IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. (T) No. 14638 of 2008. Decided on 4th July, 2011. _____________________________________________________ Ashutosh Kumar Bhardwaj. …Petitioner. -Versus- State of H.P. and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mr. Surinder Saklani, Advocate. For the respondents. : Mr. Vikas Bhardwarj, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Petitioner is claiming salary of 92 days w.e.f. 29.09.2005 to 29.12.2005. Case of the petitioner, in a nut-shell, is that he fell sick on 29.09.2005 and applied for medical leave. He resumed his duties on 29.12.2005. However, his salary of 92 days has not been released. 2. Mr. Surinder Saklani, learned counsel for the petitioner has vehemently argued that his client was entitled to leave as per the CCS (Leave) Rules, 1972 and instructions dated 17.06.2004 invoked by the respondent-State to deny the salary of 92 days to his client are illegal. 3. Mr. Vikas Rathore, learned Deputy Advocate General has vehemently argued that the petitioner’s salary has been withheld on the basis of instructions issued on 17.06.2004. 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner was transferred from Government Senior Secondary School Sari Banglow, District Mandi to Government Senior Secondary School Majhin, District Kangra. He was relieved in absentia on 29.09.2005. According to the petitioner, he has proceeded on medical leave and has furnished the medical certificate. 6. Case of the respondent-State is that the petitioner avoided joining at the new place of posting, i.e., Government Senior Secondary School Majhin, District Kangra. The period of 92 days was regularized as leave without pay (without break in service) and not regularized by granting leave of kind due. 7. Mr. Surinder Saklani, learned counsel for the petitioner has drawn the attention of Court to letter dated 17.06.2004. The underlying objective of letter dated 17.06.2004 may be laudable, but it cannot be contrary to the CCS(Leave) Rules, 1972. Petitioner was entitled to get the earned leave or medical leave strictly as per the leave Rules. In this case, there is no evidence placed on record by the respondent-State that the petitioner had ever exerted any kind of political pressure upon the respondent-State to cancel his transfer. In case, this has to be treated as mis-conduct, the petitioner was required to be heard before the decision was taken to deny him the pay and by treating this period leave without pay (without break in service). This order has civil and evil consequences as far as an employee is concerned. What is expected from the model employer, is that the incumbent is to be issued a notice to explain the - 3 - circumstances against him and to prove his case before the authorities. Moreover, the salary is a property within the meaning of Article 300-A of the Constitution of India and it cannot be withheld, save and except in accordance with law. The decision dated 17.06.2004, whereby the salary of the petitioner has been withheld, cannot be treated as law. It is merely a letter issued by the Principal Secretary(Education), Government of Himachal Pradesh to the Director, Secondary Education. The action of the respondents withholding the salary of petitioner, that too, without hearing him, is violative of the principles of natural justice and the same is also illegal, arbitrary and unjust. 8. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. The respondents are directed to release the petitioner’s salary of 92 days within a period of twelve weeks from the date of production of a certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma) Judge July 04, 2011. (bhupender) - 4 - `