Lallan Pathak vs State Of U.P. And 4 Others
2018 Latest Caselaw 4198 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 35
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 916 of 2018
 
Appellant :- Lallan Pathak
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Appellant :- Vinay Kumar Srivastava,Abhishek Srivastava,Tanu Roopanwal
 
Counsel for Respondent :- C.S.C.,Deo Dayal
 

 
Hon'ble Bharati Sapru,J.

Hon'ble Saurabh Shyam Shamshery,J.

{Delivered by: Hon'ble Saurabh Shyam Shamshery, J.}

Heard Sri Vinay Kumar Srivastava, learned counsel for the appellant and learned Standing Counsel for the State.

Cause shown in the affidavit filed in support of the application under Section 5 of the Limitation Act is sufficient, therefore, the delay in filing the special appeal is hereby condoned.

Application is allowed.

Office is directed to allot regular number to the present special appeal.

The appellant was working as an Assistant Science Teacher in Junior High School, Niyamabad, District-Varanasi.

It appears that the appellant was awarded ten years imprisonment on 23.11.1970 by the Additional Sessions Judge-III, Varanasi for an offence u/s 307 of IPC. In the appeal to such conviction, High Court vide order dated 9.10.1973 had upheld the conviction but reduced the sentence to seven years imprisonment. Later on, the appellant was granted probation by the Governor of Uttar Pradesh on April 9, 1976. The appellant remained continuously languished in jail from 15.11.1973 to 6.4.1976. For this period, the appellant remained absent from his duties without any information.

The appellant after released from jail approached to the District Basic Education Officer, Varanasi to join his services at Junior High School, however, according to his case, he was not allowed to join.

This lead to filing of Claim Petition No.526 of 1977 before the U.P. Public Services Tribunal No.1, Lucknow by the appellant seeking following reliefs:-

"v& ;g fd LFkk;h fu"ks/kkKk }kjk izfroknhx.k dks nftZr fd;k tkos fd os oknh dks iz/kku v/;kid ds in ij tqfu;j gkbZLdwy eoS;k ftyk okjk.klh esa dk;Z djus rFkk leqfpr oS/kkfud osru o vU; lafo/kk ls ykHk ysus esa voS/kkfud ck/kk u MkysA

c& ;g fd oknh dks fuEukafdr /kujkf'k dk Hkqxrku izfroknh x.k ls djk fn;k tkosA

l& ;g fd vU; vko';d ,oa ;Fkksfpr vuqrks"k dh vkKk fir ,oa vkKk oknh ds i{k rFkk izfroknh x.k ds foi{k esa nsus dh d`ik dh tkosaA"

After hearing the submissions of the parties, the Tribunal vide order dated 29.11.1980, dismissed the claim petition by observing that:-

"Now coming to the merits of the case, we find that the petitioner was convicted for an offence under section 307 IPC which involves attempt to murder and in that attempt had caused serious injurities. His sentence for 7 years R.I. was even maintained by the Hon'ble High Court. Such offence involved moral turpitude. It clearly appears that the petitioner remained in jail in connection with his aforesaid conviction for a number of years and according to the assertions of the opposite parties, he remained absent from his duties without any intimation or leave. Thus we are of opinion if after such conviction and undergoing imprisonment for such a long period, the petitioner find himself out of job from the present post then the principles of natural justice do not require any sympathy. The rulings cited on behalf of the petitioner, in our view, do not strictly apply to the fact of the present case. In our view, there are no good ground on which this claim petition could be allowed or the petitioner could be treated on duty, to be entitled for arrears and the amount claimed. Thus, this claim petition has no force and is fit to be dismissed."

The appellant challenged the order dated 29.11.1980 before this Court in Civil Misc. Writ Petition No.2788 of 1981, whereby vide order dated 6.11.1989, writ petition was allowed and order dated 29.11.1980 was quashed. The learned Single Judge held that :-

"For the reasons, the writ petition is allowed, the Tribunal's order dated 29.11.1980, Annexure 7 to the writ petition is quashed and the respondents no.2 and 3 are directed not to prevent the petitioner from resuming the charge of the post of Assistant Teacher in the concerned-institution. On the facts and circumstances of the case, there will be no order as to costs."

