IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18331 of 2009 SUSHMA RANI SINHA W/O SHRI KAMLESH SATYAVADI R/O FLAT NO. 243, BLOCK-32, ROAD NO. 10E, RAJENDRA NAGAR, P.S.- KADAMKUAN, DISTT.- PATNA, PRESENTLY FUNCTIONING AS ASSISTANT/CASHIER IN THE HEAD OFFICE OF THE PATNA REGIONAL DEVELOPMENT AUTHORITY (DISSOLVED), PATNA MUNICIPAL CORPORATION, 2ND FLOOR, C-BLOCK, MAURYA LOK COMPLEX, P.S.- KOTWALI, DISTT.- PATNA Versus 1. PATNA REGIONAL DEVELOPMENT AUTHORITY (DISSOLVED) THROUGH IT'S MUNICIPAL COMMISSIONER, PATNA MUNICIPAL CORPORATION, 2ND FLOOR, C-BLOCK, MAURYA LOK COMPLEX, P.S.- KOTWALI, DISTT.- PATNA 2. MUNICIPAL COMMISSIONER, PATNA MUNICIPAL CORPORATION, 2ND FLOOR, C-BLOCK, MAURYA LOK COMPLEX, P.S.- KOTWALI, DISTT.- PATNA 3. CHIEF ACCOUNTS OFFICER, PATNA REGIONAL DEVELOPMENT AUTHORITY (DISSOLVED), 2ND FLOOR, C-BLOCK, MAURYA LOK COMPLEX, P.S.- KOTWALI, DISTT.- PATNA 4. ADDITIONAL COMMISSIONER (ESTABLISHMENT), PATNA MUNICIPAL CORPORATION, BUDHA MARG, P.S.- KOTWALI, DISTT.- PATNA For the Petitioner : M/s H.S. Himkar, A. Kumar, advocates. For the PMC : Mr. Sanjay Prakash Verma, Advocate. ----------- 05. 12.05.2010 Heard learned counsel for the petitioner and the counsel for the Patna Municipal Corporation (hereinafter referred to as the PMC). 2. Petitioner who at the relevant time served as Assistant/Cashier in the head office of the Patna Regional Development Authority (dissolved)(hereinafter referred to as the PRDA), PMC is aggrieved by the office order No.107 bearing Memo No.3159 dated 5.11.2009 passed by the Municipal Commissioner, PMC, Annexure- 3, whereunder she has been placed under suspension for her failure to draw the cheque for payment of salary to the employees of the PRDA for the month of October, 2 2009 in spite of direction of the Municipal Commissioner to draw such cheque and remained under unauthorized absence with effect from 3.11.2009 with further direction to hand over charge to Sri Manwendra Kumar, Assistant, PRDA. She is further aggrieved by the memo of charge drawn in form-(ka) bearing Memo No.3436 dated 5.12.2009, Annexure-8 alleging that she remained under unauthorized absence with effect from 3.11.2009, 4 p.m. and she has not drawn the cheque for payment of salary to the employees for the month of October, 2009. 3. It is submitted on behalf of the petitioner that the suspension order and the memo of charge have been issued and served on the petitioner without appreciating the fact that on 3.11.2009 while she was in office she received telephonic call from her residence that her child is unwell, whereafter she requested the Chief Accounts Officer, PRDA, her Controlling Officer to grant leave for the period 4.11.2009 till 7.11.2009 under her application dated 3.11.2009, which was allowed on 3.11.2009 itself, copy whereof with endorsement of the Chief Accounts Officer is contained in Annexure-1 to this application. It is further submitted that the Controlling Officer has been authorized to grant leave in the light of the office order No.306/89 dated 7.8.1989, Annexure-2, Clause-16 whereof empowers the Chief Accounts Officer 3 to sanction casual leave to the staff working directly under him and as the petitioner was holding the post of cashier she was working directly under the Chief Accounts Officer, who had the authority to grant leave to the petitioner to meet the exigencies of illness of her child. Reliance placed by respondent no.2 over the joint order bearing memo No.1097 dated 2.6.2009, Annexure- D to the counter affidavit that the casual leave application of the petitioner was required to be submitted before the Municipal Commissioner, PMC appears to be misconceived as thereunder the employees of the PMC, Patna Water Board and the Bihar State Water Board have been asked to apply for grant of leave before the Municipal Commissioner, PMC-cum-Managing Director, Bihar State Water Board. Under joint order dated 2.6.2009 the employees of the PRDA has not been asked to obtain casual leave from the Municipal Commissioner and in appreciation of such fact petitioner submitted her casual leave application dated 3.11.2009 before the chief Accounts Officer who allowed the request made therein and in the light of the order of the Chief Accounts Officer sanctioning leave to the petitioner for the period 4.11.2009 till 7.11.2009 petitioner ought not to have been placed under suspension. It is further pointed out that the Chief Accounts Officer having sanctioned the 4 casual leave of the petitioner on 3.11.2009 should have made alternative arrangement for drawing the cheque for payment of salary to the employees. For the failure of the Chief Accounts Officer to make alternative arrangement petitioner cannot be placed under suspension when she had gone on casual leave after obtaining the same from the competent authority to meet the exigencies of the illness of her child. 