# Smt Lila Vishwakarma v. State of U.P. and others

- **Citation:** (2008) 3 ILRA 905
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-28
- **Case number:** Civil Misc. Writ Petition No. 17595 of 2004
- **Bench:** Tarun Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-lila-vishwakarma-v-state-of-u-p-and-others-41265
- **Pages:** 5

## Headnote

Constitution of India-Art. 226-Salarypetitioner
working
as
A.N.Ms.-
transferred from P.H.C. Chail to Newadaon
representation
considering
her
personal hardships the authority concern
cancelled
the
Transfer
ordersubsequently on approach of interested
person-revoked the cancellation orderconsequently the petitioner was directed
to open her account at Newada Block
only then salary shall be released-inspite
of direction of Court-insisting petitioner
to open her account at Newada-heldpatently arbitrary-clear cut harassment
of petitioner-direction issued to give
entire arrears of salary with 40,000/-
towards interest alongwith Rs.10,000/-
as
cost-payment
be
made
through
cheque or D.D. within 4 weeks-direction
to
initiate
disciplinary
proceeding
against the erring Officer.

Held: Para 10

The Court finds that during the pendency
of the writ petition, no effort was made
by
the
respondents
to
solve
this
imbroglio made by the respondents. No
effort was made by the respondents to
evolve
an
amicable
solution.
The
respondents
remained
adamant,
insisting that the petitioner should open
an Account in Nevada and only then she
would
be
paid
her
salary.
The
respondents have paid the arrears of
salary to the petitioner by cheque
through the Court, and that too, only
when
the
Court,
directed
the
respondents to do so. A clear case of
arbitrariness
on
the
part
of
the
respondents is spelt out. The action of
the respondents cannot be condoned.
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
906
This
Court
had
asked
the
learned
Standing Counsel as to why the arrears
of salary till April, 2008 had only been
cleared and why the salary for May, June
and July, 2008 had not been released.
The learned Standing Counsel submitted
that in this regard, the salary for these
months had not been received from the
State Government, and therefore, no
salary could be disbursed.

## Text

3 All] Smt. Lila Vishwakarma V. State of U.P. and others
905
found not guilty his honour may be
vindicated and in case he is found guilty,
the administration may get rid of him at
the earliest."

5. A similar view has also been
taken in Indian Overseas Bank Vs. P.
Ganesan & others AIR 2008 SC 553
and the Court held that where a prayer is
made that so long as criminal proceedings
are going on, departmental proceeding
may not be proceeded, the Court must
record a finding that the non grant of stay
on departmental proceeding would not
only prejudice the delinquent officer, but
the matter also involve a complicated
question of law. Noting of that sort has
been shown by the learned Counsel for
the petitioner in the case in hand.

6. Moreover, no final order has been
passed in the departmental proceeding
and only a show cause notice has been
issued to the petitioner. Therefore, in my
view, even otherwise, the writ petition is
pre-mature.

7. I, therefore, do not find any
reason to interfere at this stage. The writ
petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2008

BEFORE
THE HON'BLE TARUN AGARWAL, J.

Civil Misc. Writ Petition No. 17595 of 2004

Smt Lila Vishwakarma
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.K. Yadav
Sri Anil Kumar Sharma
Sri G.D. Mukherji
Sri Satyajit Mukerji
Sri R.K. Vaish

Counsel for the Respondents:
Sri Mohan Yadav
S.C.

Constitution of India-Art. 226-Salarypetitioner
working
as
A.N.Ms.-
transferred from P.H.C. Chail to Newadaon
representation
considering
her
personal hardships the authority concern
cancelled
the
Transfer
ordersubsequently on approach of interested
person-revoked the cancellation orderconsequently the petitioner was directed
to open her account at Newada Block
only then salary shall be released-inspite
of direction of Court-insisting petitioner
to open her account at Newada-heldpatently arbitrary-clear cut harassment
of petitioner-direction issued to give
entire arrears of salary with 40,000/-
towards interest alongwith Rs.10,000/-
as
cost-payment
be
made
through
cheque or D.D. within 4 weeks-direction
to
initiate
disciplinary
proceeding
against the erring Officer.