In compliance of the above mentioned directions, the District Basic Education Officer vide order dated 21.3.1990, permitted the appellant to join the service at Junior High School, Niyamabad, Varanasi w.e.f. 27.11.1989, without granting directions to grant salary for the period from 12.4.1976 to 26.11.1989. It is on record that the order dated 21.3.1990 was never challenged by the appellant and, has therefore attained finality. The order states that:-

"ekuuh; mPp U;k;ky; bykgkckn ds vkns'k fnukad 6-11-8 ,oa ml ij izkfIr Jh ds0 ,l0 'kqDyk vLFkkbZ vf/koDrk ekuuh mPPk U;k;ky; bykgkckn ds fof/k o ijke'kZ fnukad 6-3-90 ds vk/kkj ij Jh yYYku ikBd HkwriwoZ lgk;d v/;kid tw0 gk0 eoS;k fodkl {ks= pfd;k] okjk.klh dks muds iwoZ in lgk;d v/;kid tw0 gk0 Ldwy eoS;k fodkl {ks= pfd;k] okjk.klh esa dk;ZHkkj xzg.k dj dk;Z djus dh vuqefr iznku dh tkrh gSA pwWfd Jh ikBd us ekuuh; mPp U;k;ky; bykgkckn ds vkns'k fnukad % 6-11-89 ds ifjikyu esa viuh mifLFfr dh lwpuk bl dk;kZy; esa fnukad% 27-11-89 dks nh Fkh vr% mUgsa fn 27-11-89 ls mifLFkr ekuk tk;sxkA vkSj mUgsa fnukad% 27-11-89 ls osru vkfn dk Hkqxrku ns; gksxkA"

The appellant in second round of litigation filed Civil Misc. Writ Petition No.3114 of 2000 before this Court with the following prayer:-

"a suitable writ, order or direction in the nature of mandamus commanding the respondents to act strictly in accordance with the spirit of judgment and order dated 6.11.1989 passed by this Hon'ble Court and pay all arrears of rate of 18 % per annum for illegally withholding payment of the same for all these years"

The said writ petition was disposed of vide order dated 18.8.2008 with the following operative order :-

"A perusal of the judgment and order dated 6th November 1989 shows that there is no direction for payment of salary to the petitioner from 12th April, 1976 and nor is there any direction to treat the petitioner in service from the date. The only direction that has been issued is not to prevent the petitioner to resume the charge of the post of Assistant Teacher. The respondents have accordingly permitted the petitioner to resume his charge of the post of Assistant Teacher from 27th November, 1989. In-fact the judgment and order dated 6th November 1989 also records that the petitioner had remained on leave without pay upto 30th November, 1973 and from 1.12.1973 he remained on leave without pay for indefinite period. The question as to whether the petitioner should have been permitted to resume duties w.e.f. 12th April, 1976 was in issue in Writ Petition No.2788 of 1981 which was decided on 6th November 1989 but such relief was not granted by this Court. This relief, therefore, cannot be granted in this subsequent petition. However, as the Basic Shiksha Adhikari in the communications dated 21st March, 1991 and 2nd November 1992, copies of which annexed as Annexures-4 and 5 to the writ petition, has observed that the petitioner would be entitled to salary from 27th November, 1989, the petitioner may make a representation to the Basic Shisha Adhikari for payment of salary from 27th November 1989, if such salary has not been paid to the petitioner and if such a representation is made, the Basis Shiksha Adhikari shall pass an appropriate order in accordance with law after examining the records expeditiously, preferably within a period of two months from the date of a certified copy of this order is filed by the petitioner before the Basis Shiksha Adhikari.

The writ petition, is accordingly, disposed of "

Consequently to the order dated 18.08.2008, the appellant approached the concerned authorities with his representation dated 22.12.2008. However, the said representation was dismissed by a reasoned order dated 21.3.1990 passed by the District Basic Education Officer and his prayer for granting salary w.e.f. 12.4.1976 to 26.11.1989, was rejected on the basis of the principle of "no work no pay". The relevant part of the order is reproduced hereinbelow :-

"i=koyh esa miyC/k vfHkys[kks ,oa ;kph ls izkIr lk{;@vfHkys[k rFkk foRr ,oa ys[kkf/kdkjh] csfld f'k{kk] okjk.klh ls izkIr vk[;k ,oa ek0 loksZPPk U;k;ky; }kjk izfrikfnr fl}kUr "No Work no pay" ds vk/kkj ij ;kph Jh yYyu ikBd lsokfuo`Rr leUo;d ch0vkj0lh0 pfd;k] vuqifLFkfr vof/k fnukad 12-04-1976 ls 26-11-1989 ds e/; dk osru ikus ds vgZ ugh gSA vr% ;kph dk izR;kosnu fnukad 22-12-2008 cyghu gksus ds dkj.k fujLr fd;k tkrk gSA"

This order lead to third round of litigation and the appellant filed another Civil Misc. Writ Petition No.32311 of 2009, seeking following prayers:-

"(a) to issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 24.3.2009 passed by the respondent No. 3 - Zila Basic Shiksha Adhikari, Chandauli (Annexure-12 to the writ petition)

(b) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to make the payment of arrears of salary for the period 12.4.1976 to 26.11.1989 with interest and other consequential benefit as are admissible under rules.

