State Of U.P. Thru The ... vs R.K. Agrawal And Another
2017 Latest Caselaw 322 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 3							A.F.R.
 

 
Case :- SERVICE BENCH No. - 1345 of 2013
 

 
Petitioner :- State Of U.P. and another
 
Respondent :- R.K. Agrawal And Another
 
Counsel for Petitioner :- C.S.C.
 
Counsel for Respondent :- C.S.C.,Nandita Bharti
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Virendra Kumar-II,J.

1. Heard learned Standing Counsel appearing on behalf of petitioners and Ms. Nandita Bharti, learned counsel for claimant-respondent.

2. This writ petition is directed against judgment and order dated 30.08.2012 passed by State Public Services Tribunal, Lucknow (hereinafter referred to as ''Tribunal') in Claim Petition No.629 of 2009 whereby it has issued following directions :-

"In the light of the above observations, the reference petition is allowed. The impugned order dated 29.04.2008 is set aside to the extent it relates to denial of salary on the principles of ''no work no pay'. It is further provided that the petitioners shall be paid 25% for the period with effect from 30.08.1974 to 15.03.1995 and 100% of his pay entitlement for the period w.e.f. 16.03.1995 till the date of his superannuation with simple interest @ 8% p.a. from the date the amount fell due till the date of actual payment. Since the petitioner has already retired the retiral benefits shall be calculated on the basis of last pay correctly fixed and drawn by him.

The judgment and order shall be complied with within a period of 3 months from the date of receipt of a certified copy of this order."

3. Claimant-respondent was working as junior clerk in Harijan and Social Welfare Department having been appointed on 19.07.1958. He proceeded on leave on 16.05.1973 to 30.09.1974 but thereafter did not resume duty and remained absent. Secondly, when his appointment was treated to have ceased, claimant-respondent filed Claim Petition No.54/T/II/93 before Tribunal, which was allowed vide judgment dated 15.03.1995 and Tribunal passed following order :-

"The claim petition is allowed. The impugned order dated 30.8.1974 by which the services of the petitioner is ceased annexure-A to the claim petition is quashed. The opposite parties are directed to regularise the period of absence of the petitioner upto the date of reinstatement as per rules and government G.Os if the petitioner has not attained the age of superannuation. In case the petitioner has attained the age of superannuation then, they shall take a decision in connection with the regularization of the period of absence upto the age of his superannuation. Cost is however, made easy."

4. State did not comply with the said judgment and preferred Writ Petition No.4732 (S/B) of 1995, which was dismissed vide judgment dated 08.02.2008.

5. In the meantime, claimant-respondent prayed for arrears of salary for the entire period from 1974 till 2008, but same was denied on the ground of "no work no pay" vide order dated 29.04.2008. The aforesaid order was challenged in Claim Petition No.629 of 2009 and Tribunal after setting aside the same, has held, that principle of no work no pay is not applicable. It has allowed arrears of salary by holding that "petitioners shall be paid 25% for the period with effect from 30.08.1974 to 15.03.1995 and 100% of his pay for the period w.e.f. 16.03.1995 till the date of his superannuation with simple interest @ 8% p.a. from the date the amount fell due till the date of actual payment".

6. When an employee is not allowed to work due to fault of State and its authorities, such person is entitled for salary for the period he has not been allowed to work. The principle of "no work no pay" will not apply to this case. This Court in Brijendra Prakash Kulshrestha Vs. Director of Education & others 2007 (3) ADJ 1 (DB) has considered applicability of "no work no pay" and it has been held that an employer cannot deny salary to an employee, who is always willing and ready to work but was not allowed to do so by an act or omission directly attributable to employer.

7. In Bhanu Pratap Vs. Director, Ayurvedic and Unani Sewae, U.P. Lucknow & Ors., 2011 (11) ADJ 606 this Court said:

"9. This Court is of considered view that dismissal of petitioner from service having been found wholly illegal, and it is also having been seen that he was denied work on the post in question by employer in a wholly illegal manner, petitioner should be given relief of reinstatement with all consequential benefits including arrears of salary. This would be in consonance with the principle that an employee has 'no right to work' but only right to claim salary. In absence of anything to show that employee himself was unwilling to work, principle of "No Work No Pay' ought not to be applied in such a case. Such a principle in a case like this, if applied, would amount to confer a premium upon employer to enjoy benefit of a fault of his own. This would amount to allowing him (employer) to take advantage of his own wrong, which is not permissible in law particularly in a court of equity and justice. It is against all canons of justice."

8. Recently also similar issue has been considered in Deepali Gundu Surwase Vs Kranti Junior Adhyapak Mahavidyala (D.Ed.) and others, (2013) 10 SCC 324. Therein Court has observed:

"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. The family may have to borrow from relatives etc. 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 competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires, relevant statutory provisions or principles of natural justice, entitles the employee to claim full back wages. If 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 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."

