Sushma Rastogi And Others vs Union Of India And Others
2023 Latest Caselaw 5962 Cal

6th September, 2023
  (D/L No.01)
     (SKB)

                                            W.P.A. 5961 of 2018

                                      Sushma Rastogi and others
                                                  Versus
                                        Union of India and others


                               Mr. Arup Kumar Lahiri,
                               Mr. Udayan Datta
                                                    ... for the petitioners.

                               Mr. Partha Ghosh
                                                    ... for the Union of India.



                  1. Heard Mr. Arup Lahiri, learned advocate for the writ

                      petitioners and Mr. Partha Ghosh learned advocate

                      for the respondents Union of India and its officials at

length. The instant writ petition is now taken up for

passing appropriate order.

2. By filing the instant writ petition under Article 226 of

the Constitution of India, the writ petitioners have

challenged the authority of the respondents in

treating the period from 31st July, 2009 to 10th April,

2013 as 'no work no pay' in respect of the deceased

employee Rakesh Kumar, who is the predecessor-in-

interest of the present writ petitioners.

3. The facts leading to filing of the instant writ petition

has a chequered history. Originally the predecessor-

in-interest of the present writ petitioners, namely;

Rakesh Kumar, was employed as a 'Daptari" in

CRPF. During his lifetime, a departmental enquiry

was initiated and pursuant to such departmental

enquiry, the said Rakesh Kumar was dismissed from

his service by an order dated 31 st July, 2009. The

writ petitioners challenged the said order of dismissal

by filing W.P.14938(W) of 2009 and during the

pendency of the said writ petition, the delinquent

Rakesh Kumar died and the present writ petitioners

being his legal heirs have been substituted in the

said writ petition. The said writ petition was

disposed of on 8th July, 2015 by a co-ordinate Bench

of this Hon'ble Court with a direction to the

respondent authorities to revisit the enquiry report

by the disciplinary authority. Even after revisiting,

the respondent authority found the delinquent

Rakesh Kumar guilty of the charge framed against

him and again imposed a punishment of dismissal

from service vide order dated 26th February, 2016.

4. The present writ petitioners being the legal heirs of

the said deceased Rakesh Kumar again carried the

matter before this Hon'ble Court by filing

W.P.8838(W) of 2016 and by an order dated 20 th

June, 2016, the said writ petition was allowed

thereby setting aside the order of punishment as

passed against the deceased employee Rakesh

Kumar. In the said writ petition, the co-ordinate

Bench of this Court further directed the respondent

authorities to pay the family pension, gratuity and

other benefits to the present writ petitioners in

accordance with law and in compliance with the said

order dated 20th June, 2016 as passed by the co-

ordinate Bench of this Court, the respondent

authorities passed an Office Order dated 24 th

September, 2016 of which para 4(ii) has been

impugned before this court.

5. For effective disposal of the instant writ petition, the

relevant portion of para 4 of the order dated 24 th

September, 2016 is reproduced hereinbelow in

verbatim:

"4.(II) Dismissal order issued vide this office order No. P.VIII-2/2007-EC.II dated 31/7/2009 and 26/2/2016 is hereby cancelled and the intervening period between from the date of issue of dismissal order i.e.31/7/2009 to date of death i.e.10/4/2013 be treated "AS SUCH" and condonation granted for pensionary benefits to NOK. He will not be entitled for any pay and allowances for the said period keeping in view the principle of "NO WORK NO PAY"."

6. Mr. Lahiri, learned advocate for the writ petitioners

drawing attention to the aforementioned portion of

the order dated 24th September, 2016 contended that

the respondent authorities have committed serious

error of law in considering the period 31 st July, 2009

to 10th April, 2013 as a period of 'no work no pay'. It

is contended by Mr. Lahiri that the respondent

authorities ought to have considered the period 31 st

July, 2009 to 10th April, 2013 as 'on duty' period

since the predecessor-in-interest of the present writ

petitioners i.e. Rakesh Kumar could not work during

the said period because of the dismissal order issued

by the respondent authorities, which was

subsequently set aside by a co-ordinate Bench of this

Court on 20th June, 2016 as passed in W.P.8838(W)

of 2016. It is thus contended by Mr. Lahiri that for

considering the aforementioned period as 'no work no

pay' in respect of the deceased employee, the

respondent authorities have violated the principles of

natural justice for which the writ jurisdiction of this

Court may be invoked.

