Shaikh Mahammad Shamsoddin vs The State Of Maharashtra And ...
2021 Latest Caselaw 10392 Bom

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        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                      WRIT PETITION NO.6597 OF 2020


Shaikh Mahammad Shamsoddin,
Age : 58 Years, Occupation : Govt.
Service as Junior Clerk,
College of Community Science,
Parbhani, Dist. Parbhani                                 ..PETITIONER

       VERSUS

1.     The State of Maharashtra,
       General Administration Department,
       Mantralay, Mumbai-4000032

2.     The Vice-Chancellor,
       Vasantrao Naik Marathwada Agricultural
       University, Parbhani-431402
       Dist. Parbhani

3.     The Registrar,
       Vasantrao Naik Marathwada Agricultural
       University, Parbhani-431402
       Dist. Parbhani

4.     Associate Dean & Principle of
       Colleges of community science
       N.M.K.V., Parbhani-431402                ..RESPONDENTS


Mr A.D. Soman, Advocate for the petitioner;
Mr S.G. Sangle, AGP for respondent No.1;
Mr Manish M. Navandar, Advocate for respondent Nos.2 to 4




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                         CORAM : RAVINDRA V. GHUGE &
                                S.G. MEHARE, JJ.

DATE : 5th August, 2021

ORAL JUDGMENT (Per Ravindra V. Ghuge, J.)

1. Rule. Rule made returnable forthwith and heard finally

by the consent of the parties.

2. The petitioner is aggrieved by the action of respondent

no.3 disallowing payment of wages for the period from

10.7.2019 till 26.12.2019. He has superannuated from

employment on 30.6.2020. As such, he has put-forth prayer

clause (B), which reads as under:-

"(B) By issue of Writ of Mandamus or any other Writ, Order or Direction in the like nature, the impugned communication No.APC-1 dated 18.03.2020 issued by respondent No.3 (Exhibit "F") thereby disallowing the payment of wages from 10.07.2020 to 26.12.2019 may kindly be quashed and set aside."

3. The petitioner submits that he was issued with a

transfer order dated 8.7.2019, moving him from Parbhani to

Latur. He was working as a Junior Clerk in the College of

Community Science in the Vasantrao Naik Marathwada

Agricultural University at Parbhani. He was relieved from

Parbhani on 9.7.2019. He preferred Writ Petition No.8679 of

2019 before this Court for challenging his transfer. By order

dated 10.12.2019, his petition was allowed. This Court

concluded that the petitioner was due to retire after six

months. His transfer from Parbhani to Latur is mid-term and

mid-tenure. Reliance was placed on Section 5 of the

Maharashtra Government Servants Regulations of Transfers

and Prevention of Delay in Discharge of Official Duties Act,

2005 and this Court concluded that special reasons were

necessary to support such a transfer when the employee had

six months for retirement. Since such reasons were not

assigned, this Court quashed and set aside the transfer order

restoring the petitioner to his position at Parbhani.

4. The learned Advocate for the petitioner submits that

after being relieved on 9.7.2019, he was granted 7 days time

to report at the place of transfer. He preferred his writ

petition on 15.7.2019 and on 17.7.2019, before he reported at

the place of transfer, he received an ad interim protective

order from this Court in the nature of status quo on 17.7.2019.

That was the 8th day on which he was protected by this Court.

Consequent to his success in the writ petition, he was allowed

to report for duties at Parbhani only on 27.12.2019. It is,

therefore, contended that no fault can be attributed to the

conduct of the petitioner. He was legally allotted 7 days time

to join and on the 8th day, this Court had granted a protective

order. In these circumstances, the principle of 'no work - no

pay' cannot be made applicable to him.

5. The learned Counsel representing respondent nos.2 to 4

- university authorities submits that the petitioner should

have reported at the place of transfer within 7 days,

considering Rule 29 of the Maharashtra Civil Services (Joining

Time, Foreign Services and Payments During Suspension,

Dismissal and Removal) Rules, 1981. Moreover, he was

relieved from Parbhani and he had not reported at Latur and

during this intermediate period, this Court had granted status

quo. This would not entitle him to the salary for the period

from 10.7.2019 to 26.12.2019. The principle of 'no work - no

pay' is squarely applicable to him.

