Vishnu Sahai Srivastava vs The D.I.O.S. Allahabad And Ors
2013 Latest Caselaw 7257 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									    AFR
 
									Reserved		Civil Misc. Writ Petition No. 31646 of 1998
 
Vishnu Sahai Srivastava.	 ....		....	...   Petitioner.
 
					Versus
 
The District Inspector of Schools, 
 
Allahabad and others. 	....		.....	...  Respondents.
 
					-------
 
Hon'ble Pradeep Kumar Singh Baghel, J.

The petitioner was an Assistant Teacher in an Intermediate College. He is aggrieved by the communication of the District Inspector of Schools, Allahabad dated 02/05th June, 1998 to the Committee of Management, whereunder petitioner's claim for his arrears of salary from 01st July, 1996 to 25th July, 1997 has not been accepted and the Committee of Management has been directed to take appropriate decision treating the said period as the petitioner was on leave without pay.

The foundational facts, in brief, are that the petitioner was appointed as an Assistant Teacher in an Intermediate College, namely, Boys Inter College, C.O.D., Chheoki, District Allahabad (for short, the "Institution"), which is a recognised institution. It receives aid out of the State fund. The provisions of the Uttar Pradesh Intermediate Education Act, 1921 and the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of the Teachers and other Employees) Act, 1971 are applicable to the institution.

Present dispute arose in respect of the option to retire at the age of 60 years. The date of birth of the petitioner is 25th January, 1938. He was initially appointed in the year 1972. The State Government by a Government Order dated 29th August, 1981 offered option to the teachers to either retire at the age of 58 years or 60 years in terms of Rule 15 of the Death and Retirement Rules, subject to certain conditions. It is stated by the petitioner that on 30th December, 1982 he submitted his option for retirement at the age of 58 years. However, he did not receive any communication from the respondents either accepting or rejecting the said option.

Later on, the State Government by another Government Order dated 06th October, 1990 offered a fresh liberty to the teachers to change their option to retire either at the age of 58 years or 60 years. It is averred by the petitioner that pursuant to the said Government Order dated 06th October, 1990, he again on 14th December, 1990 submitted his option for retirement at the age of 60 years. Thus, in view of his second option, petitioner was under the impression that he would reach his age of superannuation on attaining the age of 60 years i.e. on 30th June, 1998 but in the month of March, 1996, to his utter surprise, he was asked to submit his papers for pension, etc..

It is stated that immediately thereafter the petitioner made a representation dated 08th April, 1996 before the respondent nos. 1 to 3 to the effect that as the petitioner had given his second option on 14th December, 1990 for his retirement at the age of 60 years, there was no question of his being retired in June, 1996 and he would retire on 30th June, 1998. It is stated that whenever the petitioner met the respondents personally, he was assured that appropriate decision shall be taken before his retirement. However, no action was taken and the petitioner was informed in the last week of June, 1996 that his option papers are not traceable in the office of the respondent no. 1, therefore, he would retire on 30th June, 1996. Against this background, the petitioner, having no other option, preferred Civil Misc. Writ Petition No. 11827 of 1997 (Vishnu Sahai Srivastava v. District Inspector of Schools, Allahabad). This Court while disposing of said writ petition on 04th April, 1997 in terms of the judgement of this Court reported in (1997) 1 UPLBEC 51 (Awadhesh Pandey v. Deputy Director of Education, IVth Region, Azamgarh and others), directed the District Inspector of Schools to decide the representation of the petitioner in view of the said judgement.

In compliance of the order of this Court and relying upon the aforesaid judgement of this Court i.e. Awadhesh Pandey (supra), District Inspector of Schools considered the cause of the petitioner and vide order dated 19th July, 1997 found that in view of the petitioner's second option, he is entitled to continue in service upto the age of 60 years. A copy of the said order dated 19th July, 1997 has been brought on record as annexure-3 to the writ petition. Thereafter vide communication dated 26th July, 1997 the Principal of the institution was directed for compliance of aforesaid order dated 19th July, 1997. A copy of said order/ communication dated 26th July, 1997 is on the record as annexure-2 to the writ petition. It is stated that the petitioner was permitted by the Committee of Management to join the institution on 26th July, 1997 and he retired after attaining the age of 60 years on 30th June, 1998, but his salary was not paid from 01st July, 1996 to 25th July, 1997.

