IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1894 of 2009-D Decided on: 17.10.2011 Swaran Singh …Petitioner. Versus H.P. State Electricity Board …Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Dilip Sharma, Advocate. For the respondent: Ms. Anjula Khajuria, Advocate. Deepak Gupta, J. (Oral) By means of this petition, the petitioner has prayed that he be treated to be in service w.e.f. 09.02.1989 till 30.09.1992 for all intents and purposes. 2. Briefly stated, the facts of the case are that the petitioner was posted in the H.P. State Electricity Board on Rong Tong Project at Spiti and worked there from from 1975 till December, 1986. He proceeded on leave on 16.10.1986. Though, this leave was shown to be casual leave, the petitioner remained absent and did not rejoin the duty. The authorities sent 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- various letters to the petitioner and even public notice was issued in the newspapers asking him to rejoin, but he did not do so. Finally on 28.01.1989, the petitioner was charge sheeted as to why disciplinary action may not be taken against him for remaining willfully absent from duty. The petitioner replied to the charge sheet and stated that he had been absent because of his illness and illness of his family members. He also prayed that he be posted at Parwanoo and if the department could not post him at Parwanoo, he was willing to join duty at some other place. The petitioner also sent a letter to the department on 26.10.1990, which reads as follows: “S.S.-10/90-1 Dt. - 26.10.90 To The Secretary H.P. State Elecy. Board Subject: Posting order. Sir, I have already requested for my Posting order so that I may report for duty. Inspite of many requests and letters I have not received any Posting order uptill now. With the result I have been kept waiting for Posting order. It is therefore requested that I may be given Posting order immediately so that I may report for duty accordingly. Thanking you. Sd/- (SWARAN SINGH)” 3. In reply thereto, the department sent a letter to the petitioner, which reads as follows: -: 3 :- “HIMACHAL PRADESH STATE ELECTRICITY BOARD NO. HPSEB (SECTT)/102-37/90-191398 Dated 4.12.90 To Shri Swaran Singh, Assistant Engineer, House No. 1111, Sector 19-B, Chandigarh. Sub:- Posting orders. Sir, I am to refer to your office letter No. SS- PF-10/90-1 dated 26.10.90 on the above cited subject and to inform you that disciplinary action has been initiated against you for your wilful absence from duty. The Inquiry officer has now submitted his report which is under consideration of disciplinary authority. Your posting shall be decided immediately after the decision on disciplinary case is arrived at. Yours faithfully, sd/- Addl. Secretary, H.P. State Electy. Board, Shimla-4.” 4. Therefore, the petitioner was clearly told that his posting shall be decided after the decision of the disciplinary case. In the disciplinary proceedings, the charges against the petitioner were proved and penalty of reduction to the lowest stage in the time scale was imposed upon the petitioner. The petitioner filed OA No. 666 of 1995 which was allowed by the erstwhile Tribunal and the penalty was set aside and the petitioner was held entitled for all the consequential benefits. The H.P. State Electricity Board filed CWP No. 1920 of 2007 and a Division Bench of this Court set aside the order of the Tribunal and directed that the petitioner-Board may continue with the disciplinary action from the stage of issuance of show cause notice for imposition of penalty. The petitioner had retired from -: 4 :- service on 30.06.2001. Thereafter, the petitioner was heard and penalty was reduced to stoppage of one increment without cumulative effect and it was also decided to regularize the period of absence by granting the leave of the kind due. The petitioner filed an appeal and the Full Board upheld the said order and directed that entire period of absence be treated as the leave of the kind due. 5. The case of the petitioner is that alongwith his reply filed to the Board, he had clearly stated that he was willing to join duty and the Board did not pass any order. In my view, the petitioner cannot take advantage of his reply filed to the show cause notice because in that reply, he did not clearly state that he was willing to join duty. However, on 26.10.1990, the petitioner wrote a letter to the Secretary of the Board clearly mentioning that despite his requests, he had not received any posting order and he did not know where he was to join the duty. 6. In reply thereto, the petitioner was informed that since the inquiry was pending, the question of his posting would be decided after decision of the disciplinary action. This action was totally illegal. Either the petitioner had to be placed under suspension or he had to be given a posting order. In view of the conduct of the petitioner in remaining willfully absent, the period when he did not indicate clearly that he was willing to join duty, has not been taken into count, but once the petitioner on 26.10.1990 had clearly stated that he was willing to join duty at -: 5 :- any place and posting orders be issued, the Board could not have kept this matter pending and was bound to issue posting orders. The petitioner, even if he had been suspended, would have got suspension allowance, but he could not have been kept without pay for the period during which he was willing to join duty. I feel that after the petitioner expressed his willingness to join duty, the Board should have give him the posting orders within a month or so and latest by 30th November, 1990. 7. In view of the above discussion, the petition is partly allowed and it is held that the petitioner shall be held entitled to salary and other allowance from 01.12.1990 till 30.09.1992. This amount be paid to the petitioner latest by 28th February, 2012, failing which the Board shall be liable to pay interest @ 6% per annum w.e.f. 31.12.2008, when the order was again passed in the disciplinary proceedings, till the payment of the same. Petition is disposed of, accordingly. No costs. (Deepak Gupta) Judge October 17, 2011 (rajni)