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% 24.08.2009
Present: Mr. Sidharth Joshi, Advocate for the petitioner.
Mr. Ajay Arora and for Mr. Ajay Arora, Advocates for respondent/MCD.
+ CM No. 10388/2009 in CM(M) No. 276/2009
*
Mr.Ajay Arora, Advocate, has filed a status report in response
S to CM No. 10388/2009. The same is taken on record. The relevant portion of the status report is reproduced hereinbelow:
"2. That the petitioner was absenting from his service since
24.9.2004 without any prior intimation or leave sanctioned.
That although he never came to report for his duties, his last drawnsalary as per E.C.R. record is till January
% 24.08.2009
Present: Mr. Sidharth Joshi, Advocate for the petitioner.
Mr. Ajay Arora and for Mr. Ajay Arora, Advocates for respondent/MCD.
+ CM No. 10388/2009 in CM(M) No. 276/2009
*
Mr.Ajay Arora, Advocate, has filed a status report in response
S to CM No. 10388/2009. The same is taken on record. The relevant portion of the status report is reproduced hereinbelow:
"2. That the petitioner was absenting from his service since
24.9.2004 without any prior intimation or leave sanctioned.
That although he never came to report for his duties, his last drawnsalary as per E.C.R. record is till January
That having absented from the service, he again reported for duty on 19.5.2006 along with a medical certfIcate issued by leprosy home (MCD) Tahirpur, Shadara Delhi indicating that he was suffering from accidental back injury and depression and was under the treatment with effect from 24.9.2004 till 18.5.2006 vide OPD. NO. 16480104 and 4810106.
That in view of the medical certflcate produced by the
Additional Commissioner (Factory) vide his order dated
19.5.2006 was pleased to allow Shri Vinay Awasthy to join his duty w. e.f 19.5.2006 In the said office order it was made clear that his leave case was to be decided separately. In other words it implied that he was not entltled to any salary till his case was decided."
2009:DHC:8501
In view of the said status report, the only clarification that is required in the order dated 27th April, 2009 is that, "Mr. Ajay ArOra, learned Standing Counsel for MCD states that petitioner's salary has not been prepared by the department after January, 2005".
Consequently, the order dated 27th April, 2009 stands modified and would read as under:
S
"Mr. Ajay Arora, learned Standing Counsel for MCD states that petitioner 's salary has not been prepared by the department after January, 2005. He further states on instructions that MCD would be shortly initiating a regular departmental proceeding against the petitioner..
However, he states that as on today there is no salary/dues payable to petitioner.
In my view, as the petitioner purposely and deliberately did not report for duty, it cannot be said that petitioner does not have any earning capacity. Petitioner cannot make a virtue Of his own misdemeanor.
In my opinion, the impugned order by virtue of which respondent has been granted maintenance at the rate of
' Rs. 6,5001- per month is neither in excess of jurisdiction nor it suffers from any material irregularity. Consequently, impugned order does not call for interference under
Article 227 Jurisdiction.
With aforesaid observation, present petition and application are dismissed."
27612009 page2of3.
That in view of the medical certflcate produced by the
Additional Commissioner (Factory) vide his order dated
19.5.2006 was pleased to allow Shri Vinay Awasthy to join his duty w. e.f 19.5.2006 In the said office order it was made clear that his leave case was to be decided separately. In other words it implied that he was not entltled to any salary till his case was decided."
2009:DHC:8501
In view of the said status report, the only clarification that is required in the order dated 27th April, 2009 is that, "Mr. Ajay ArOra, learned Standing Counsel for MCD states that petitioner's salary has not been prepared by the department after January, 2005".
Consequently, the order dated 27th April, 2009 stands modified and would read as under:
S
"Mr. Ajay Arora, learned Standing Counsel for MCD states that petitioner 's salary has not been prepared by the department after January, 2005. He further states on instructions that MCD would be shortly initiating a regular departmental proceeding against the petitioner..
However, he states that as on today there is no salary/dues payable to petitioner.
In my view, as the petitioner purposely and deliberately did not report for duty, it cannot be said that petitioner does not have any earning capacity. Petitioner cannot make a virtue Of his own misdemeanor.
In my opinion, the impugned order by virtue of which respondent has been granted maintenance at the rate of
' Rs. 6,5001- per month is neither in excess of jurisdiction nor it suffers from any material irregularity. Consequently, impugned order does not call for interference under
Article 227 Jurisdiction.
With aforesaid observation, present petition and application are dismissed."
27612009 page2of3.
In view thereof, the application for modification of order dated
27th1 April, 2009 stands disposed of.
MANMOHAN, J
AUGUST 249 2009 is
S
CM(M) 27612009 page 3 of3.
27th1 April, 2009 stands disposed of.
MANMOHAN, J
AUGUST 249 2009 is
S
CM(M) 27612009 page 3 of3.
JUDGMENT