Ram Niwas vs Uoi & Ors
2010 Latest Caselaw 829 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No.7415 /2008

                 Date of Decision: 15th February, 2010


       RAM NIWAS                                         ..... Petitioner
                             Through:   Mr. Sanjay Sharawat, Advocate

                        versus


       UOI & ORS                                         ..... Respondents
                             Through:   Ms. Divya Jha and Mr. Darpan
                                        Wadhwa, Advocates

       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MR. JUSTICE VIPIN SANGHI

       1. Whether the Reporters of local papers may
          be allowed to see the judgment?           :            Yes
       2. To be referred to Reporter or not?              :      Yes
       3. Whether the judgment should be reported
          in the Digest?                                  :      Yes

%                                JUDGMENT (Oral)


GITA MITTAL, J.

1. By this writ petition, the petitioner has assailed the order

dated 21st September, 2006, whereby the Competent Authority of the

Air Force has found the petitioner guilty of the charge for having

absented himself from duty without prior permission and has imposed

the penalty of "compulsory retirement" upon him.

2. The facts giving rise to the present petition are in a narrow

compass and to the extent necessary, are briefly noted hereafter:

(i) The petitioner was appointed on 17th July, 1987 at the age

of 23 years as a Mess Waiter, which was a Group "D"

civilian post in the Indian Air Force. Leave was sanctioned

to him from 12th April, 2003 to 16th April, 2003 to appear in

his class 10 examination from Haryana Open Learning

School.

(ii) It is not disputed that on expiry of the above period, the

petitioner did not resume duties but remained on leave

from 25th April, 2003 to 09th June, 2003. There is some

dispute with regard to whether such leave was authorized

or not. However, in view of the facts noticed in para (vii)

below, it is not necessary for us to go into the legality of

this action of the petitioner.

(iii) It is an undisputed position that the petitioner resumed

duty on 10th June, 2003. The petitioner has contended in

the writ petition that instead of his service being utilized as

Mess Waiter, he was shifted and assigned the duty of

Mechanical Transport Driver. Admittedly, the petitioner

was not paid his salary for the months of May, June and

July 2003. The reason for the same, as per the

respondents, was his failure to attend to his duties. On the

other hand, the petitioner has disputed the respondents

claim that he had not attended to his duties. It is submitted

that he had requested the respondents to start maintaining

a daily attendance register. This was done, and the

petitioner used to mark his attendance in such register.

(iv) It is the petitioner‟s case that he was in dire need of

finance, inasmuch as, his five children were all young and

school going. His family included aged parents, wife and

five children apart from himself. The petitioner states that

he was unable to bear even the expenses of commutation

to and from his place of work. The petitioner was the sole

bread earner for his family. The deprivation of the salary

reduced the family to financial penury to the extent that

the petitioner was unable to bear the expense required for

the commutation between home and office. In this

background, the petitioner was unable to attend his office

with effect from 04th August, 2003.

(v) The respondents issued a communication dated 05th

September, 2003 to the petitioner, informing him that his

absence from duty was unauthorized and would entail

penal consequences. The respondents required the

petitioner to report to the authorized medical

attendant/government hospital in case of sickness and to

obtain appropriate certification for joining duties. The

respondent also required the petitioner to inform the

reasons for his absence within 10 days of the receipt of the

letter.

(vi) Vide a communication dated 18th September, 2003, the

petitioner clearly informed the respondents that he had not

been paid any salary from May 2003 till date and was

unable to report to his posting without the requisite

finances. Detailed submissions with regard to his dire

straits, and that of his family members on account of

denial of salary to him were set out. The petitioner made a

prayer for release of payment to him so that he could

resume his duties.

(vii) The respondents informed the petitioner by a

communication dated 29th September, 2003 that the leave

period from 25th April, 2003 to 09th June, 2003 has been

regularized as per his entitlements and advised him to

report for duty without any further delay.

(viii) It is an admitted position before us that the respondents

paid the consolidated salary of five months for the period

May 2003 to September 2003 to the petitioner only

thereafter. This regularization of the petitioners‟ absence

from 25th April, 2003 to 09th June, 2003 as well as the

payment of salary for May to September, 2003 was made

unconditionally and without any kind of reservation with

regard thereto. Immediately on receipt of the payment,

the petitioner resumed duties with effect from 11th

October, 2003.

