1 S/3-4 S.B. CIVIL WRIT PETITION No.4579/2003 [MAHAVEER SINGH MEHTA VS. STATE OF RAJ. & ORS.] S.B. CIVIL CONTEMPT PETITION No.92/2004 [MAHAVEER SINGH MEHTA VS. STATE OF RAJ. & ORS.] Dated : 04.03.2008 HON'BLE MR. MUNISHWAR NATH BHANDARI, J. Mr.M.R.Singhvi for the petitioner. Mr.N.M.Lodha AAG for the respondent. ***** By this writ petition the petitioner has challenged the order dated 30.07.2003 by which he was ordered to be repatriated to his parent department. The challenge to the aforesaid order is made mainly on the ground of malafides of the respondents. It is contended that petitioner had not exceeded to favour certain officials of the organisation where he was sent on deputation rather discovered various irregularities in the working thus the order impugned was passed in hast so that the petitioner may not further discover any other irregularities. In the writ petition since an order for maintaining status quo was passed by this Court on 25.08.2003 thus a Contempt Petition for non-compliance of the order dated 25.08.2003 has also been filed and is argued along with writ petition. The contention in the Contempt Petition is that the petitioner was working with the respondent organisation RUIDP till 01.09.2002 yet the petitioner was not allowed to continue in the aforesaid organisation though prior to 01.09.2003 order for maintaining status quo was passed on 25.08.2003 itself. Therefore, the 2 petitioner has even prayed for an order of punishment against the respondent officials for deliberately disobedience of the court orders. Learned counsel for the respondent on the other hand submits that petitioner was sent on deputation to RUIDP therefore, he was liable to be repatriated by the said organisation at any time thereby the order dated 30.07.2003 is not amiable to challenge as by virtue of the said order the petitioner was to be repatriated to his parent department. Referring to the Contempt Petition it is contended that the petitioner was relieved much prior to passing of the order of this Court on 25.08.2003 therefore, he was not to be continued with the RUIDP but petitioner was to work with the parent department i.e. UDH department of State of Rajasthan but then petitioner had not reported to the UDH Department after his relieving. Thus it was submitted that respondent officials have not violated the directions of this court. I have heard the learned counsel for the parties and perused the record. First dealing with the challenge to the order dated 30.07.2003 Annex.45 I find that the said order was passed almost four and half years back, therefore, looking to the period passed intervening, adjudication of the aforesaid order needs to be made keeping in mind that petitioner was sent to RUIDP only on deputation. An employee is sent on deputation is always liable for his repatriation though such repatriation should not suffer 3 from the voice of malafides and arbitrariness. In the present matter, serious allegations have been made by the petitioner against the officials of the respondent RUIDP however, looking to the fact that pending writ petition and a period of four and half years had already passed thus no fruitful purpose will surve to struck down the order dated 30.07.2003 more so when the respondent RUIDP as well as UDH department would otherwise having a right of repatriation of the petitioner. However, necessary discretion in regard to the order dated 30.07.2003 is required to be made in reference to the pendency of the Contempt Petition because due to dispute interse between the petitioner and the respondent, a period of four and half years has passed, during this period, petitioner has not been taken on duty, though the status quo order passed by this Court on 25.08.2003 was then confirmed by this Court on 11.09.2003. The confirmation of the stay order was in absence of the respondents who remain absent despite of service, therefore, a clear default lies with the respondents in pursuing the matter at that stage. The facts, however, remains that respondents thereafter passed an application for recalling of the order dated 11.09.2003 but reasons given therein were not found convincing thus this Court dismiss the application filed by the respondents. The consequences of which is that the petitioner was pressing hard for taking him on duty by RUIDP and in that regard even Contempt Petition was filed but at the same time respondents had not taken petitioner on duty by the RUIDP and even UDH Department had not passed posting order and thereby the Contempt Petition also remain 4 pending during the entire intervening period. Looking to the serious controversy regarding non-compliance of the order of this Court, in view of status quo order was passed by this court on 25.05.2003 and as per the documents available on record, petitioner's working with RUIDP is shown till 01.09.2003 though according to the respondents, petitioner was first relieved on 01.08.2003 followed by another relieving order dated 04.08.2003 and the last order of relieving