7. In support of his contention, Mr. Lahiri places his

reliance upon the reported decision of North Delhi

Municipal Corporation Vs. Dr. Ram Naresh Sharma

and others reported in AIR 2021 SC 3795. The

relevant portion of which is as under:

"In such circumstances, the principle of 'No Work, No Pay' cannot be raised by the employers, as it is they who had obstructed the doctor from discharging his service. For support we may cite Dayanand Chakrawarthy v. State of Uttar Pradesh (2013)7 SCC 595:AIR 2013 SC 3066) where this Court speaking through Justice S. J. Mukhpadhyaya rightly held that: "48........If an employee is prevented by the employer from performing his duties, the employee cannot be blamed for having not worked, and the principle of "no pay no work" shall not be applicable to such employee"."

8. Mr. Lahiri, thus, argues that it is a fit case for

issuing a writ of mandamus upon the respondent

authorities to treat the period from 31 st July, 2009 to

10th April, 2013 as 'on duty' period of the deceased

employee, Rakesh Kumar.

9. Per contra, Mr. Ghosh, learned advocate for the

respondent authorities, submits before this Court

that the present writ petition should be dismissed in

limini in view of the suppression of material facts. It

is contended by Mr. Ghosh that pursuant to the

order dated 20th June, 2016 as passed in

W.P.8838(W) of 2016, all benefits have been given to

the present writ petitioners and one of the legal heirs

has been provided with employment in CRPF as a

die-in-harness case. It is further contended that

since the impugned order dated 24 th September,

2016 as passed by the respondent authorities have

been passed in consonance with the order dated 20 th

June, 2016 as passed in the earlier writ petition, the

writ petitioners cannot claim any further benefit by

filing this writ petition.

10. On perusal of the entire materials placed before

this court and after hearing the learned advocates for

the contending parties, it reveals to this court that so

far as the punishment of the deceased employee

Rakesh Kumar is concerned, that has been set aside

by a co-ordinate Bench of this Court by its order

dated 20th June, 2016 as passed in W.P.8838(W) of

2016. In the said order, a direction was passed

against the respondent authorities for payment of the

family pension, gratuity and other benefits to the

family members of the said deceased employee being

the writ petitioners herein. In the said order,

however, no order has been passed that the

respondent authorities are not required to pay any

arrear emoluments payable to the deceased employee

Rakesh Kumar during his lifetime to the present writ

petitioners.

11. From the order dated 24th September, 2016, it

reveals that the commandant of the respondent

authorities has deducted the benefits from the period

31st July, 2009 to 10th April, 2013 on the principle of

'no work no pay' but while issuing such order, he has

miserably failed to visualize that during the aforesaid

period, the deceased employee could not perform his

duties because of the order of dismissal passed by

the respondent authorities and not on his own

volition.

12. Such being the position, this court is of

considered view that the respondent authorities have

violated the principles of natural justice in passing

the order to treat the period 31st July, 2009 to 10th

November, 2013 as 'no work no pay' which is

absolutely illogical and against the dictum of the

Hon'ble Supreme Court as passed in the reported

judgment of North Delhi Municipal

Corporation(supra).

13. As a result, the instant writ petition succeeds.

The respondent authorities are hereby directed to

consider the period 31st July, 2009 to 10th April, 2013

as 'on duty' of the deceased employee Rakesh Kumar

and the emoluments and other benefits as available

for the said period to the said deceased employee

Rakesh Kumar be disbursed to the present writ

petitioners within a period of two months from the

date of communication of this order.

14. With the aforementioned observation, the instant

writ petition is disposed of.

15. Urgent photostat certified copy of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Partha Sarathi Sen, J.)