HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.18669 of 2009 (O&M) Date of Decision: 19.09.2011 **** Kulbir Singh . . . . Petitioner VS. State of Punjab & Ors. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. RS Bajaj, Advocate for the petitioner Ms. Sudeepti Sharma, DAG Punjab ***** SURYA KANT J. (ORAL) (1). The petitioner is a Lecturer in the Education Department, Punjab who is aggrieved by the non-payment of salary to him for the period from 28.02.2006 to 30.01.2007 which has been treated as ‘non-duty period’. (2). The undisputed facts are that the petitioner was transferred from Government Senior Secondary School, Sidhwan Dona to Government Sr.Secondary School, Bhagta, District Bathinda vide an order dated 23.02.2006. While the petitioner claims that he was not permitted to join at the new place of posting, the respondents have categorically held vide the impugned order that the cwp no.18669 of 2009.doc - 2 – petitioner did not join his duties deliberately and willfully absented. (3). The issue as to whether the petitioner did not join the duties at his own or was he not permitted to join, is a question of fact which can only be determined by holding a fact-finding enquiry by associating all the concerned. It is true that the District Education Officer in his report dated 01.02.2007 (Annexure P7) has observed about willful absence of the petitioner and the plea taken by the respondents in paras 3&4 of their reply-affidavit carries some substance, yet the contents of the above-stated letter cannot be treated as a fact-finding enquiry. No such enquiry has been held so far though the Legal Assistant of the Department made a wrong statement to this effect on 02.02.2011. Thereafter an additional affidavit dated 20.05.2011 is said to have been filed (though not on record) wherein it is stated that no such enquiry regarding the alleged absence of the petitioner from duty has been conducted. It is not necessary in this regard that the petitioner should be formally charge-sheeted or punished after a regular enquiry for the alleged misconduct of absence from duty. (4). Suffice it to observe that if the petitioner deliberately did not join the duties, no premium can be awarded to him and 2 cwp no.18669 of 2009.doc - 3 – the authorities would be justified in treating the absence period as ‘no duty period’. However, if the petitioner was deprived of the duties for no fault on his part then such a period can be declared to have been spent on duty. (5). The writ petition is accordingly disposed of with a direction to the Principal Secretary, Education Department, Punjab to depute a fairly senior officer of the Department or a member of the Punjab Civil Service (Executive Branch), to hold the fact-finding enquiry and thereafter pass an appropriate order in accordance with law. (6). The entire exercise shall be undertaken within a period of six months. (7). For the time being no interference with the impugned order is called for and it shall remain operative. (8). There shall be cost of Rs.3000/- to be personally recoverable from Sashi Garg, Legal Assistant of the Department for making wrong statement and the same be deposited in the Lawyers’ Welfare Fund within a period of two weeks. (9). Ordered accordingly. Dasti. 19.09.2011 vishal shonkar (SURYA KANT) Judge 3