(ix) Despite performance of his duties, the petitioner‟s salary

for the months of November and December 2003 was

withheld by the respondents. No notice at all was given to

the petitioner nor any reasons for this action were assigned

before the action was actually taken.

(x) It was only by a communication dated 16th December, 2003

that the respondents chose to inform the petitioner that for

the reason he had remained absent from duty with effect

from 04th August, 2003 to 10th October, 2003 without prior

permission, and had also not submitted application for

leave for this period, his salary and allowances for the

subsequent period had been withheld by them. The

respondents had also suggested that the petitioner move

an application for leave for this period for further

proceeding. A reminder in this behalf was also addressed

to the petitioner on 21st January, 2004.

(xi) The petitioner contends that as his salary was not paid, he

was unable to meet his expenses, and for the same

reasons noticed herein above, he was again rendered

unable from committing to the office with effect from 16th

January, 2004.

(xii) So far as the absence of the petitioner with effect from 16th

January, 2004 was concerned, the respondents issued a

communication dated 11th February, 2004 requiring the

petitioner to explain the reasons for his absence, failing

which disciplinary action against him was threatened.

(xiii) The petitioner responded by his communication dated 17 th

February, 2004 reiterating the above deprived status of his

family again citing dire financial straits as the reasons for

his absence. In addition, the petitioner stated that he was a

poor person from the rural background without any other

source of income; that his savings also stood exhausted in

bearing the expenses of family; and that he could not even

pay the education fees of his children. The petitioner had

also drawn the attention of the respondents to the

satisfactory service rendered by him since his

appointment. He also reminded the respondents that

earlier also in similar circumstances, he had been unable to

report for duty for the period between 04th August, 2003 to

10th October, 2003 and had resumed his duties with the

respondent in the past as soon as he was given the

consolidated salary for the period from May to September

2003. A prayer was also made to regularize his absence

for the period from 16th January, 2004 till date on the

ground that the same was in the afore detailed

circumstances totally beyond his control and that there

was no fault which could be attributed to him.

(xiv) The respondents issued a memorandum dated 23rd

February, 2004 informing the petitioner that an enquiry

was proposed to be conducted against him under Rule 16

of the Central Civil Services (CC&A) Rules, 1965 and

charges for remaining absent continuously/occasionally

from duty without permission were enclosed. The

respondents called upon the petitioner to file a reply to the

said memorandum.

(xv) Perusal of the articles of charge would show that the first

charge related to the petitioner‟s absence with effect from

04th August, 2003 to 10th October, 2003, and from 16th

January, 2004 onwards. The second charge was with

regard to the petitioner‟s „habitual absenteeism‟.

(xvi) The petitioner tendered his reply dated 26th February,

2008, which was similar to his earlier responses and

detailed the same reasons for his absence.

(xvii) In the meantime, the respondents issued yet another

communication dated 11th March, 2004 requiring the

petitioner to report on duty and to submit a leave

application for the aforesaid period, failing which it was

threatened that disciplinary action would be taken against

him under the applicable rules. The petitioner again

responded by his letter dated 16th March, 2004, repeating

the same stand as already noted above.

(xviii) The petitioner submits that he was constrained to file a

writ petition being W.P. (C) No.5692/2004 before this court,

inter alia, seeking the quashing of the charge memo dated

23rd February, 2004; a direction to the respondents to take

the petitioner on the job and to mark his attendance; a

direction to the respondents to regularize his absence for

the aforenoted period during which he had remained

absent; a direction for release of salary, or at least

subsistence allowance so that he could join his duty; and

an order quashing the order dated 16th December, 2003.

(xix) The respondents contested this writ petition for a period of

four years. It is the petitioners‟ case before us that despite

the specific prayer in the petition for a direction to the

respondent to take the petitioner on the job, the

respondents did not make a statement to the effect that

the petitioner may report for duty at any point of time. The

counter affidavit filed in those proceedings has been

placed before us which also does not contain such

statement. It is also submitted that his salary for the

period from November 2003 was also never tendered to

him and that the respondents did not take into

consideration any of the facts and circumstances especially

financial penury submitted by him as the reasons for his

absence from duty.

