Borrowing Department Liable To Disburse Salary Of Employee Sent To It On Deputation: JKL High Court

The observations were made by Justice Sanjay Dhar while hearing a plea in terms of which the petitioner had sought a Writ of Mandamus against the respondents for releasing his salary for the period with effect from 01.06.2015 to 29.12.2016 along with interest with an additional compensation to the tune of Rs.74,000/ per month for the period during which his salary was withheld.

In the instant case the petitioner was permanent employee, working as a Driver with the J&K State Road Transport Corporation (SRTC). On 25.05.2016 he was transferred on deputation to the office of respondent No.2-Ladakh Autonomous Hill Development Council, Kargil (LAHDC).

After joining the petitioner discharged his duties as a Driver in the office of respondent No.2 but was not paid his salary despite many requests. Subsequently Respondent No.2 (LAHDV) vide communication dated 1st August, 2015, requested respondent No.4 (SRTC) to release the salary of the petitioner from his parent department but vide communication dated 13.09.2015, it was conveyed to respondent No.2 that there is no provision for payment of salary to those employees who have been sent on deputation to other departments/organizations.

Later on 27.12.2016 the petitioner came to be relieved from the office of respondent LAHDC and was directed to report to the office which is a subordinate office of respondent No.4 SRTC.

According to the petitioner, he served with respondent No.2 for 20 months on deputation basis but was not paid any salary for this period, either by LAHDC or by SRTC.

Dealing with the petition at hand Justice Dhar observed that when an employee is sent on deputation from his parent department to the borrowing department at the request of the borrowing department, it is the liability of the borrowing department to pay the salary of the employee.

Taking recourse to the available record the bench noted that the petitioner was sent on deputation by the SRTC to LAHDC and it was made clear that the salary of the petitioner shall be paid by the LAHDC, though it seems that the Council was not comfortable with the condition regarding payment of salary and in this regard it addressed a number of communications to the officers of the SRTC but at the same time the Council did not relieve the petitioner and continued to avail his services, that too when General Manager, J&KSRTC, vide his letter dated 13th September, 2015, had made it clear to the Council that the salary of the employees sent on deputation has to be borne by the borrowing department.

Dealing with the contention of the respondent LAHDC that the petitioner was not deputed but attached to the council, the bench observed that the stand taken by the LAHDC is belied from the order issued by the parent department whereby services of the petitioner were kept at the disposal of the LAHDC.

"Therefore, it is the LAHDC which has to pay the salary to the petitioner during the period he served with the said organization, particularly when in the deputation order itself it was made clear that the salary of the petitioner has to be borne by the Council. The respondents No.2 and 3 cannot wriggle out of their liability to pay the legitimately earned salary of the petitioner by taking a stand that it was a case of attachment only, which is not the correct position", the bench maintained.

Pointing out to the dispute between the two organization has led to withholding of legitimately earned salary of the petitioner for none of his fault the court held Respondents No.2 and 3 obligated to not only release the salary of the petitioner for the period he has served with them but also held them liable to pay interest.

Accordingly, the bench allowed the petition and directed respondent LAHDC to release the salary of the petitioner for the period he has served with Ladakh Autonomous Hill Development Council, Kargil, along with interest @6% per annum from the date of filing of this writ petition till realization of the amount.

Case Title : Abass Ali Vs State of J&K & Ors.

Citation : 2022 LiveLaw (JKL) 231

Coram : Justice Sanjay Dhar

Counsel For Petitioner : Firdous Ahmad.

Counsel For Respondent : Tahir Majid Shamsi DSGI

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