.1988 to the General Manager (Telecom), U.P. Circle Lucknow requesting that he may be allowed to join at any place and he shall abide by such order but no order of posting was issued by the General Manager. On the contrary, a letter was issued by the office of the Chief General Manager on 2.9.1994 advising the petitioner to correspond with Director (Telecom), Maintenance, Lucknow or COMT U.P. Circle Lucknow. The petitioner, thereafter sent a letter dated 6.10.1994 to the Chief General Manager (Telecom), U.P. Circle, Hazaratganj, Lucknow and a copy thereof was also endorsed to Director (Telecom), Maintenance, Lucknow but it appears that no decision was taken by any of the said authority at any point of time. From the counter affidavit, the respondents have not set up a case that the petitioner has been terminated at any point of time, though it is said that he was unauthorizedly absent and disciplinary action could have been taken since it amounts to a serious misconduct. The fact remain however that there does not appear any action having been taken against the petitioner. The only objection which has been taken by the respondents in the entire counter affidavit is that the petitioner ought to have contacted Director (Telecom) Maintenance, Lucknow, but the petitioner has not approached the said authority.
In this view of the matter, we find it appropriate to dispose of the writ petition with liberty to the petitioner to approach Director (Telecom) Maintenance, Lucknow by making a suitable representation within one month from today and in case, any such representation is made, the said authority shall take appropriate decision in accordance with law within two months thereafter. We make it clear that we have not expressed any opinion on the merits of the issue and it is open to the competent authority to take such decision as may be necessary in the light of the facts and circumstances of the case without being influenced any observation made in this order.
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