(xx) The writ petition, which had been instituted on or about

15th April, 2004, remained pending till 28th July, 2008. In

the meantime, the respondents passed the impugned

order dated 21st September, 2006, compulsorily retiring the

petitioner. On 28th July, 2008, when the said petition was

taken up, the petitioner withdrew this writ petition with

liberty to assail the order of compulsory retirement dated

21st September, 2006 passed against him.

(xxi) Our attention has also been drawn to three orders,

whereby the respondents cancelled the memorandums of

charge sheet issued to the petitioner without prejudice to

right of the Disciplinary Authority to initiate disciplinary

proceedings under the CCS (CC&A) Rules, 1965. It is

explained by the learned counsel for the respondent that

these cancellations and fresh charge sheets were

necessitated in view of the continuous absence without

leave of the respondent. It is submitted that the fresh

charge sheets were issued each time to include, in their

ambit, charges relating to the additional period for which

the petitioner had been absent.

In this background, by a communication dated 31st

January, 2004, the respondents cancelled the charge sheet

issued on 23rd February, 2004 and, at the same time,

issued a fresh memorandum and charge sheet dated 31 st

January, 2005 against the petitioner. It is noteworthy that

the earlier memorandum and charge sheet had been

issued under Rule 16 of the Central Civil Service

(Classification, Control & Appeal Rules, 1965) (referred to

as the „CCS (CC&A) Rules, 1965‟ hereafter) for imposition

of minor penalties. However, by the memorandum dated

31st January, 2005, the respondents proposed to hold an

enquiry for imposition of major penalty under Rule 14 of

the CCS (CC& A) Rules, 1964. This charge sheet was

issued for the absence of the petitioner from 04th August,

2003 to 11th October, 2003 and from 16th January, 2004 to

till date.

(xxii) This charge sheet dated 31st January, 2005 was cancelled

by a communication dated 30th June, 2005 and substituted

by another memorandum and charge sheet of the same

day. It is noteworthy that by the charge sheet dated 30th

June, 2005, the respondents proposed to conduct an

enquiry against the petitioner for his absence for the

period commencing from 16th January, 2004 onwards only.

Thus the absence for the period 04th August, 2003 to 10th

October, 2003 stood deleted from the scope of inquiry.

(xxiii) The charge sheet dated 30th June, 2005 was also cancelled

by memorandum dated 16th February, 2006. The

respondents now proposed to hold an enquiry against the

petitioner by this memorandum dated 16th February, 2006

on the charge of unauthorized absence from duty for the

period 16th January, 2004 onwards by incorporating the

absence for the later period as well.

(xxiv) The petitioner‟s response to the memorandum dated 16 th

February, 2006 has been placed before us. In addition to

the aforenoted contentions which were repeated in this

reply, the petitioner has categorically stated his objection

to the stopping of his salary without any reason or without

issuance of any show cause notice. A categorical stand

was also taken by the petitioner that he had done his best

to join duties and requested the authority repeatedly for

permission to do so as well as for release of his salary to

enable him to join duty, but was not permitted to join

duties on one pretext or the other. It is noteworthy that the

petitioner strongly objected to the respondents‟

requirement of submission of an application by him with a

medical certificate for the period from 04th August, 2003 to

10th October, 2003, and drew attention to his preceding

application setting out the afore noted facts as the only

explanation of his absence. The petitioner had again made

a prayer for release of wages to enable joining of duty and

regularization of his absence from 16th January, 2004.

(xxv) The respondents found the explanation of the petitioner

unsatisfactory and initiated a departmental enquiry under

Rule 14 of CCS (CC&A) Rules. In these proceedings,

statements of two witnesses were recorded in support of

the charges against the petitioner. The petitioner also

examined two witnesses in his defence.

(xxvi) A provisional conclusion was drawn that the petitioner was

not fit to be retained in service and the penalty of

compulsory retirement was proposed to be imposed on

him. The disciplinary authority issued notice to show cause

dated 07th July, 2006 informing the petitioner of such

proposed action and opportunity was given to the

petitioner to make a representation against the proposed

penalty. The petitioner‟s reply dated 29th July, 2006 was

considered by the Disciplinary Authority who made the

following observations in the order dated 21st September,

2006 passed by him:

" (a) While his absence from duties as mentioned in Article-I has been established, Shri Ram Niwas has not submitted any evidence whatsoever to substantiate that he was sick or that any of his family members were sick as stated by him or any other reason/justification as to why he absented himself for such long period without any information.