Held: Para 10

The Court finds that during the pendency
of the writ petition, no effort was made
by
the
respondents
to
solve
this
imbroglio made by the respondents. No
effort was made by the respondents to
evolve
an
amicable
solution.
The
respondents
remained
adamant,
insisting that the petitioner should open
an Account in Nevada and only then she
would
be
paid
her
salary.
The
respondents have paid the arrears of
salary to the petitioner by cheque
through the Court, and that too, only
when
the
Court,
directed
the
respondents to do so. A clear case of
arbitrariness
on
the
part
of
the
respondents is spelt out. The action of
the respondents cannot be condoned.
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
906
This
Court
had
asked
the
learned
Standing Counsel as to why the arrears
of salary till April, 2008 had only been
cleared and why the salary for May, June
and July, 2008 had not been released.
The learned Standing Counsel submitted
that in this regard, the salary for these
months had not been received from the
State Government, and therefore, no
salary could be disbursed.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Shri Anil Kumar Sharma,
learned counsel for the petitioner and Shri
Mohan Yadav, learned Standing Counsel
for respondents.

2. The petitioner has filed the
present writ petition praying that the
respondents be restrained from interfering
with the peaceful working of petitioner as
A.N.M. at Prathmik Swasthya Kendra,
Chail in District Allahabad and that a writ
of mandamus be also issued directing the
respondents to pay the salary and arrears
of salary along with 12% interest since
August, 2003 onwards.

3. The facts leading to the filing of
the writ petition is, that the petitioner was
appointed as A.N.M. in the year 1981 and
since then is working in the Primary
Health Centre at Chail in District
Allahabad. On 23rd July, 2003, the
petitioner was transferred from Chail to
Kada and was directed to hand over the
charge to Smt Suman Dwivedi, who was
posted on that place in her place. The
petitioner made a representation for the
cancellation of her transfer order on
personal
ground,
which
was
duly
considered by the authority, and by an
order dated 4th September, 2003, the
transfer order of the petitioner was
cancelled, and she was allowed to work at
the place where she was originally
working, namely, Primary Health Centre,
Chail in District Allahabad (now District
Kaushambi).
As
a
result
of
the
cancellation of the transfer order, the
petitioner remained at Chail. It has also
come on record that during the pendency
of the petitioner's representation, she did
not hand over the charge to Suman
Dwivedi, though the learned counsel for
the respondents, on the other hand,
submitted that Suman Dwivedi was
allowed to join at Chail.

4. The problem arose when the
petitioner and Suman Dwivedi started
working at the Primary Health Centre at
Chail. Whereas, Suman Dwivedi was paid
her salary, the petitioner was not paid her
salary.
The
petitioner
made
a
representation, which fell on deaf ears. It
is alleged in the writ petition that the
petitioner was threatened with dire
consequences by respondent nos. 5 and 7,
namely, by the then Chief Medical
Officer and the Medical Officer In-charge
I, respectively. It has been stated that
subsequently the Chief Medical Officer
issued an order dated 1st November,
2003/4th November, 2003 directing that
the petitioner would be paid the salary
from PHC, Chail and that Smt Suman
Dwivedi, who was earlier working at
PHC, Nevada, would draw her salary
from that Centre alone. This suited the
petitioner, but subsequently, without any
rhyme or reason, the Chief Medical
Officer reversed its order and issued a
fresh order dated 12th of December, 2003
directing that Suman Dwivedi will receive
her salary from the Primary Health
Centre, Chail and that the petitioner
should approach the authority at the
Public Health Centre, Nevada for release
of her salary. This order was not accepted
3 All] Smt. Lila Vishwakarma V. State of U.P. and others
907
by the petitioner, and consequently, the
stalemate
continued.
The
petitioner
continued to discharge her duties at Chail
and the authorities remained adamant not
to release her salary and insisted that the
petitioner should open an Account in a
Bank at Nevada so that her salary could
be released from Primary Health Centre,
Nevada.

