Heard both sides.
2.This writ petition arose out of O.A.No.3059 of 1998 filed by the petitioner before the Tamil Nadu Administrative Tribunal. In view of the abolition of the Tribunal, it was transferred to this court and was renumbered as W.P.No.35245 of 2006.
3.The petitioner sought for the issuance of a writ of certiorarified mandamus to call for the entire records pertaining to the impugned letter passed by the second respondent in E1/8272/96 dated 30.10.1996, wherein it has been informed that the applicant's request for treating the period from 10.9.95 to 6.3.96 as compulsory wait is not accepted by the first respondent in his letter No.S-2(1)/6824/96, dated 7.10.1996 (copy not furnished to the applicant), set aside the said impugned letters of the respondents and consequently, to direct the respondents to regularize the period between 10.9.1995 and 6.3.1996 as compulsory wait and further to direct the respondents to grant all service benefits pursuant thereto forthwith.
4.The petitioner was transferred by an order dated 1.9.95 from Devakottai to Thanjavur. He challenged the said transfer before the Tribunal by OA No.7028 of 1995. The Tribunal held that dismissed the OA by an order dated 12.4.96 and held that the transfer order did not suffer from any infirmity and the petitioner's continuance in the existing station will create complications. The petitioner aggrieved by the said order filed a review application before the Tribunal in RA No.66/97. The said review application was dismissed by the Tribunal, by an order dated 31.3.97. The petitioner challenged the said order of the Tribunal before the Division Bench of this Court. The writ petition being WP No.17269 of 1997 was dismissed by the Division Bench by an order dated 17.11.97. It was thereafter the petitioner came up with the present OA seeking for treating the period from 10.9.95 to 6.3.96 as compulsory wait. Since the Government refused to accede to the said request and he was informed by the impugned order that the period will be treated as to the leave to which he is eligible.
5.On notice from the Tribunal, the first respondent has filed a reply affidavit, dated 29.7.98. In the reply, it was stated that since the petitioner neither joined duty at the new station nor sent a report regarding his absence from 9.9.95, he cannot claim pay for the said period that by treating the said period as compulsory wait. The attention of the Court was also drawn to Ruling No.3 given under Fundamental Rule No.9 that it is only in case where there is want of posting order, the period can be treated as compulsory wait.
6.When a person does not obey the transfer order and subsequently, he was retained in service and given a posting order, as to how the said period shall be treated came up for consideration by the Supreme Court vide its judgment in State Bank of India v. Anjan Sanyal reported in (2001) 5 SCC 508. Useful reference may be made to the following passage found in paragraph 6 of the said judgment, which is as follows:
6. So far as the direction of the High Court regarding the salary and other pecuniary benefits is concerned, Mr Ray contended that for an employee of the bank in the absence of any rules, the principle of no work no pay can be made applicable and so long as the relationship of master and servant continues and the service has not come to an end, the employee is entitled to his salary. It is in this context, Mr Ray relied upon two decisions of this Court, the case of Bank of India v. T.S. Kelawala1 and Syndicate Bank v. K. Umesh Nayak. The latter one is a Constitution Bench decision. In the first case, referred to by Mr Ray, the question for consideration was if an employee takes recourse to strike or go slow or any other method, resulting in no work for the whole day or days, then whether the management will be entitled to deduct, pro rata or otherwise, wages of the participating workmen notwithstanding absence of any stipulation in the contract of employment or any provision in the service rules, regulations or standing orders. Mr Ray relied upon the observations made in the aforesaid judgment in para 22, to the effect: (SCC p. 760) Where the contract, standing orders or the service rules/regulations are silent on the subject, the management has the power to deduct wages for absence from duty when the absence is a concerted action on the part of the employees and the absence is not disputed. In the latter Constitution Bench decision also, the Court was considering whether workers having been on strike, wages could be paid or the theory of no work no pay would apply. Mr Ray contended that the ratio in the aforesaid case is that unless the Rules permit, the respondent would be entitled to the salary. In the Constitution Bench decision, the Court has observed that to entitle the workmen to the wages for the strike period, the strike has to be held both legal and justified and whether the strike is legal or justified are questions of fact to be decided on the evidence on record. Applying the same to the facts of the present case, the order of transfer having been held by us to be valid and the employee having not obeyed the same, and not having discharged the duties, but yet continuing in service, how the period should be dealt with, will depend upon the relevant Rules and Regulations of the Bank. We are told that the State Bank of India Officers Service Rules deal with the said situation, and, therefore, the competent authority of the Bank would deal with the same. But we have no hesitation in setting aside the directions of the High Court, directing the Bank to pay the salary and other benefits to the respondent in the case in hand. In the aforesaid premises, we set aside the judgment of the learned Single Judge as well as that of the Division Bench of the Calcutta High Court and allow this appeal. The writ petition filed by the respondent in the High Court stands dismissed.
7.In the light of the above facts and the legal precedents, the petitioner has not made out any case. Hence the writ petition stands dismissed. No costs.
vvk To
1.The Chief Engineer (General), Public Works Department, Chepauk, Chennai-600 005.
2.The Superintending Engineer, Water Resource Organisation, Kilvaigai Basin Circle, Public Works Department, Sivagangai.
3.The Superintending Engineer, Ground Water Circle, Public Works Department, Madurai 2