HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 6125/2008 Date of Decision: August 2, 2010 Uma Dutt Sharma ……. Petitioner Versus State of H.P. & Ors. ….. Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. No Whether approved for reporting? For the petitioner : Mr. Onkar Jairath, Advocate. For the respondents: Mr. R. K. Sharma, Sr. Addl. A.G. with Mr. Vivek Thakur, Addl. A.G. and Mr. Rajesh Mandhotra, Dy. A.G. Sanjay Karol, J. (Oral) Admittedly petitioner retired on 31.7.2001 from the post of Head Teacher. Almost 5 years after his retirement respondents issued the impugned order dated 29.4.2006 (Annexure PJ) which reads as under:- “No.Shiksha-Shimla (Pry.) (2-1) B (6) 1/2006-4108-9 O/o the Dy. Director of Elementary Edu. Shimla, Distt. Shimla. Dated Shimla-4 the 29th April, 2006 To The Block Elementary Education Officer, Matiana, District Shimla. Sub: Regarding Sh. Uma Dutt HT (Retd.) who willfully absented himself from duty 05.05.88 to 23.03.94 Memo: In compliance of Director of Elementary Education, Himachal Pradesh, Shimla -1 Office Memo No.EDN-H(Pry.) (II) B(6) 7-7/2K dated 23.04.2006 on the subject cited above. 2 From the perusal of the record supplied by your office it is clear that Sh. Uma Dutt Retd., HT, had willfully absented himself from duty w.e.f. 06.09.88 to 24.03.94. Therefore, keeping in view the provisions of FRSR-Part-II- Leave Rules, Chapter-III point-25, you are directed that the entire period of willfull absence from duty in r/o Sh. Uma Dutt, be treated as dies non for all purpose., viz, increment, leave and pension. Further action be taken accordingly under intimation to this office at the earliest. The Service book of Sh. Uma Dutt, Retd. HT, is also returning herewith in original. Yours faithfully, Sd/- Dy. Director of Elementary Education Encl; As above. Shimla, Distt. Shimla.” 2. During the course of his employment petitioner’s revised pay had been fixed in terms of office order dated 1.5.1999 (Annexure PD). In terms of letter dated 12.9.1997, the District Primary Education Officer, Distt. Shimla had directed the Block Primary Officer, Kumarsain to pay to the petitioner the entire outstanding dues from the year 1988. This is evident from Annexure PC. A similarly direction was also issued in terms of letter dated 4.6.1999 (Annexure PF). Prior to his retirement petitioner made a representation to the Block Primary Officer for providing him with the details of the amount deposited in the GPF Account. There is nothing on record to show that contents of any of the aforesaid letters were ever refuted by any of the authorities. At the time of his retirement the respondents issued office order dated 31.7.2001 (Annexure PI). Even in the said order no grievance of the petitioner’s absence from duty for the period 1988 to 1994 was made by the respondents authorities. 3. It is the petitioner’s grievance that inspite of the aforesaid communications and developments his retrial benefits and other dues have not been paid to him. 3 4. The respondents have opposed the petition on the ground that on 26.7.1987 when petitioner was transferred from Govt. Primary School, Jadoon (Matyana) to Govt. Primary School, Chaloti (Chirgaon), instead of joining at his place of posting he obtained a stay order from the judicial authority. As such, petitioner was relieved from his duty in absentia on 5.9.1988. Subsequently he was posted at the Govt. Primary School, Kathog on 24.3.1994 with the condition that he would give an undertaking that he would not file any claim for the period for which he was allegedly remained absent w.e.f. 6.9.1988 upto 24.3.1994, which undertaking of his reads as under: “Undertaking before joining I. I, Uma Dutt, JBT R/O Village Jadoon, P.O. Kelni Tehsil Theog, Distt. Shimla, H.P. do hereby declare today on 25.3.1994 before join my duties that if approval from the Govt. for the absent period of six years w.e.f. 5.9.1988 to 24.3.1994 is not granted, I shall not claim any thing for the above mentioned period. II. I also declare that the decision of the Govt. for my absent period w.e.f. 5.9.1988 to 24.3.1994 will be acceptable to me. Applicant Sd/- Uma Dutt Sharma (JBT teacher) Govt. Primary School, Kathog Block Dated: 25.3.1994 Matyana Tehsil Theog, Distt. Shimla” 5. The issue of petitioner’s absence stood settled by the Government. In fact as is evident from the reply filed by the State, there was a stay order passed by the judicial authority operating in favour of the petitioner. It was in this background that the respondents authorities themselves, in compliance of the instructions issued by the Finance Department, issued an office order revising his pay scale w.e.f. 1.1.1996. Thus, it was not open for the respondents authorities 4 to reopen the issue of petitioner’s alleged absence from service and that too after a period of 5 years of his retirement. 6. Looking it from another angle, the respondents authorities even otherwise could not have initiated the impugned action keeping in view the provisions of Rule 9, Sub Rule (2), clause b, sub clause (ii) of the CCS Pension Rules, 1972. Admittedly the event in question pertained to the period 1988-1994 which was at least 7 years prior to the petitioner’s date of retirement. 7. It is also not disputed that prior to the initiation of the impugned action no notice of hearing/ representation was ever issued to the petitioner. The action was initiated behind his back. It entails civil consequences. 8. Keeping in view the aforesaid circumstances and for the aforesaid reasons, order dated 29.4.2006 is quashed. 9. The respondents authorities are directed to release the outstanding dues including the arrears to the petitioner within a period of 3 months from the date of receipt of the certified copy of the order. It is clarified that if the needful is not done within the aforesaid period, then thereafter petitioner shall be entitled to interest @9% per annum. With the aforesaid observations, the petition is disposed of. ( Sanjay Karol ), Judge. August 2, 2010 (rana)