The dispute arose with regard to payment of his salary from 01st July, 1996 upto 25th July, 1997. The stand taken by the Committee of Management was that since there was no direction by the District Inspector of Schools for payment of petitioner's salary from 01st July, 1996 to 25th July, 1997, the petitioner is not entitled for salary on the basis of no work no pay.

The petitioner has made several representations to the District Inspector of Schools for payment of his salary from 01st July, 1996 to 25th July, 1997. After several representations, the District Inspector of Schools has passed the impugned order dated 02nd/05th June, 1998, whereby he has directed the Manager/Principal of the College that the said period may be treated as the petitioner was on leave and if petitioner's no leave is due, then said period may be treated as leave without pay. Aggrieved by this order, the petitioner has preferred this writ petition.

A counter affidavit has been filed on behalf of the respondent no. 1, District Inspector of Schools. In the counter affidavit it is stated that in compliance of the order of this Court dated 04th April, 1997 the representation of the petitioner was allowed and he was allowed to continue upto the age of 60 years and as the petitioner did not work from 01st July, 1996, when he was retired, till 25th July, 1997 when in compliance of the order of the District Inspector of Schools he was allowed to join, he was not entitled for the salary. It is also stated that as the petitioner's option to retire at the age of 60 years has been accepted, he is not entitled for the gratuity. Only those teachers are entitled for the gratuity who opt to retire at the age of 58 years.

Respondent nos. 2 and 3, i.e. Committee of Management and Principal of the institution, have also filed their counter affidavit, wherein it has not been denied that petitioner's second option for his retirement on attaining the age of 60 years was accepted and he retired at the age of 60 years.

I have heard Dr. H.N. Tripathi, learned Counsel for the petitioner, learned Standing Counsel for the respondent no. 1, and Sri Satish Kumar Rai, learned Counsel for the respondent nos. 2 and 3.

Learned Counsel for the petitioner submits that the petitioner had submitted his first option on 30th December, 1982 for retirement at the age of 58 years, but no communication was made regarding acceptance of the same. Thereafter in pursuance of the Government Order dated 06th October, 1990, which permitted the teachers to change their option, the petitioner submitted his second option on 14th December, 1990 to retire at the age of 60 years, which option of the petitioner was approved by the District Inspector of Schools. Even after the approval of the petitioner's second option, he was retired on 30th June, 1996. The petitioner immediately filed Writ Petition No. 11827 of 1997, which was finally disposed of by this Court on 04th April, 1997 and a direction was issued to decide the representation of the petitioner relying on a judgement of this Court. In compliance of the order of this Court, petitioner's representation was allowed and he was allowed to join on 26th July, 1997, therefore, he was entitled for the salary from 01st July, 1996 till 25th July, 1997, i.e. when he was allowed to join. Learned Counsel for the petitioner further submits that there was no fault on the part of the petitioner and as such, the petitioner is entitled for salary as well as all other benefits. Learned Counsel for the petitioner has placed reliance on the judgements of this Court in the case of Brijendra Prakash Kulshrestha v. Director of Education, U.P. at Allahabad & ors., 2007 (1) LBESR 538 (All), and Dr. Raj Kumari Singh and another v. State of U.P. and others, 2010 (3) ADJ 304 (DB) to establish that as the petitioner was not allowed to work, the principle of 'no work, no pay' shall not be applicable.

Learned Standing Counsel and Mr. Rai, learned Counsel for the respondent nos. 2 and 3, tried to support the stand of the respondents taken in the counter affidavit.

I have considered the respective submissions of the learned Counsel for the parties and perused the record.

