Smt. Kewlapati vs U.P. Lok Sewa Adhikaran Indira ...
2017 Latest Caselaw 6735 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
RESERVED
 
Court No. - 7
 

 
Case :- SERVICE BENCH No. - 70 of 2015
 

 
Petitioner :- Smt. Kewlapati
 
Respondent :- U.P. Lok Sewa Adhikaran Indira Bhawan Lko. & Ors.
 
Counsel for Petitioner :- Paras Nath Singh
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Anil Kumar,J.

Hon'ble Daya Shankar Tripathi,J.

(As per Anil Kumar,J.)

Heard Shri Paras Nath Singh, learned counsel for the petitioner, Shri Pratyush Tripathi, learned Standing Counsel and perused the record.

Facts in brief of the present case as submitted by Shri Paras Nath Singh, learned counsel for the petitioner are that Smt. Kewlapati, widow of Shri Ram Dularey had filed a claim petition No.839/2007 "Smt. Kewalpati vs. State of U. P. & Ors." on the ground that the petitioner/Smt. Kewalpati, widow of late Shri Ram Dularey was appointed on compassionate ground on the post of Consolidation Peon by means of order dated 18.07.1988 passed by the Settlement Officer of Consolidation, Etawah. In the month of February, 2005, she was elected as the President of Class IV employee Union and an anonymous complaint was made against her.

Accordingly, in view of the Government Order dated 01.08.1997, preliminary enquiry was initiated against the petitioner and Assistant Consolidation Officer, Tarana-II, Varanasi was appointed as enquiry officer. Thereafter, the said authority had submitted an enquiry report to the appointing authority/opposite party no.3, on the basis of the said report, a charge sheet was issued to her on 25.02.2006 to which she replied on 30.03.2006. Again, she submitted a reply on 30.08.2006. After completing the domestic enquiry, although the same is not in accordance with law, enquiry officer had submitted his report on the basis of which show cause notice dated 04.10.2006 was issued to the petitioner to which she submitted her reply.

Opposite party no.3/Settlement Officer of Consolidation, Etawah, on 14.11.2006, passed the punishment order of dismissal of the petitioner from service along with forfeiture of the arrears of salary during the suspension period.

Aggrieved by the same, petitioner filed an appeal, rejected vide order dated 30.05.2007 passed by District Deputy Director of Consolidation/District Magistrate, Varanasi.

Aggrieved by the order dated 30.05.2007, petitioner filed a claim petition No.839 of 2007 before the State Public Services Tribunal, Lucknow (hereinafter referred to as Tribunal) and after exchange of the pleadings, the said claim petition was allowed by order dated 05.09.2011 by which the Tribunal has held that services of the petitioner shall be reinstated with all consequential service benefits but she would not be entitled for back wages from the date of his dismissal till the date of reinstatement.

Accordingly, the petitioner, for redressal of her grievances, approached this Court by filing the present writ petition.

The sole argument which has been raised by learned counsel for the petitioner/claimant is that once the Tribunal has found that there is no fault on the part of the petitioner and her services were dismissed is most illegal and arbitrary and the same also in accordance with principles of natural justice, then in that circumstances, there is no justification or reason on the part of the Tribunal thereby not giving the back wages from the date of her dismissal till the date of reinstatement. So the impugned judgment passed by the Tribunal may be set aside.

Learned Standing Counsel while defending the impugned judgment submits that the Tribunal has set aside the appellate order on technical ground and has only forfeited the back wages of the petitioner from the date of his dismissal till the date of reinstatement, so there is no illegality or infirmity has been done in the present writ petition, liable to be dismissed.

We have heard learned counsel for the parties and perused the record.

From the admitted facts of the present case, petitioner, who was working as Consolidation Peion was dismissed from her services by order dated 14.11.2006 and thereafter, appeal filed by her was dismissed on 30.05.2007, challenged by the petitioner by filing Claim Petition No.839/2007. By order dated 05.09.2011, the Tribunal has allowed the same and set aside the punishment order as well as appellate order. The tribunal also held that services of the petitioner shall be reinstated with all consequential service benefits but she would not be entitled for back wages from the date of her dismissal till the date of reinstatement.

From the material on record, the admitted position which emerges out is that the Tribunal has set aside the punishment order as well as appellate order on the ground that the enquiry conducted by the enquiry officer is in utter violation of principles of natural justice i.e. on technical ground, so as per settled proposition of law, the Tribunal should have remanded the matter to the punishing authority.

Moreover, in the present case, the controversy which is to be adjudicated is to the effect that whether the action on the part of the Tribunal thereby dis-entitling the petitioner for the back wages from the date of his dismissal till the date of reinstatement is correct or not ?

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. (See Sukhdeo Pandey v. Union of India, 2007 (7) SCC 455).

Hon'ble the Apex Court in the case of Commissioner, Karnataka Housing Board v. C. Muddaiah, 2007 (7) SCC 689, has held as under :-

"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 entirety 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, cannot 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)."

Hon'ble the Apex Court in the case of Union of India v. B. M. Jha, 2007 (12) Scale 630 after placing the reliance on the earlier judgment given in the case of State of Haryana v. D. P. Gupta (1996) 7 SCC 533, A. K. Soumini v. State Bank of Travancore, 2003 (8) JT 35 and State of Andhra Pradesh v. K. V. L. Narasimha Rao, 1999 (3) JT 205 held that arrears of salary cannot be granted to the respondent in view of the principle of ''no work no pay' in case of retrospective promotion. (See Saran Kumar Gaur & Ors. v. State of Uttar Pradesh & Ors., 1991 (5) SLR 92).

Hon'ble the Apex Court in the case of Union Territory Chandigarh vs. Brijmohan Kaur 2007 (11) SCC 488 held as under :-

"The direction of the Tribunal which is affirmed by the High Court, in our view, is against the old canons of law directed by this Court. It is settled law that when an incumbent does not discharge any duty, the principle of ''no work no pay' would be applicable. This consistent view has been taken by this Court keeping in view the public interest that any government servant who does not discharge his duty should not be allowed to draw pay and allowances at the cost of public exchequer. (See Union of India (UQI) and Ors. vs. Vijay Pal Singh 2010 (12) SCC 737).

Principle of ''no work no pay' has been recently reiterated by Hon'ble the Apex Court in the case of H. V. P. N. Limited and Ors. vs. Bal Govind (2017) 2 SCC 382.

In the instant matter, petitioner had been dismissed from her services and thereafter, appeal filed by him was also dismissed by order dated 30.05.2007. Against the same, he filed a claim petition before the Tribunal, which was allowed by order dated 05.09.2011 and the punishment order dated 30.05.2007 has been set aside by the Tribunal on the ground that there is violation of principles of natural justice in holding the domestic enquiry and reinstated the services of the petitioner with all consequential benefits but back wages was not given to the petitioner from the date of his dismissal till the date of reinstatement.

The said exercise of the Tribunal is perfectly valid as during the said period, petitioner had not worked, so he is not entitled for any salary for the said period on the principles of ''no work no pay'.

In view of the above said facts, We do not find any illegality or infirmity in the impugned judgment passed by the Tribunal under challenge in the present writ petition.

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

Order Date :- 13.11.2017

Mahesh