Allahabad High Court
Umesh Chandra vs State Of U P And 2 Others on 20 March, 2023
Bench: Vikram D. Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 37
Case :- WRIT - A No. - 1353 of 2019
Petitioner :- Umesh Chandra
Respondent :- State Of U P And 2 Others
Counsel for Petitioner :- Abhitab Kumar Tiwari
Counsel for Respondent :- C.S.C.
Hon'ble Vikram D. Chauhan,J.
The writ petition is filed with the following prayer:
(i) Issue a writ order or direction in the nature of Certiorari to quash the letter dated 20.08.2014 along with communication letter dated 20.12.2017 (Annexure no.4 to the writ petition) issued by Executive Engineer, Irrigation, Tube-well Division (East), Meerut.
(ii) Issue a writ order or direction in the nature of Mandamus commanding and directing to the respondents to pay the salary of the petitioner from 18.05.2013 to 09.05.2014 along with interest within short period so fixed by this Hon'ble court."
It is submitted by learned counsel for the petitioner that the petitioner was initially working on the post of Tube-well Operator under the respondents and his service was dispensed with by the order dated 23.03.1995 against which the petitioner has raised an industrial dispute wherein the award was passed against the petitioner which was the subject matter of challenge in Writ-C No. 25619 of 2011.
The aforesaid writ petition was allowed by order dated 02.05.2013. The operative portion of the order is quoted hereinbelow:
" The reference was made in the year 2006 after a gap of almost 11 years on account of the fact that the petitioner was pursuing his remedy for regularization of his services before a Writ Court. For this delay, the liability of backwages cannot be fastened upon the employers. The Court is, therefore, of the opinion that in order to mould the relief, the petitioner is only entitled for reinstatement with continuity of service, but will not be entitled for any backwages.
In view of the aforesaid, the award of the labour court is quashed. The writ petition is allowed to the extent stated aforesaid."
Thereafter, in pursuance to the aforesaid judgment, the petitioner had submitted his joining on 18.05.2013 before the respondent-Authorities. The respondent-Authorities did not permit to join the petitioner at the place of work and as such the joining remained pending. During the intervening period, the respondents have filed a Special Leave Petition before the Apex Court being S.L.P. No. 6377 of 2014, which was rejected by the judgment dated 25.04.2014 and thereafter, the petitioner had been permitted to join on 09.05.2014.
It is submitted by learned counsel for the petitioner that in the present writ petition, the claim of the petitioner was only restricted to the payment of salary for the period from 18.05.2013 to 09.05.2014. Learned counsel for the petitioner submits that the petitioner had submitted his joining on 18.05.2013 however, the respondents have illegally denied the joining of the petitioner and thereafter a contempt petition was filed against the respondent-Authorities.
During the intervening period, the Special Leave Petition was also dismissed, and as such, the delay in the joining of the petitioner is at the behest of the respondent-Authorities, therefore, the respondent-Authorities are liable to pay the salary of the petitioner for the aforesaid period.
Learned Standing Counsel appearing on behalf of the respondents did not dispute the fact that the petitioner was reinstated in service by the judgment of this Court dated 02.05.2013. However, he was permitted to join on 09.05.2014 after the dismissal of the Special Leave Petition.
On pointed query being made by learned Standing Counsel that as to whether stay order was granted by the Apex Court in the Special Leave Petition. Learned Standing Counsel could not show any stay order wherein the judgment of this Court dated 02.05.2013 was stayed.
It is a settled law that mere pendency of an appeal would not ipso facto amount to stay of the judgment of the court below. Once there was no stay in operation in the Special Leave Petition, it was imperative on the part of the respondent-Authorities to have accepted the joining of the petitioner, which he had submitted on 18.05.2013. The delay in joining of the petitioner by the respondent-Authorities is only on the pretext that the S.L.P was pending. Such a ground would not be available to the respondents and mere filing of the Special Leave Petition cannot prejudice the right of the petitioner as it has been recognized by the judgment dated 02.05.2013, specifically when subsequently this S.L.P. was rejected by the order dated 25.04.2014.
The principle of no work no pay would not be applicable in the facts and circumstances of the case as the petitioner was ready to join and work, however, it was the respondent-Authority who illegally and without justification has not permitted the petitioner to join the work. Such a stand of the respondent-Authorities is not only arbitrary but in fact violative of the directions issued by this Court by the judgment dated 02.05.2013.
The learned Standing Counsel has not brought any material before this Court which would disentitle the petitioner from the payment of salary for the period of 18.05.2013 to 09.05.2014. It is to be noted that in the judgment dated 02.05.2013, this Court had directed the reinstatement of the petitioner and, however, the petitioner was disentitled for payment of the backwages on or before 02.05.2013. The aforesaid non-payment of backwages clause in the judgment dated 02.05.2013 would not disentitle the petitioner for payment of the subsequent wages after the order dated 02.05.2013, more particularly when the petitioner has immediately reported for joining the duties on 18.05.2013, the respondents have without justification not permitted the petitioner to work till 09.05.2014. Even on 09.05.2014, the joining was made only after the rejection of the S.L.P. of the State.
Accordingly, the impugned order dated 20.08.2014 is hereby set aside wherein the respondents have insofar rejected the claim of the petitioner for payment of salary for the period from 18.05.2013 to 09.05.2014 and a direction is issued to the respondent-Authorities to pay the salary of the petitioner from 18.05.2013 to 09.05.2014 within two months.
With the aforesaid observation/direction the writ petition is allowed.
Order Date :- 20.3.2023
Sumit Kumar
