Radhey Shyam Tewari S/O Late Mata ... vs Union Of India Thru Secretary ...
2013 Latest Caselaw 2 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 
Court No. - 18
 
Case :- SERVICE SINGLE No. - 1791 of 2010
 
Petitioner :- Radhey Shyam Tewari S/O Late Mata Dayal
 
Respondent :- Union Of India Thru Secretary Home, New Delhi
 
Petitioner Counsel :- Ashok Shukla,Alok Singh Chauhan
 
Respondent Counsel :- A.S.G.,I.H. Farooqui
 

 
Hon'ble Anil Kumar,J.

Heard Shri Shishir Tiwari, learned counsel for the petitioner, Shri I. H. Farooqui, learned Assistant Solicitor General of India and perused the record.

Petitioner appointed on 6.5.1988 as constable driver in C.R.P.F.. While he was working and discharging his duties, by order dated 9.2.1989, his services were terminated on the ground that he is suffering with disease/colour blindness, so unable to discharge his duties.

Aggrieved by the same, he preferred representation/appeal before the opposite party no.2/Inspector General of Police, B.S., C.R.P.F., Patna-14, rejected by order dated 24.2.1995.

Thereafter, petitioner approached this Court at Allahabad by filing Writ Petition No.1769 (SS) of 1996 "Radhey Shyam Tewari vs. Union of India and Ors.". Subsequently, transferred to Lucknow re-numbered as a Writ Petition No.6422 (SS) of 2002, allowed by judgment and order dated 6.1.2009, the relevant portion is quoted herein below:-

It is relevant to mention that the Economic and Social Commission for Asian and Pacific Region convened a meeting at Beijing in December 1992 to launch the Asian and Pacific Decade of Disabled persons 1993-2002. In that meeting the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region was adopted. India being a signatory to the above said Proclamation, the Government of India enacted an Act known as "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995". Chapter VIII of the Act deals with the Non-Discrimination. Section 47 deals with the Non-Discrimination in Government employment and reads as under :

"47. Non-discrimination in Government employment's.- (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service.

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay-scale and service benefits :

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability;

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

From the perusal of the aforesaid provisions, it is abundantly clear that the establishment is not vested with the power to discharge a person on account of disability. On the other hand, a duty has been cast upon the employer/establishment to shift a person from the post for which he is not suitable on account of disability to a non-significant post. It may be pointed out that it is not the case of the respondent that the CRPF is an exempted establishment and the provisions of 1995 Act are not applicable upon them.

At this juncture, it would be useful to refer the case of Nandkumar Narayan Rao Ghodmare vs. State of Maharashtra and others [1996 (1) ESC 210 SC], wherein the appellant was selected in the PCS Cadre but on account of being handicapped because of Colour Blindness, the appointment was not given. The matter went to the Supreme Court and the Hon'ble Supreme Court after considering the facts directed the concerned Government to give appointment to the appellant on other Class-II post.

In another case i.e. Narendra Kumar Chandla vs. State of Haryana and others [1994 (4) SCC 460], the Hon'ble Supreme Court, while considering the affliction of an employee with a disease during service, laid down as under :

"......Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which when he is unable to perform the duties of the post he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties........"

A perusal of the records shows that the Director General, CRPF has issued an order dated 11.6.1997 under the heading "Adjustment/Disposal of the affected serving personnel", which entails that the Drivers recruited before 2.12.1994 and found suffering from Colour Blindness be transferred to GD Cadre, where they will perform the duties. The petitioner was recruited on 6.5.1988, therefore, his case should have been considered under Paragraph-7, 2 (b) (ii) of the Recruitment Manual.

Taking the holistic view of the matter, I am of the opinion that the notice dated 9.1.1989 suffers from legal infirmities and is accordingly quashed. The respondents are directed to consider the case of the petitioner for appointment on any alternative post where the colour blindness may not be an impediment in discharge of duties, in light of the Circulars and the observations made herein above within a maximum period of three months from the date of production of a certified copy of the order. "

As per the direction given by this Court, the case of the petitioner was considered by opposite party no.3/Commandant, 94th Battalion C.R.P.F., Bawana New Delhi-39 by means of the order dated 6.8.2009, the relevant portion is quoted herein below:-

"However, in order to implement judgment dated 6.1.2009 passed by Hon'b'e High Court of Allahabad i.e. Lucknow Bench and since the Constable Driver is suffering from defective colour vision and physical unfit to drive Motor Transport Vehicle, the said individual is hereby re-instated in service in CRPF as Constable General Duty from the date of his reporting unit for duty by transferring him into GD cadre from MT cadre.