(b) Despite affording him all opportunities in writing to join the duty and to apply for regularization of his period of absence on medical grounds, or any other legal grounds, by substantiating the same, he failed to do so.

(c) His claim that his entire period of absence be regularized and salary be paid is inappropriate and does not merit consideration.

(d) His contention that he was not allowed to join the duties is entirely false and baseless."

On these observations, the disciplinary authority found the

petitioner guilty of the charge of wilful absenteeism from

his duty without prior permission/intimation to the

authorities, and imposed the penalty of compulsory

retirement upon him.

(xxvii) As noted above, in view of this order, the petitioner

withdrew the Writ Petition (C) no.5692/2004 on 28th July,

2008 with liberty to assail the order dated 24 th September,

2006, by appropriate proceedings.

(xxviii) The present writ petition has been filed in the above

factual background on the ground that the order dated 21st

September, 2006 is violative of the petitioner‟s rights

enshrined under Articles 21 and 23 of the Constitution of

India; that it does not take into consideration the case of

the petitioner and is not sustainable in law. It is further

submitted that it was the petitioner‟s contention

throughout that he was not suffering from illness which

required him to be absent and his ground for absence was

due to deprivation of salary and his financial straits which

have not even been considered, let alone dealt with by the

competent authority. Article 23 of the Constitution of

India, recognizes the fundamental right of the citizens of

this country not be compelled to work without wages. Mr.

Sanjay Sharawat, learned counsel for the petitioner has

also placed reliance on the pronouncements reported at

Ram Lakhan Prasad v. State of Bihar, 1995 (7) SLR

70; Suraj Narain v. State of Madhya Pradesh, AIR

1960 MP 303; Ruiweinao Kahasoan Tangkhul v.

Ruiweinao Simirei, AIR 1961 Manipur 1; Peoples

Union for Democratic Rights v. UOI, (1982) 3 SCC

235; Olga Tellis v. Bombay Municipal Corp, AIR 1986

SC 180; State of Gujarat v. Hon'ble High Court of

Gujarat, (1998) 7 SCC 392; Kapila Hingorani v. State

of Bihar, (2003) 6 SCC 1; Food Craft Inst v.

Rameshwar Sharma, 134 (2006) DLT 49 in support of

his contentions :-

3. The core question which requires to be answered in the instant

case is as to whether the respondents could legally withhold the

payment of the wages for the period for which the petitioner had

actually discharged duties from 11th October, 2003 to 16th January,

2004. The further question which requires to be answered as to

whether in the given circumstance the petitioner was legally justified in

not reporting for duty thereafter.

4. From the above narration, it is necessary to firstly examine the

nature of the right of a person to claim entitlement to employment.

5. So far as the nature of the right to livelihood and payment of

wages is concerned, reference can usefully be made to the

pronouncement of the Supreme Court in AIR 1986 SC 180, Olga

Tellis v. Bombay Municipal Corporation. In paragraph 32 of the

judgment, the Supreme Court was called upon to answer the question

as to whether the right to life guaranteed under Article 21 of the

Constitution of India includes the right to livelihood. In this behalf, in

paragraph 32 of the judgment, the Supreme Court held as follows:

"We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the villages

that struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live : Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas J. in Baksey, (1954) 347 M.D. 442 that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois (1877) 94 U.S. 113, means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. The State of U.P. (1964) 1 SCR 332 : (AIR 1963 SC 1295)".

Right to livelihood is, therefore an essential and integral part

of right to life, constitutionally guaranteed under Article 21 and breach

whereof cannot be tolerated under any circumstance.

6. In order to answer the issues noticed above it becomes

necessary to examine the constitutional scheme and the rights of

employees as well as prohibitions thereunder. Article 23 enacts a very

important fundamental right, which is in the following terms:

"23. Prohibition of traffic in human beings and forced labour

(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law

(2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them."