9. The aforesaid view has been referred and followed more recently in Raj Kumar Vs Director of Education and others, 2016(6) SCC 541.

10. Here is also a case which does not justifiably attract principle of "no work no pay" for the reason that claimant-respondent has been made to suffer by a total illegal, arbitrary and unjust action on the part of State's authorities.

11. Learned Standing Counsel contended that relief of arrears of salary was not granted vide earlier judgment dated 15.03.1995 passed in Claim Petition No.54/T/II/93, hence, arrears of salary from the period 30.08.1974 to 15.03.1995 could not have been allowed in a fresh Claim Petition, filed by claimant-respondent as it is barred by Order 2, Rule 2 in view of law laid down in Union of India Vs. Punni Lal, JT 1996 (9) SC 740. He further contended that even for the period from 16.03.1995, arrears of salary ought not to have been granted and even grant of interest of 8% p.a. is illegal.

12. Learned counsel appearing on behalf of claimant-respondent sought to support judgment of Tribunal for the reasons stated therein.

13. So far as arrears of salary for the period 30.08.1974 to 15.03.1995 is concerned, we find substance in the submission of learned Standing Counsel that in the earlier claim petition, no such relief was granted, hence, it was barred by Order 2, Rule 2 in view of law laid down in Punni Lal (supra), therefore, to this extent, judgment of Tribunal, impugned in this writ petition, cannot be sustained.

14. Now, coming to second part i.e. arrears of salary from 16.03.1995 onwards, learned Standing Counsel could not dispute that despite judgment of Tribunal passed in favour of claimant-respondent, it was not complied with. Claimant-respondent was not allowed to join duty and discharge his functions, hence, claimant-respondent was deprived of discharging his duties not for any fault on his part, but due to fault of petitioners. That be so, in our view, petitioners cannot take advantage of their own wrong. In these circumstances, principle of "no work no pay" is not applicable.

15. Learned Standing Counsel has submitted that Tribunal has also allowed interest @ 8% per annum on the arrears of salary, though there is no provision under which interest is payable and there was no deliberate and intentional default on the part of petitioner.

16. With regard to interest, learned counsel appearing for claimant-respondent when questioned could not dispute that there is no provision under which such interest can be claimed. He however, submits that interest can be allowed, if delay for payment of arrears on the part of employer is without any reason and arbitrary. This question has been examined in Union of India and others Vs. Dr. J.K. Goel 1985 Supp. (3) SCC 161, wherein Court has held that interest on arrears of salary is not payable unless there is provision providing for payment of such interest. It further held that in case there are special equity showing that payment of arrears of salary was deliberately denied and the incumbent was put to loss on account of some bias or mala fide, in such cases, interest may be allowed. Relevant extract is reproduced as under:

"In these circumstances we have to examine whether the order of the Tribunal granting interest @ 12% per annum to the respondent for the period January 1986 to March 1992 can be upheld. In the first place, there is no provision of law under which such interest can be granted. Learned advocate for the respondent, however, has contended before us that on equitable considerations, the Tribunal has granted interest @ 12% per annum to the respondent and we need not interfere with discretion exercised by the Tribunal in this regard. But looking to the facts and circumstances of the present case, we cannot accept the submission made by learned advocate for the respondent. Before any interest can be granted on equitable considerations, it is necessary that the facts of the case should be examined to ascertain whether there are they special equities which would justify the grant of such interest although there is no provision in law for such grant."

(emphasis added)

17. Following Dr. J.K. Goel (supra) a Division Bench of this Court in which one of us (Sudhir Agarwal, J.) was also a member in Civil Misc. Writ petition No. 4370 of 2003 (Dr. Raj Kishore Singh Vs. Director of Education (Higher), U.P. and others) decided on 30.3.2006 and another Division Bench in Civil Misc. Writ Petition No.69719 of 2006 (Harnand Singh Vs. State of U.P. and others) decided on 02.05.2014, has taken the same view.

18. Therefore, to this extent, we are of the view that Tribunal has rightly allowed payment of arrears of salary from 16.03.1995 onwards till retirement of claimant-respondent. The third aspect with regard to interest is concerned, we find substance in the submission of learned Standing Counsel that in absence of any provision for payment of interest on arrears of salary, the same cannot be sustained. It is also not disputed that claimant-respondent has already retired, therefore, remaining part of direction of Tribunal regarding retiral benefits available to claimant-respondent are liable to be sustained.

19. In the result, writ petition is partly allowed and direction of Tribunal in impugned judgment dated 30.08.2012 with regard to payment of arrears from 30.08.1974 to 15.03.1995 and payment of interest @ 8% p.a. is set aside. Rest of judgment is confirmed.

Order Date :- 9.5.2017

Chitranjan