Consequent on his re-instatement, the period between date of termination of his service and date of re-instatement will be regularized as duty for purpose of pension in terms of rule 25 of CCS (Pension) Rules, 1972 but he will not be entitled for any pay and allowances for that period on the principle of 'No Work No Pay'.

However, in the light of instruction given in Standing Order No.4 of 2008 further course of action from invalidation from service will be taken by unit as soon as the Constable rejoins duty in CRPF as a result of his re-instatement in service."

In the instant petition, petitioner has challenged the order dated 6.8.2009 thereby denying him the pay and allowances for the period between termination of the petitioner's service and reinstatement in service i.e. 9.2.1989 to 6.8.2009.

Shri I. H. Farooqui, learned Assistant Solicitor General of India raised a preliminary objection that this Court sitting at Lucknow has got no jurisdiction to entertain the matter, as no cause of action whatsoever has been arisen on the part of the petitioner before this Court sitting at Lucknow so the present petition is liable to be dismissed on the ground of want of territorial jurisdiction in view of the Full Bench Judgment in the case of Rajendra Kumar vs. Union of India (UOI) and Ors. (2005) 1 UPLBEC 108.

In rebuttal, learned counsel for the petitioner submits that the objection raised by learned counsel for the respondent is wholly misconceived as in the present case, the part of cause of action has arisen to the present writ petition before this Court at Lucknow because the impugned order dated 6.8.2009 has been passed as per the direction given by this Court at Lucknow by judgment and order dated 6.1.2009 in Writ Petition No.6422 (SS) of 2002 filed by the petitioner.

In order to decide the point in issue, the first question which is to be decided considered is that what is the meaning of the word "cause of action",

Hon'ble the Supreme Court in the case of Navinchandra N. Majithia v. State of Maharashtra and Others AIR 2000 SC 2966 while interpreting the provisions of clause (2) of Article 226 of the Constitution of India held as under:-

"In legal parlance the expression 'cause of action' is generally understood to mean a situation or State of facts that entities a party to maintain an action in a Court or a Tribunal; a group of operative facts giving rise to one our more basis for suing; a factual situation that entitles one person to obtain a remedy in Court from another person............'Cause of action is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment......the meaning attributed to the phrase 'cause of action' in common legal parlance is existence of those facts which give a party a right to judicial interference on his behalf."

Thus, a 'cause of action' is the bundle of facts which taken, with law applicable, gives the plaintiff a right to relief against the defendant, and it must include some act done, in the instant case, the impugned order dated 6.8.2009 was passed by opposite party no.3 in pursuance of the direction given by this Court by judgment and order dated 6.1.2009. As such the part of cause of action has been arisen within the territorial jurisdiction of this Court sitting at Lucknow on the basis of which the petitioner can challenge the impugned order before this Court, so preliminary objection raised by Shri I. H. Farooqui, learned Assistant Solicitor General of India has got no force, rejected.

Further, as per the admitted position, by means of the order dated 9.2.1989, service of the petitioner from the post of constable driver was terminated on the ground that he is suffering with disease/colour blindness, not suitable for his job. Thereafter, the appeal filed by him was also dismissed. Subsequently, in pursuance of the direction given by this Court by judgment and order dated 6.1.2009 in Writ Petition No.6422 (SS) of 2002, an order dated 6.8.2009 was passed by opposite party no.3 by which petitioner has been re-instated in service, but pay and allowances for the period between termination of his service and reinstatement in service i.e. 9.2.1989 to 6.8.2009 was not given in terms of the principle of 'No Work No Pay'.

Learned counsel for the petitioner, while challenging the impugned order by which the petitioner has been denied the salary for the period of 9.2.1989 to 6.8.2009 submits that for the said period, he was not allowed to work and discharge his duties without any fault on his part, rather his services were terminated, incorrect and wrong pretext contrary to law. Subsequently, in the said matter, as per direction given by this Court by judgment and order dated 6.1.2009 in Writ Petition No.6422 (SS) of 2002, he has been re-instated in service, so the petitioner is entitled for the salary for the said period. In support of his argument, learned counsel for the petitioner has placed reliance in the case of Narendra Kumar Chandla vs. State of Haryana and others (1994) 4 Supreme Court Cases 460 and State of Kerala and others vs. E. K. Bhaskaran Pillai (2007) 6 Supreme Court Cases 524.

Accordingly, he submits that the action on the part of the opposite party no.3 thereby denying the pay and allowances to the petitioner for the period between 9.2.1989 to 6.8.2009, on the principle of 'No Work No Pay' is an illegal exercise, liable to be set aside.