7. It needs no elaboration that the fundamental right conferred by

Article 23 is also enforceable against not only the State, but also

against the whole world. This article is designed to protect the

individual against any form of forced labour practiced by any person

and has its genesis in the socio-economic conditions of the people at

the time the constitution came to be enacted, with a view to ensure

socio and economic justice to the large masses of people living in

abject poverty, destitution and slavery. The economic deprivation itself

places them at the bottom of the hierarchy of those marginalized

reducing them to the position of those having no kind of bargaining

power or choice. The rights recognized and conferred under Article 23

are aimed at preventing exploitation of such marginalized persons with

a view to imbibing charitarian values into society and ensuring human

dignity and basic human rights of the people.

8. In the pronouncement of the apex court reported at 1982 (3)

SCC 235, People's Union for Democratic Rights v. Union of

India, the apex court had occasion to consider the rights of

construction workers, who had been engaged by private contractors

for executing development works initiated by the Delhi Development

Authority. A writ petition was filed under Article 32 of the Constitution

of India on behalf of such poor, illiterate and ignorant classes for

protection of their fundamental rights. It was complained that several

statutory provisions including the Minimum Wages Act, 1948; Equal

Remuneration Act, 1976; Employment of Children Act, 1938, amongst

others had been infringed by the private contractors and the state had

failed to fulfil its obligation/responsibility in protection of the

fundamental rights. During the course of the discussion in this

landmark judgment, the court construed the expression "traffic in

human beings and begar and other similar forms of forced labour" in

Article 23, in the following terms:

"13. ......The word „begar‟ in this Article is not a word of common use in English language. It is a word of Indian origin which like many other words has found its way in the English vocabulary. It is very difficult to formulate a precise definition of the word „begar‟, but there can be no doubt that it is a form of forced labour under which a person is compelled to work without receiving any remuneration. Molesworth describes „begar‟ as "labour or service exacted by a government or person in power without giving remuneration for it". Wilson's glossary of Judicial and Revenue Terms gives the following meaning of the word „begar‟: "a forced labourer, one pressed to carry burdens for individuals or the public. Under the old system, when pressed for public service, no pay was given. The Begari, though still liable to be pressed for public objects, now receives pay : Forced labour for private service is prohibited". „Begar‟ may therefore be loosely described as labour or service which a person is forced to give without receiving any remuneration for it. That was the meaning of the word „begar‟ accepted by a Division Bench of the Bombay High Court in S. Vasudevan

v. S.D. Mital. „Begar‟ is thus clearly a form of forced labour. Now it is not merely „begar‟ which is unconstitutionally prohibited by Article 23 but also all other similar forms of forced labour. This Article strikes at forced labour in whatever form it may manifest itself, because it is violative of human dignity and is contrary to basic human values".

9. The court rejected the arguments on behalf of the respondents

that the interdict of Article 23 is limited only to those forms of forced

labour where labour or service is exacted from a person without paying

any remuneration at all, and if some remuneration is paid, though it be

inadequate, it would not fall within the "other similar forms of forced

labour". In this behalf, the court observed as follows:

"If this were the true interpretation, Article 23 would be reduced to a mere rope of sand, for it would then be the easiest thing in an exploitative society for a person belonging to a socially or economically dominant class to exact labour or service from a person belonging to the deprived and vulnerable section of the community by paying a negligible amount of remuneration and thus escape the rigour of Article 23. We do not think it would be right to place on the language of Article 23 an interpretation which would emasculate its beneficent provisions and defeat the very purpose of enacting them. We are clearly of the view that Article 23 is intended to abolish every form of forced labour. The words "other similar forms of forced labour are used in Article 23 not with a view to importing the particular characteristic of 'begar' that labour or service should be exacted without payment of any remuneration but with a view to bringing

within the scope and ambit of that Article all other forms of forced labour and since 'begar' is one form of forced labour, the Constitution makers used the words "other similar forms of forced labour." If the requirement that labour or work should be exacted without any remuneration were imported in other forms of forced labour, they would straightaway come within the meaning of the word 'begar' and in that event there would be no need to have the additional words "other similar forms of forced labour." These words would be rendered futile and meaningless and it is a well recognised rule of interpretation that the court should avoid a construction which has the effect of rendering any words used by the legislature superfluous or redundent. The object of adding these words was clearly to expand the reach and content of Article 23 by including, in addition to 'begar', other forms of forced labour within the prohibition of that Article. Every form of forced labour 'begar' or otherwise, is within the inhibition of Article 23 and it makes no difference whether the person who is forced to give his labour or service to another is remunerated or not. Even if remuneration is paid, labour supplied by a person would be hit by this Article if it is forced labour, that is, labour supplied not willingly but as a result of force or compulsion".