5. In this manner, the situation
continued, and eventually, the petitioner
approached the writ Court in the year
2004. The Court by an interim order dated
7th
September,
2005,
directed
the
respondents to show cause why salary to
the petitioner had not been paid for two
years.
The
Court
further
directed
respondent nos. 4 and 5 to file their
personal affidavit, in spite of which, the
respondent no. 5 did not file his personal
affidavit. However, on 21st September
2005, the respondents produced two
treasury cheques for a sum of Rs.48350/-
and another for Rs.50100/- and 3 cheques
drawn on Bank of Baroda, Branch
Nevada, District Kaushami for a sum of
Rs.51942/-, 8350/- and 25490/- towards
the arrears of salary payable to the
petitioner. The order sheet of 13th
October, 2006 further records that the
respondents produced three cheques from
the Nevada Branch, total Rs.2,40,023/-
towards the arrears of salary and again
impressed upon the Court praying that the
petitioner should open an Account in
Nevada so that her salary could be
deposited in that Account.

6. This matter was taken up in
August, 2008 and the same thing was
reiterated all over again, namely, that the
petitioner has not been paid the salary
from September, 2006 onwards. The
learned
Standing
Counsel
sought
instructions and again intimated the Court
that the salary has not been paid to the
petitioner on account of the fact that the
petitioner has not opened an Account in
Bank in Nevada in district Kaushambi,
and therefore, the salary could not be
deposited in her Account. On 27th August,
2008 the respondents produced three
cheques drawn from the Nevada Branch
for a sum of Rs.19900/-, 113130/- and
88085/- towards arrears of salary for the
period September, 2006 to April, 2008.

7. This is the situation which exists
as on date. The admitted position which
stands today is that the petitioner is still
working at Chail which is now in district
Kaushambi. Therefore, she is entitled to
be given the salary from the Primary
Health Centre, Chail. The insistence of
the respondents to disburse the salary of
the petitioner from Primary Health
Centre, Nevada is apparently arbitrary and
without jurisdiction. The petitioner has
never worked at any moment of time at
the Primary Health Centre, Nevada. This
centre is also 20-30 kilometres away from
this Primary Health Centre, Chail. It does
not stand to reason as to why the
petitioner should open an Account at
Nevada when the petitioner has neither
worked at that place, nor is residing at
that place, nor had been transferred to that
place.
If
for
any
administrative
convenience
the
respondents
are
disbursing the salary from the Primary
Health Centre, Nevada, it is their own
internal arrangement, in which, the
petitioner has no role to play and the
petitioner cannot be forced to open an
Account at Nevada on the whims and
fancies of the respondents merely because
it is convenient for the respondents to
disburse the salary from Nevada.
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
908
8. On the other hand, the order of 4th
November, 2003 gives a clear indication
of the internal arrangement made by the
respondents, namely, that the petitioner
was already working at Allahabad and,
therefore, she would continue to withdraw
her salary from Chail, and that Suman
Dwivedi, who was earlier working at
Nevada, would continue to draw her
salary
from
Navada.
But,
this
arrangement
was
reversed
by
the
respondents by an order dated 12th
December, 2003 which is indicative and it
can be safely presumed that the said order
was passed either to benefit someone or to
harass the petitioner.

9. In view of the aforesaid, the
insistence of the respondents directing the
petitioner to draw salary from Nevada and
further insisting the petitioner to open an
Account in Nevada, is patently arbitrary,
and, in my opinion, a clear cut case of
harassment is made out against the
petitioner, for reasons best known to the
respondents. It is alleged by the petitioner
that this arrangement was specifically
made in order to ensure that Suman
Dwivedi remains posted at Chail and is
paid the salary from that centre. Without
going into this controversy, it is sufficient
for the Court to hold that when the
transfer order of the petitioner was
cancelled and she was directed to work at
Chail, the respondents should have passed
another consequential order for the
placement of Suman Dwivedi. The
respondents, in any case, could not have
forced the petitioner to draw salary from
Nevada, the place where she had never
worked, nor had she been transferred to
that place. Consequently, the action of the
respondents is a clear indication of
vindictive attitude against the petitioner
and indicates favouritism given to Suman
Dwivedi who was transferred to Chail.