Shri I. H. Farooqui, learned Assistant Solicitor General of India, on the other hand, submits that admittedly, petitioner has not worked for the period for which he is claiming the salary etc. and in view of the judgment and order dated 6.1.2009 passed in Writ Petition No.6422 (SS) of 2002, he was reinstated in service with the condition as mentioned herein. Hence, the relief as claimed by him cannot be granted, the present writ petition is liable to be dismissed. In support of his submission, he placed reliance in the case of State of U.P. and another vs. Mahindra Nath Tiwari (2010) 2 Supreme Court Cases 252.

I have heard learned counsel for the parties and gone through the records.

As per the undisputed facts, the service of the petitioner was terminated by order dated 9.2.1989 on the ground that he is suffering with disease/colour blindness, unable to perform his duties on the post of Constable Driver in C.R.P.F. Subsequently, the said order was also affirmed by the appellate authority. Thereafter, for redressal of his grievances, he approached this Court by filing Writ Petition No.6422 (SS) of 2002, allowed by order dated 6.1.2009 with a direction for taking the holistic view of the matter and accordingly after quashing the order dated 9.2.1989, the respondents are directed to consider the case of the petitioner for appointment on any alternative post where the colour blindness may not be an impediment in discharge of duties.

In pursuance of the said direction, an order dated 6.8.2009 passed by opposite party no.3 thereby re-instating the petitioner in service and further directing that he is not entitled for the salary for the intervening period i.e. from the date of his termination and reinstatement in service i.e. 9.2.1989 to 6.8.2009, but the said period will be regularized as duty for the purpose of pension in terms of Rule 25 of CCS (Pension) Rules, 1972.

Principles of "No work No pay" has been interpreted by Hon'ble the Supreme Court in the case of State of Kerala and others vs. E. K. Bhaskaran Pillai (2007) 6 Supreme Court Cases 524 as under:-

" Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15.6.1972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ramkrishnaiah & Ors. Vs. Union of India & Anr. [(1989) 2 SCC 541], Virender Kumar, G.M., Northern Railways Vs. Avinash Chandra Chadha & Ors.[ (1990) 3 SCC 472] , State of Haryana & Ors. Vs. O.P. Gupta & Ors. [ (1996) 7 SCC 533], A.K. Soumini Vs. State Bank of Travancore & Anr.[ (2003) 7 SCC 238] and Union of India & Anr. Vs. Tarsem Lal & Ors. [ (2006) 10 SCC 145]. As against this, the learned counsel for the respondent has invited our attention to the decisions given by this Court in Union of India & Ors. Vs. K.V. Jankiraman & Ors.[ (1991) 4 SCC 109], State of A.P. Vs. K.V.L. Narasimha Rao & Ors.[ (1999) 4 SCC 181], Vasant Rao Roman Vs. Union of India & Ors. [1993 Supp. (2) SCC 324] and State of U.P. & Anr. Vs. Vinod Kumar Srivastava [(2006) 9 SCC 621]. We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before Court or Tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the Court may grant sometime full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard and fast rule. The principle 'no work no pay' cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also."

Hon'ble the Supreme Court in the case of State of U.P. and another vs. Mahindra Nath Tiwari (2010) 2 Supreme Court Cases 252 held that if the person has not worked, then he is not entitled the salary/back wages for the period for which he has not worked.

Hon'ble the Supreme Court in the case of Sukhdeo Pandey vs. Union of India and another (2007) 7 Supreme Court Cases 455 held that we, therefore, hold that if the appellant has not worked, he will not be paid salary for the period for which he has not worked. It is well-settled principle in service jurisprudence that a person must be paid if he has worked and should not be paid if he has not. In other words, the doctrine of "no work, no pay" is based on justice, equity and good conscience and in absence of valid reasons to the contrary, it should be applied.

Thus, taking into the view the abovesaid proposition of law, as in the present case, the service of the petitioner has been terminated by order dated 9.2.1989 from the post of Constable Driver on the ground that he is suffering from colour blindness, so unable to perform his duties as per the rules, thereafter, as per the direction given by this Court by judgment dated 6.1.2009 in Writ Petition No.6422 (SS) of 2002, the impugned order dated 6.8.2009 was passed by opposite party no.3 that the petitioner is not entitled for any pay and allowances for the period between 9.2.1989 to 6.8.2009 on the principle of 'no work no pay' but the said period will be regularized in his duties for the purpose of pension in terms of Rule 25 of CCS (Pension) Rules 1972. Hence, there is no illegality or infirmity in the same.

In the result, the writ petition lacks merit and is dismissed.

No order as to costs.

Order Date :- 22.03.2013

Mahesh