6. The learned Advocate has placed reliance upon the

judgment delivered by he Honourable Apex Court in the

matter of State of Haryana & ors. vs. O.P. Gupta (1996)

AIR (SC) 2936. A specific reference is made to paragraph 7

of the said judgment, which reads as under:-

"7. This Court in Paluru Ramakrishnaiah & Ors. vs. Union of India and Another, considered the direction issued by the High Court and upheld that there has to be "no pay for no work", i.e., a person will not be entitled to any pay and allowance during the period for which he did not perform the duties of higher post, although after due consideration, he was given a proper place in the gradation list having been deemed to be promoted to the higher post with effect from the date his junior was promoted. He will be entitled only to step up the scale of pay retrospectively from the deemed date but is not entitled to the payment of arrears of the salary. The same ratio was reiterated in Virender Kumar v. Avinash Chandra Chadha [(1990) 3 SCC 482]."

7. The learned Advocate then submits that the transfer of

the petitioner was not a punitive position. This petition is not

adversarial litigation to the university. If an employee has

chosen not to join duties, he cannot claim wages for the

period that he has not worked with the university.

8. This Court has delivered a judgment in the matter of

Seema Ashok Kamble vs. Collector, Pune and others,

2008 (3) Mh.L.J. 781, while considering the issue of

computing 7 days from the date of the filing of a requisition

notice moving a no confidence motion under the Maharashtra

Village Panchayats Act. The special meeting for taking up the

no confidence motion has to be held within 7 days from the

date the Tahsildar receives the requisition motion. This Court

ruled that the day on which the motion is delivered to the

Tahsildar, should be excluded while computing 7 days for

holding a special meeting.

9. Sections 9 and 10 of the General Clauses Act, 1897, read

as under:-

"9 Commencement and termination of time. — (1) In any [Central Act] or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word “from”, and, for the purpose of including the last in a series of days or any other period of time, to use the word “to”.

(2) This section applies also to all [Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.

10 Computation of time. —

(1) Where, by any [Central Act] or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to

which the Indian Limitation Act, 1877 (15 of 1877) , applies.

(2) This section applies also to all [Central Acts] and Regulations made on or after the fourteenth day of January, 1887."

10. It is thus, provided that the first day in the series of days

or period of time to be computed, is to be excluded.

9. As such, in the case in hand, the petitioner was relieved

from Parbhani on 9.7.2019. Naturally, 9.7.2019 cannot be

reckoned with for computing 7 days period that was available

to the petitioner to report at Latur. The days to be counted

are from 10.7.2019. The petition was filed on 15.7.2019.

Consequentially, on the 8th day, i.e. 17.7.2019, after

completion of 7 days, this Court issued a status quo order.

This Court did not direct the petitioner to report for duties

during the pendency of the petition. This Court was aware

that the petitioner was relieved from Parbhani. Nevertheless,

while this Court decided Writ Petition No.8679 of 2019, the

impugned transfer order was held to be illegal and

unsustainable and, therefore, was quashed and set aside.

10. In these circumstances, we do not find that the

petitioner could be blamed when he was granted an ad

interim protective order by this Court. So also, as the transfer

order itself was held to be an illegal act on the part of the

employer, it is clear that the petitioner was relieved from

Parbhani on the basis of such an illegal order. Hence, all legal

benefits available to the petitioner, consequent to the transfer

order being quashed, would be payable.

11. The petitioner submits that after he succeeded before

this Court on 10.12.2019, he approached the university with

a copy of the order. By communication dated 26.12.2019, the

Registrar of the university permitted the petitioner to report

for duties and hence, he has reported on 27.12.2019.

12. In the peculiar facts of this case, we are convinced that

the principle of 'no work - no pay' would not be applicable to

the petitioner. Consequentially, this petition is allowed in

terms of prayer clause (B). As the petitioner has

superannuated, we expect the respondent university to clear

his outstanding wages for the period from 10.7.2019 to

26.12.2019, within 3 months.

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13. Rule is made absolute in above terms. No order as to costs.

(S.G. MEHARE, J.)                   (RAVINDRA V. GHUGE, J.)

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