Ram Pal S/O Sri Teja vs State Of U P Thr.Secy.Govt.Of U P ...
2013 Latest Caselaw 2711 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 6
 

 
Case :- SERVICE SINGLE No. - 3802 of 2010
 

 
Petitioner :- Ram Pal S/O Sri Teja
 
Respondent :- State Of U P Thr.Secy.Govt.Of U P Lok Nirman & 4 Ors.
 
Petitioner Counsel :- R B Srivastava,D P Gupta
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Shabihul Hasnain,J.

Heard Sri R.B. Srivastava learned counsel for the petitioner and learned Standing Counsel for the opposite parties.

Petitioner has prayed for a writ in the nature of certiorari quashing the letter no. 74/Camp./ST-M-8/1998 dated 3.11.1998, as contained in Annexure no. 7 to the writ petition.

The claim of the petitioner for arrears of salary for the period he has not worked has been rejected by this order. It is necessary for the proper adjudication of the case that some facts may be narrated.

The petitioner was appointed as 'Beldar' under the Executive Engineer, Provincial Division, Lok Nirman Vibhag, Fatehpur in the year 1968. Petitioner is an illiterate person. He has submitted that when his service book was prepared in 1972 his case was referred to the medical authority for verification of his date of birth. Petitioner says that his age was verified as 16.9.1938 but somehow it was entered in the service book as 16.9.1928. Therefore, the petitioner who

ought to have been retired on 30.9.1998 was retired on 30.9.1988 after attaining the age of 60 years.

When the petitioner was retired he realized that he has been retired ten years earlier than his actual date of retirement. Petitioner field a Claim Petition No. 442/F/IV/90 ( Ram Pal vs. State of U.P. & others) before the U.P. Public Services Tribunal which was finally decided on 12.4.1994 in favour of the petitioner The order passed by the tribunal is being quoted herein below:

";kfpdk Lohdkj dh tkrh gSA izfri{k dks ;g funsZ'k fn;s tkrs gS fd 1938 dks ;kph dh tUefrfFk ekurs gq, muds lsokfuo`fRr ij fopkj djsaA vkSj 1928 ds vk/kkj ij lsokfuo`fRr ds vkns'k lekIr fd;s tkrs gSA mHk; i{k viuk&viuk okn O;; Lo;a ogu djsaxsA"

In compliance of the tribunal's order dated 12.4.1994 the petitioner was allowed to join his duties on 19.5.1994. Petitioner made a claim for payment of salary for the intervening period i.e. from 1.10.1988 to 18.5.1994. Initially the opposite parties were of the view  that the payment for intervening period should be made to the petitioner but later on they took u-turn and did not make the payment. State also filed writ petition no. 2237(S/S) of 1997 ( State vs. Ram Pal) by the State of U.P. against the order of tribunal was rejected by the High Court. The petitioner ultimately retired on 30.9.1998. The crucial question engaging the attention of

this court in this writ petition is whether a person who has not worked during the period he was not in service will be entitled for salary of that period or not. In the present case the petitioner was illegally retired in the year 30.9.1998. He went into litigation and was finally reinstated on 19.5.1994 in pursuance of the tribunal's order. He successfully worked

till the age of superannuation and finally retired in the year 1998. Petitioner claims that since he was illegally removed from service and he was willing to work, hence he should be given the salary of the said period in which he was not allowed to work and earn wages for his family by the illegal act / mistake of the department. Petitioner has relied upon following judgments :

i. 1994 HVD (Alld.) Vol. 1 85 ( Gulab Chandra Srivastava vs. State of U.P. & others).

"4. It is clear from perusal of the affidavits filed by the parties that neither the petitioner's appointment was challenged nor was he a party in those petitions and further that his appointment order as A.D.G.C. has not been set aside so far by any Court. That apart, even the Government has not cancelled his appointment. Explanation offered in the counter affidavit to the effect that in view of judgment in the aforesaid writ petitions the petitioner was not permitted ot work, is unsustainable. When his appointment -4-

has neither been set aside nor cancelled by the court or Government it was incumbent on the respondents to permit him to work. But as the period for which the petitioner was appointed has come to an end on 30.11.1993 no direction can be given to the respondents to permit him to work as A.D.G.C. But he is entitled to get amount of retainer-ship at the prescribed rate. When employee is willing to work but he is not permitted to do so by the employer without any fault on the part of the employee is entitled to to the payment of salary by the employer and the principle of 'no

work no pay' does not apply to such a case. This principle is fully applicable to the instant case. The respondents, as such, should pay to the petitioner retainer-ship at the prescribed rate."

ii. L.C.D. 1996 (14) 360 ( Ajab Singh vs. U.P. State Public Services Tribunal.

"No counter affidavit has been filed till today, i.e. 9.1.1996. In my view, it is settled law that if the termination order is set aside by a court of law, the employee is entitled for the salary and allowances for the intervening period. In the present case, termination order of the petitioner has been set aside by State Public Services Tribunal by itws judgment and order dated 16.12.1993. It has been held by the Tribunal that :-

"............It is clear from the record that no show cause notice was given to the petitoner nor any opportunity was

given to explain his position. In these circumstances, it is clear that the order of cessation of services of the petitioner was wholly illegal and is not sustainable in the eyes of law.

The petitioner is not in service since 1980. He shall be deemed to be in continuous service as the order of cessation of service is liable to be quashed."

iii. (2003) 21 LCD 610 ( Radhey Kant Khare vs. U.P. Coop. Sugar Factories Federation Ltd.

"In our opinion the appellant was not given proper opportunity of hearing and no oral enquiry as required by law was held. Hence, the dismissal order dated 26.7.1985 is wholly illegal and is hereby quashed. The judgment of the

learned Single Judge dated 11.10.1999 is also set aside. The petition is allowed. The petitioner shall be reinstated forthwith. The normal rule is that when the dismissal order is set aside reinstatement with full back wages has to be granted vide Kesoram Cotton Mills v. Gangadhar 1963 II LLJ 371 (SC), M.L. Bose v. Its Employees AIR 1961 SC 1178 etc. We direct that the petitioner shall be reinstated within a month of production of a certified copy of this order before the authority concerned, and he must be given full back wages from 26.7.1985 i.e. the date of dismissal to the date of reinstatement in two months from today along with interest at 10% per annum."

iv.(2007) 7 Supreme Court Cases 689 ( Commissioner,

Karnataka Housing Board v. C. Muddaiah.

"34. We are conscious and mindful that even in absence of statutory provision, normal rule is "no work no pay". In appropriate cases, however, a court of law may , nay must, take into account all the facts in their entirely and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering " as if he had worked". It, therefore, can not be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country ( as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected."

v. (2009) 2 Supreme Court Cases 570 (Roop Singh Negi vs. Punjab National Bank & others).

"24. For the aforementioned reasons, the judgment of thee High Court is set aside. The appeal is allowed with costs and the appellant is directed to be reinstated with full back wages. Counsel's fee assessed at Rs. 25,000/-."

In view of the several judgments mentioned above the court is of the considered view that the petitioner was

illegally retired. He was working with unblemished career. He was willing to work but was denied to perform duties by the opposite parties-State. He was fit to work is also clear by the fact that when he was allowed to join after six years he performed his duties till his age of superannuation. He was deprived of work and consequent salary because of the mistake of the department. Petitioner can not be held responsible for the same. The petitioner deserves to get the salary of the period claimed i.e. from 1.10.1988 to 18.5.1994 on the scale which would have been applicable to him had he been continued in service, however, without any interest. It is ordered accordingly.

Writ Petition is allowed.

Order Date :- 24.5.2013/Om.