dated 21.08.2003. Referring to the aforesaid orders, respondents have submitted that petitioner was finally relieved on 21.08.2003 therefore, question of committing contempt by any official does not arrived. It is little surprising that an employee has been relieved on three different occasions but then he worked with the respondents till 01.09.2003 therefore, a situation is created where it becomes that the respondents officials have violated courts order dated 25.08.2003 by not keeping the petitioner in service of RUIDP. Even if the aforesaid aspect is ignored with a view, not to punish the official of the respondent then the further facts come for consideration as to why respondent UDH Department had not issued order of posting in favour of the petitioner so that he may have joined elsewhere and the situation as a consequence of that arose is that petitioner remained without posting during the intervening period from the date of passing of the interim order till date. The respondents had not even moved an application seeking clarification of status quo order, so that at least posting order is issued because joining parent department without posting order is to keep 5 petitioner idle. Learned AAG has taken an excuse that such posting orders are passed only when pursuant to the relieving, officials reports on duty to the parent department. Such an excuse cannot be accepted because there is no rule to this fact and even it is assumed that the petitioner was to report on duty then nothing prevented to the respondents to issue notice to the petitioner for directing him for joining. The excuse of the respondents for non-passing of the posting order cannot be accepted even in the light of the status quo order dated 25.08.2003 because if the respondents were restrained to pass a posting order immediately after relieving, the petitioner cannot be blamed for remaining idle for the entire intervening period, more so due to absence of the respondents, stay order was confirmed ex parte. Therefore, the position as has been created by the respondents due to actions/inactions is as to how the intervening period is to be treated. Both the learned counsel for the parties submitted that this Court alone should pass appropriate order in that regard. Though during the course of argument learned counsel for the petitioner was to persuaded to forgo 50% of the wages for the intervening period so that liability of the intervening period may be shoulder by the petitioner as well as by the respondent equally so that no order adverse to the contempnor be passed in the Contempt Petition. The counsel for the petitioner has persuaded the petitioner who has agreed to forgo 50% of the wages for intervening period while 6 pursuing the writ petition as well as the Contempt Petition. Looking to the peculiar facts and circumstances it becomes clear that in view of the interim order dated 25.08.2003 as was confirmed by this Court, the petitioner having worked till 01.09.2003, the interim direction of the court is violated if the petitioner was not further been continued by the RUIDP but then looking to the fact that impugned order dated 30.07.2003 now not likely to be interfered due to lapse of time, it is found appropriate that to balance the equities between the parties, the petitioner should forgo 50% of the wages for the intervening period and at the same time respondent should pay 50% wages for the aforesaid period. The aforesaid order is required to be passed so that while disposing of the writ petition the Contempt Petition is also disposed of and at the same time the respondents may at least pass a posting order now, in favour of the petitioner so that he may join his services in the parent department at a place where he is to be posted now. In that eventuality no adverse order in the Contempt Petition is required to be passed. In the facts and circumstances the following order is passed. A] The order dated 30.07.2003 is not interfered in view of the lapse of four and half years time pending writ petition. B] The respondents petitioner will not claim 50% of the wages from 25.08.2003 to the date of posting of order to be passed by the respondents 7 now. C] The respondents will pay only 50% of the wages to the petitioner for the intervening period as mentioned in Para 2 of the directions. D] The respondents will pass posting order of petitioner within ten days from the date of receipt of the certified copy of this order . Petitioner is directed to join his services at the place where he is now posted. The necessary payment of the wages may be made within a period of three months from the date of receipt of certified copy of the order as otherwise agreed by the learned AAG. The entire intervening period starting from 21.08.2003 till date of joining of the petitioner pursuant to the order of posting now to be passed, same would be treated as continuous. In the result, the Writ Petition as well as Contempt Petition also stands disposed of. (MUNISHWAR NATH BHANDARI), J. mamta