10. The Court finds that during the
pendency of the writ petition, no effort
was made by the respondents to solve this
imbroglio made by the respondents. No
effort was made by the respondents to
evolve
an
amicable
solution.
The
respondents remained adamant, insisting
that the petitioner should open an Account
in Nevada and only then she would be
paid her salary. The respondents have
paid the arrears of salary to the petitioner
by cheque through the Court, and that too,
only when the Court, directed the
respondents to do so. A clear case of
arbitrariness
on
the
part
of
the
respondents is spelt out. The action of the
respondents cannot be condoned. This
Court had asked the learned Standing
Counsel as to why the arrears of salary till
April, 2008 had only been cleared and
why the salary for May, June and July,
2008 had not been released. The learned
Standing Counsel submitted that in this
regard, the salary for these months had
not
been
received
from
the
State
Government, and therefore, no salary
could be disbursed.

11. In view of the aforesaid, the writ
petition is allowed. A writ of mandamus
is issued to the respondents directing the
petitioner to work at the Primary Health
Centre, Chail and would be entitled to
draw her salary from the Primary Health
Centre, Chail. The respondents will
ensure that the salary is released and paid
to the petitioner every month or credited
in her account at Chail. The arrears of
salary from May, 2008 till date would
also be cleared within four weeks from
today.
3 All] B.K. Kushwaha V. Union of India and others
909
For the harassment caused to the
petitioner and for the non-payment of the
arrears of salary, the petitioner has made
out a case for grant of cost and payment
of interest on the delay in payment of the
salary. The petitioner has claimed cost as
well as 12% interest on arrears of the
salary from September, 2003 onwards
was not paid and was only cleared when
the Court directed. If a reasonable rate of
interest at the rate of 6% is charged,
approximately Rs.40,000/- would come
towards
interest.
This
Court,
consequently,
quantifies
a
sum
of
Rs.40,000/- as interest and cost of this
petition at Rs.10,000/-. The amount of
Rs.50,000/- shall be paid to the petitioner
by means of a cheque/pay order/demand
draft in favour of the petitioner within
four weeks from today or may be credited
in her Account. If the amount is not paid
to the petitioner within the said period, it
would be open to the petitioner to move
an
appropriate
application
for
the
execution
of
the
order.
Since
the
respondents were responsible for not
paying the salary to the petitioner, the
Secretary,
Department
of
Health,
Lucknow is consequently directed to hold
an enquiry and recover the cost and
interest from the erring officials.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.08.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE S.P. MEHROTRA, J.

Civil Misc. Writ Petition No.14709 of 2005

B.K. Kushwaha

...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri A.D. Saunders
Sri R.K. Nigam
Sri H.L. Pandey
Sri S.M. Ali

Counsel for the Respondents:
Sri K.C. Sinha, Addl. Solicitor General of
India
Sri Vishnu Pratap
Sri Sahab Tiwari

Constitution of India, Art. 226-Service
law-two different punishment on two
different
charge
sheet-run
consecutively-held-shocking
the
confidence of court-modified to run
concurrently-with life of five years.

Held: Para 11

As held above, the view taken by the
respondent - Bank that the punishments
given to the petitioner under the two
orders passed by the Appellate Authority
and
confirmed
by
the
Reviewing
Authority would run consecutively and
not concurrently, is shocking to our
conscience. Therefore, in view of the
above decisions, a direction is liable to
be issued to the respondent-Bank that
both the punishments to the petitioner
with regard to both the charge-sheets
shall
run
concurrently
and
not
consecutively. After the period of five
years is over, both the punishment
orders will come to an end.
Case law discussed:
AIR 2003 SC 1571, (2003) 4 SCC 364, AIR
2005 SC 3417, AIR 2006 SC 2208, (2006) 10
SCC 388

(Delivered by Hon'ble V.M. Sahai, J.)

1. Notice on behalf of the
respondent no.1 has been accepted by
Shri K.C. Sinha, learned Additional
Solicitor General of India. Notice on
behalf of the respondent nos. 2 to 8 has
been accepted by Shri Vishnu Pratap,