10. As noticed herein above, the petitioner had not been paid

salary for the period May to September 2003 even though during this

period he performed duties between 10th June, 2003 to 03rd August.

2003. The petitioner had objected to the non-payment of his

legitimate dues and had informed the respondent that he was unable

to report for duty for the reason that he did not even have the bare

finances to pay for even the costs of commutation. Pertinently,

without payment of salary, the petitioner had worked for the period

10th June, 2003 to 03rd August, 2003 and he stopped working only on

04th August, 2003 in these circumstances.

11. The reason according to the respondents for not paying the

petitioners salary from May to September 2003 was his unauthorized

absence from duty from 25th April, 2003 to 09th June, 2003. However,

by the aforenoticed communication dated 29th September, 2003 this

period of absence stood regularized as per his entitlements. As a result

of this regularization, the petitioner was paid consolidated salary of

five months, i.e. May to September, 2003, without imposition of any

kind of conditions or stipulations requiring the petitioner to comply

with any other formalities.

12. The petitioner was not required to make any kind of

application. Even if it were to be held that the petitioner was required

to submit an application for leave for the period of his prior absence,

we find that no notice was given to the petitioner informing him of the

proposed action for withholding the salary before taking of the action.

The respondents permitted the petitioner to discharge duties from 10 th

October, 2003 till 16th January, 2004. He was paid salary for October,

2003 also without any objection. It was only after stopping the

payment of salary from the month of November 2003, that the

respondents for the first time addressed communication on 16th

December, 2004 and sent another communication on 21st January,

2004.

13. We find that the respondents had paid him consolidated

salary for the period from May to September 2003 and permitted the

petitioner to join duty on 11th October, 2003. These facts substantiate

the petitioner‟s assertion of financial inability to attend to his duties

without the money to pay for the costs of transportation.

14. The Supreme Court has had occasion to examine the impact

of denial of wages to employees and responsibility of the state on such

incidence.

Non-payment of arrears of wages and wages to employees of

state corporations, public sector undertakings and statutory bodies in

the State of Bihar resulted in a large number of such employees dying

due to starvation. Several such employees committed suicide owing to

acute financial crisis resulting in non-payment of remuneration for a

long time. A newspaper report was noticed by a senior advocate,

resulting in her filing of a writ petition under Article 32 before the

Supreme Court. The pronouncement of the court in this writ petition

reported at (2003) 6 SCC 1, Kapila Hingorani v. State of Bihar

sheds valuable light on the very issues which have been raised before

this court. It was observed that the Government Companies/Public

Sector Undertakings, being State, would be constitutionally liable to

respect life and liberty of all persons in terms of Article 21 and

therefore, must do so in the cases of their own employees.

The court placed reliance on earlier pronouncements and

reiterated that the right to shelter; right to livelihood and other facets

thereof, constituted integral parts of the right to life under Article 21 of

the Constitution of India which was required to be protected. In

paragraph 58 of the pronouncement, the court placed reliance on the

principles laid down in People's Union for Democratic Rights

(supra) as well as State of Gujarat (supra) on the rights of the

workman and observed that constitutional provisions must be so

interpreted so as to advance its socio-economic objectives. The

Supreme Court reiterated the principles laid down in the earlier

judgments to the effect that exaction of labour and services against

payment of less than the minimum wages amounts to forced labour

within the meaning of Article 23 of Constitution of India and that the

state could not abjure or avoid its responsibility. The court concluded

that the state was the sole shareholder of the public sector companies,

it had a deep and pervasive control over their affairs; that the

companies and corporation were "state" within the meaning of Article

12 and that neither they nor the State of Bihar could escape their

liability to enforce the rights of the citizens under Articles 21 and 23.

15. In the light of the constitutional mandate and the principles

aforenoticed, an employer, especially the State, as the respondents

before us, are bound to ensure payment of salary to its employees for

work done by them.