4. It is further submitted that PRDA was constituted under the Bihar Regional Development Authority Act, 1981(hereinafter referred to as the BRDA Act) which was repealed under the Bihar Municipal Act, 2007(hereinafter referred to as the PMC Act). Sub- Section-(3) of Section-488 of the PMC Act provides that PRDA shall cease to exist with effect from the date the PMC Act came into force i.e. with effect from 5.4.2007 the date on which it was published in the Bihar Gazette(Extraordinary). Sub-Section-(4) of Section-488 of the PMC Act provides that even after cessation/dissolution of the PRDA every employee serving the PRDA on the date of dissolution shall be deemed to have been transferred to and become an employee of the PMC, subject to the scrutiny of the requirement of the PMC assessed by the State Government with such designation as the PMC may determine and hold office by 5 the same tenure, remuneration and the terms and conditions of service as she would have held if the BRDA Act was not repealed. 5. It is submitted on behalf of the petitioner that till date neither the requirement of the PMC has been assessed by the State Government nor the designation of the employees of the PRDA has been re- determined by the PMC, in the circumstances, petitioner has to continue as an employee of the PRDA(dissolved) on the same terms and conditions of service as she would have held if the BRDA Act was not repealed and the impugned orders have been passed dehorse the provisions contained in Sub-Section-(4) of Section-488 of the PMC Act. 6. Counsel for the PMC has opposed the submission. He states that the BRDA Act having been repealed and PRDA having been dissolved, the services of the petitioner has been transferred to the PMC and she has become an employee of the PMC and ought to have applied for grant of casual leave before the Municipal Commissioner, PMC in the light of the contents of joint order dated 2.6.2009, Annexure-D to the counter affidavit and as she did not apply for leave her absence from the place of work is nothing but unauthorized absence and in appreciation of the fact that petitioner was also placed 6 under suspension earlier this Court should not interfere in the matter. 7. Having considered the submission of the parties, it is evident that even after repeal of the BRDA Act and dissolution of the PRDA the identity of the employees serving the PRDA on the date of dissolution has to be maintained separately until the State Government assessed the requirement of the PMC and adjusted/fitted the employees of the PRDA in the PMC on the same remuneration and with same terms and conditions of service as the employee(petitioner) would have held if the BRDA Act was not repealed. Before the repeal of the BRDA Act in terms of order dated 7.8.1989, Annexure-2 petitioner was authorized to apply for casual leave from the Controlling Officer i.e. Chief Accounts Officer and the same arrangement continued even after repeal of BRDA Act and dissolution of the PRDA. In appreciation whereof the joint order bearing Memo No.1097 dated 2.6.2009, Annexure-D to the counter affidavit also did not provide that employees of the PRDA should apply for grant of casual leave from the Municipal Commissioner, PMC and petitioner being conscious of the legal position applied for leave from the Controlling Officer i.e Chief Accounts Officer who sanctioned the same as is evident from leave application dated 7 3.11.2009, Annexure-1. Petitioner having proceeded on casual leave after the leave was allowed by the controlling Officer i.e. Chief Accounts Officer ought not to have been placed under suspension and subjected to departmental proceeding. For the failure of the Chief Accounts Officer to make alternative arrangement for drawing the cheque for payment of salary to the employees for the month of October, 2009 in compliance of the direction of the Municipal Commissioner action could have been taken against the Chief Accounts Officer but not against petitioner who proceeded on casual leave with permission. In the circumstances, the suspension order dated 5.11.2009, Annexure-3 and the memo of charge dated 5.12.2009, Annexure-8 appears to be arbitrary as the same has been issued without considering the leave application filed by the petitioner dated 3.11.2009 and the order passed thereon by the Chief Accounts Officer granting casual leave to petitioner for the period 4.11.2009 to 7.11.2009, Annexure-1 is quashed. 6. This writ application is, accordingly, allowed. AFR Rajesh/ ( V. N. Sinha, J.)