(c) to issue any suitable order or direction as this Hon'ble Court may deem fit and proper under the circumstances of the case.

(d) to award cost of the petition in favour of the petitioner."

This writ petition was dismissed by learned Single Judge on 30.8.2018 by way of a reasoned judgment. The learned Single Judge has held that the claim of the appellant for backwages w.e.f. 12.4.1976 to 26.11.1989, was misconceived and this claim was already been rejected on three occasions. Learned Single Judge further held that:-

"The aforesaid claim for back wages from 1976 to 1989 as raised by the petitioner in his representation was misconceived in view of the narrative in the preceding paragraphs. The claim had been repeatedly rejected by this court as well as by the competent authority. The petitioner was not entitled to raise the said claim in the representation submitted by him in pursuance of the order passed by this court on 18.8.2008."

Relying upon the judgment passed by the Hon'ble Supreme Court in the case of Krishnakant Raghunath Bibhavnekar vs. State of Maharashtra and Ors reported at 1997 (3) SCC 636 and in the case of Balkrishna Savalram Pujari Waghmare vs. Shree Dhyaneshwar Maharaj Sansthan reported at AIR 1959 SC 798, learned Single held that:-

"The injury caused by denial of backwages is complete when at the time of reinstatement backwages are not granted. There is no continuing wrong though the perceived effect of denial of backwages may continue indefinitely."

The learned Single Judge has noticed that the order dated 21.3.1990, passed by District Basic Education Officer, was never challenged.

Now the appellant has approached the Division Bench by filing Special Appeal, challenging the order dated 30.8.2008. The appellant submitted that the order of learned Single Judge is misconceived, is against the settled principle of law and the principle of "no work no pay", is not applicable to the appellant's case as he was not allowed by the respondent to work from 12.4.1976 to 26.11.1989.

On the other hand, learned counsel for the respondents has submitted that the order passed by the learned Single Judge is correct on facts as well as on law and there is no need to interfere with the impugned order.

After considering the submissions advanced by learned counsel for the parties and perusing the materials available on record, we are of the considered opinion that the impugned order passed by the learned Single Judge is correct.

It is admitted position that the appellant was absent without any information for the period from 15.11.1973 to 6.4.1976 when he was in jail and further he joined services w.e.f. 26.11.1989 when he was granted permission to join service. Admittedly, the appellant had not worked from 12.4.1976 to 26.11.1989, therefore, he was not entitled for any salary for the said period based on the principle of "no work no pay".

The Hon'ble Supreme Court in the case of "Sukhdeo Pandey vs. Union of India and Another" reported at 2007 (7) SCC, 455 in para 17 has held that:-

"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."

The special appeal is also liable to be rejected on the principle of res judicata. The claim of the appellant has already been rejected thrice and the present attempt is clearly barred by principle of constructive res judicata.

The Hon'ble Supreme Court in the case of "Shankara Cooperative Housing Society Limited vs. M. Prabhakar and Others" reported at 2011 (5) SCC, 607 has held in para No.88 that:-

"This Court in the case of Devilal Modi, Proprietor, M/s Daluram Pannalal Modi v. Sales Tax officer Ratlam & Ors. [AIR 1965 SC 1150], has observed that "the rule of constructive res judicata that of a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding, which is based on the same cause of action, is founded on the same considerations of public policy. If the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take proceedings one after another and urge new grounds every time, and that plainly is inconsistent with considerations of Public policy."

The another ground for rejection of this special appeal is that the appellant has not challenged the order dated 21.3.1990 passed by the District Basic Education Officer whereby his claim for salary for the period of 12.4.1976 to 28.11.1989 has been rejected.

In view of the aforesaid discussions, the present appeal is dismissed and the impugned order dated 30.08.2018 passed by learned Single Judge as well as order dated 21.3.1990 passed by District Basic Education Officer, Vanarasi, is upheld.

No order as to costs.

(Saurabh Shyam Shamshery, J.)       (Bharati Sapru, J.)
 
Order Date :- 10.12.2018
 
Rishabh