THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.24753 of 2011 Dated:06.09.2011 Between: The State of Andhra Pradesh, Represented by its Secretary, Higher Education Department, Secretariat, Hyderabad, And others. … Petition And A.Satyanarayana, And others. ... Responde THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.24753 of 2011 ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) The writ petition is against the order dated 18.08.2010 in O.A.No. of 2008 whereby and whereunder while disposing of the Original Applica filed by the first respondent herein (hereafter called, the applicant) Andhra Pradesh Administrative Tribunal set aside the proceedings of second petitioner (hereafter called, the second respondent) da 18.11.2005 and directed the petitioners (hereafter called, the responde to treat the period of absence from 10.09.2001 to 04.06.2002 as leave the basis of the leave application already made by the applicant and extend the consequential benefits. The applicant was regularized as Physical Director in Governm Junior College. Before that he had a stint of temporary service in vari private/Government Junior Colleges. Be that as it is, on a complaint by Director General of Anti Corruption Bureau, the first respondent transfer the applicant on 04.09.2001 from M.G.Junior College, Narayanapuram Government Junior College, Maredumilli. He was relieved on 10.09.20 The transfer order was assailed in W.P.No.19354 of 2001. This Co directed the respondents to dispose of the appeal filed by the applicant 12.09.2001 within a period of six weeks and till then status quo w ordered. The applicant, however, did not join at Maredumilli. The app filed by him was disposed of by the first respondent with a direction to second respondent to post him at a far off place, except Pentapu Against the said Government Order, being Memo dated 29.04.2002, applicant filed W.P.No.9328 of 2002. This Court passed interim orders 14.05.2002 directing that he be posted to a nearer place. In obedie thereto, the first respondent posted him as Physical Director Government Junior College, Tanuku. He joined the duty on 05.06.2002. In 2003 the applicant filed W.P.No.6191 of 2003 seeking a direc to the respondents for payment of salary from 10.09.2001 to 04.06.2002 well as release of increments. The writ petition was dismissed withdrawn. In the meanwhile, the applicant also filed W.P.No.13807 2004 which was disposed of by this Court on 05.08.2004 directing the f respondent therein to take necessary steps for release of increme arrears of salary and other benefits to the applicant. The Government t filed Review W.P.M.P.No.21502 of 2005 and raised the question of lack initial jurisdiction, as the applicant is a Government employee. The p was accepted, and by order dated 25.07.2005 this Court disposed of same giving liberty to the applicant to seek redressal before the And Pradesh Administrative Tribunal and directed that its order da 05.08.2004 be ignored. Thereafter, the second respondent considered applicant’s representation for release of salary and increments and pas orders on 18.11.2005 directing that the period of absence from 10.09.2 to 04.06.2002 be treated as dies-non as per Note (1) under FR 18 read w Rule 5-A of the Andhra Pradesh Leave Rules, 1933 (Leave Rules). applicant then approached the Tribunal by filing O.A.No.272 of 2008, i alia, seeking a direction to the respondents to grant leave for the pe abovementioned. He contended that he could not join at Maredumilli Ju College as his appeal was pending before the Government and in view the pendency of the proceedings before this Court. The learned Tribu having regard to the fact that the applicant was willing to apply leave for said period, disposed of the Original Application in the manner indica hereinabove. The Government Pleader for Services – I would urge that the lear Tribunal was in error in directing the period to be treated as absence leave when the application for leave was made subsequently. He wo also place strong reliance on Note (1) of Rule 5-A of the Leave Rules. The learned Tribunal considered the factual background in det They have also noticed the fact that immediately after transfer f Narayanapuram to Maredumilli he sent an appeal to the Government wh is permissible under law. After the appeal was rejected directing second respondent to post him to a far off place, he immedia approached this Court, and the writ petition was pending for some tim Ultimately, in obedience to the orders of this Court, he was posted Tanuku, where he joined. In the process he was virtually not on duty fo period of about nine months. Can this period be treated as willful abse from duty for the purpose of Rule 5-A Note (1) of the Leave Rules, wh reads as under. 5-A. Unless the Government in view of the exceptional circumstances of the case otherwise determine, no Government servant shall be granted leave of any kind for a continuous period exceeding five years. Note 1 :- Willful absence from duty not covered by the grant of any leave will be treated as ‘dies-non’ for all purposes viz., increment, leave and pension. The question of treating the period of absence as dies-non for purposes viz., increments, leave and pension would arise only when th is a finding recorded by the competent authority that the Governm servant “willfully” absented from duty. The term “willful” has defi meaning and connotation. The meaning and purport of the term “willful” considered by the Supreme Court in S.Sundaram Pillai R.Pattabhiraman[1] is as follows. Before, however, going into this question further, let us find out the real meaning and content of the word ‘wilful’ or the words ‘wilful default’. In the book ‘A Dictionary of Law’ by L.B.Curzon, at page 361 the words ‘wilful’ and ‘wilful default’ have been defined thus: ‘Wilful’ – Deliberate conduct of a person who is a free agent, knows what he is doing and intends to do what he is doing. ‘Wilful default’ – Either a consciousness of negligence or breach of duty, or a recklessness in the performance of a duty. In other words, ‘wilful default’ would mean a deliberate and intentional default knowing full well the legal consequences thereof. In “Words and Phrases”, Volume 11A (Permanent Edition) at page 268 the word ‘default’ has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something required. In Volume 45 of “Words & Phrases”, the word ‘wilful’ has been very clearly defined thus: ‘Wilful’ – intentional; not incidental or involuntary; - done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, heedlessly or inadvertently; - in common parlance word ‘wilful’ is used in sense of intentional, as distinguished from accidental or involuntary. P.296 – “Wilful” refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary. In Volume III of Webster’s Third New International Dictionary at page 2617, the word ‘wilful’ has been defined thus: “governed by will without yielding to reason or without regard to reason; obstinately or perversely self-willed.” The word ‘default’ has been defined in Vol.I of Webster’s Third New International Dictionary at page 590 thus: “to fail to fulfil a contract or agreement, to accept a responsibility; to fail to meet a financial obligation.” In Black’s Law Dictionary (4th Edn.) at page 1773 the word ‘wilful’ has been defined thus: “Wilfulness” implies an act done intentionally and designedly; a conscious failure to observe care; Conscious; knowing; done with stubborn purpose, but not with malice. The word “reckless” as applied to negligence, is the legal equivalent of “willful” or “Wanton”. Thus, a consensus of the meaning of the words ‘wilful default’ appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above. Therefore, when a person is said to have done something willfu the conscious conduct on the part of the person who is said to have d something willfully should be established. In this case, the sec respondent did not record any finding that he was willfully absent, and are convinced that the applicant could not join the duty at Maredum because his appeal was pending and thereafter he was seeking redres before this Court. If a person wanted to be willfully absented he would have resorted to seeking remedies provided under law. In that view of matter we do not find any reason to interfere with the order of the lear Tribunal. The Writ Petition is, therefore, dismissed without any order as costs. _____________ (V.V.S.RAO ________________ (K.G.SHANKAR 06.09.2011 vs [1] AIR 1985 SC 582