In the case in hand, it is a common case that petitioner's second option has been accepted by the District Inspector of Schools in compliance of the order of this Court dated 04th April, 1997. The order of the District Inspector of Schools dated 19th July, 1997 allowing the petitioner's second option to retire at the age of 60 years has not been challenged by the Committee of Management and in compliance thereof, the petitioner was permitted to join on 26th July, 1997 and he served the institution till 30th June, 1998 when he attained the age of superannuation. A short question arose for consideration in this case is whether the petitioner is entitled for his salary from 01st July, 1996 to 25th July, 1997. From the materials on record it is established that there was no fault on the part of the petitioner. He had made several representations that in view of his second option he was entitled to continue till 30th June, 1998. However, the petitioner was illegally retired and removed on 01st July, 1996 on the ground that he has reached the age of superannuation on attaining the age of 58 years.

Pertinently, if the petitioner had retired at the age of 58 years, he would have entitled for payment of gratuity as the Government Order provides that a teacher who opts for retirement at the age of 58 years, will be paid gratuity but the teacher who opts for retirement at the age of 60 years, shall not be paid gratuity. Admittedly, the petitioner has not been paid gratuity as his option to retire at the age of 60 years has subsequently been accepted by the District Inspector of Schools.

The principle of 'no work no pay' has been considered by the Supreme Court in long course of decisions. The principle of no work no pay would not be applicable in those cases where the employee was not allowed to work although he was willing to work. Reference may be made to the judgements of the Supreme Court in the cases of Burn Standard Co. Ltd. v. Tarun Kumar Chakraborty, (2002) 10 SCC 585; Commissioner, Karnataka Housing Board v. C. Muddaiah, (2007) 7 SCC 689; and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others, Civil Appeal No. 6767 of 2013, decided on 12th August, 2013. In paragraph-17 of Deepali Gundu Surwase (supra) the Supreme Court held as as under:

"17. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance.

The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/ quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages.

If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."

This Court also in the case of Brijendra Prakash Kulshrestha (supra) has held that an employee is entitled for his full salary for the period he could not work on account of act of the respondents. In the said case also, the dispute was with regard to date of retirement and the employee in the said case was retired at the age of 58 years although he was entitled to work upto the age of 60 years. It is enough to extract only relevant part of the judgement of Brijendra Prakash Kulshrestha (supra), as under:

"35. In these facts and circumstances the appellant is entitled for arrears of salary for the period in question and with great respect to the Hon'ble Single Judge we are unable to agree with the judgment under appeal to this extent. Our view is fortified from the exposition off law laid down by the Apex Court in J.N. Srivastava (supra)1, Shambhu Murari Sinha (supra)2, Srikantha S.M. (supra)3 and Virender Kumar Goel (supra)4 as we have already discussed where in the case of retirement, the employee could not discharge any duty due to such retirement forced upon him by the employer the Apex Court has consistently held that such employee is entitled for full salary. Therefore in our view the appellant is entitled for arrears of salary for the period he could not work on account of act of the respondents i.e. from 1-7-1995 to 30-6-1997."

The facts of the present case are identical to the facts of the said case. In view of the law laid down by the Supreme Court and the Division Bench in Brijendra Prakash Kulshrestha (supra), the petitioner is entitled for his salary from 01st July, 1996 to 25th July, 1997 as there was no fault on the part of the petitioner and he, in spite of repeated representations, was retired on 30th June, 1996.

After careful consideration of the facts and circumstances of the case, for the aforestated reasons, I am of the view that end of justice would be subserved in case a direction is issued upon the respondent no. 1 to pay the salary of the petitioner from 01st July, 1996 to 25th July, 1997 within a period of three months from the date of communication of this order. In view of the above, the order/communication issued by the District Inspector of Schools dated 02/05th June, 1998, impugned in this writ petition, needs to be quashed and accordingly it is quashed.

Accordingly, the writ petition is allowed.

No order as to costs.

Order Date :- 03rd December, 2013.

SKT/-

Hon. Pradeep Kumar Singh Baghel, J.

The writ petition is allowed.

For orders, see my order of the date passed on the separate sheets (nine pages).

Dt.-03.12.2013.

SKT/-