16. Mr. Sharawat, learned counsel for the petitioner has placed

reliance on the pronouncement reported at AIR 1961 Manipur 1,

Ruiweinao Kahaosan Tangkhul v. Rueiweinao Simirei, wherein

the court held that the custom requiring one day‟s free labour to be

given to the village headman contained elements of compulsion which

are prohibited under Article 23 of the Constitution of India.

17. In 1995 (7) SLR 70, Ram Lakhan Prasad v. State of Bihar,

the court held that the appellant had not been removed from service

and was continuing to function as a teacher. In this background, it was

not open to the State to avail his service and at the same time, decline

to pay him.

18. We now turn to the impugned order passed by the

Disciplinary Authority, which pertains to the charge of the petitioner‟s

absence from 16th January, 2004 onwards. We find that the Disciplinary

Authority has completely ignored the case which was put up by the

petitioner in his defence to the charges laid against him. On the

contrary, the Disciplinary Authority has found the petitioner guilty of

the charge for the reason that he has not submitted any evidence to

substantiate that he was sick, or that some of his family members were

sick. As noted herein above, the petitioner was vehemently opposing

the respondents‟ request for submission of a medical certificate by him

to justify his absence on the ground that he was sick. The

representation placed before us manifests that the petitioner had

clearly stated that he was opposed to setting up a false plea of illness

as an explanation for his absence and also the submission of any false

medical certificate. The Disciplinary Authority noticed that the

petitioner had failed to tender any other reason or justification for his

absence since 16th January, 2004. As noticed herein above, the

petitioner had placed the same grounds as the explanation of his

absence on account of similar action by the respondent in the past.

This explanation had been considered as sufficient and adequate to

justify regularization of the petitioner‟s absence from duty on previous

occasion i.e. from April to June, 2003. Unfortunately these grounds

have not even been considered, let alone dealt with by the Disciplinary

Authority.

19. It has not been the respondents contention that the petitioner

had any other source of income or that the grounds stated for his

inability to report for duty are false. Despite this reality, the

respondents again stopped the payment of wages from November

2003 onwards to the petitioner on the ground that the petitioner had

unauthorisedly remained absent between 04th August, 2003 and 10th

October, 2003. No such plea was taken while releasing the

consolidated salary for five months of May to September 2003, or even

while releasing the salary for October 2003. It was taken after the

petitioner had served for about forty five days between 01 st November,

2003 and 15th December, 2003 and was informed to the petitioner only

vide communication dated 16th December, 2003. The petitioner

repeatedly protested against this action in his communication of 17 th

February, 2004 and response dated 26th February, 2004 in vain.

20. No statutory provision, rule or regulation has been placed

before us which enabled the respondents to proceed in the manner in

which they have proceeded. To take action of any kind prejudicial to

the petitioner on the plea of his unauthorized absence, it was

imperative for the respondents to have put the petitioner to notice of

the same; to call for his reply/ representation; to issue a memorandum

of charge(s) and to hold an enquiry in accordance with the principles of

natural justice and the relevant rules; and if found „guilty‟, to pass a

reasoned order imposing penalty, in terms of the applicable provisions

of law.

21. For the period of absence from 04th August, 2003 to 10th

October, 2003, though the respondents did issue a charge sheet at an

earlier stage, but withdrew the same later. In the last two charge

sheets issued on 30th June, 2005 and 11th June, 2006 issued by the

respondents, no charges relating to absence from 04th August, 2003 to

10th October, 2003 were levelled against the petitioner.

22. The petitioner has made lengthy submissions before the

respondents regarding his financial condition. Before us also it has

been contended that the petitioner was the sole bread earner of his

family consisting of nine persons, which included aged parents, wife,

five minor school going children apart from himself. The petitioner has

clearly stated that other than the salary which he was receiving from

the respondents, he had no source of income at all.

The financial state of his family was so pathetic that the

petitioner was compelled to withdraw his children from school. Given

the bare and priority needs of shelter, food etc., we see no reason to

disbelieve the petitioner that the family was depending only on his

salary for income and that, as a result of stoppage of his salary, he was

not having requisite finances to even bear the expenses for

commutation from Nangloi, where he was residing, to the Western Air

Command, to report for discharge of his duties. To a person who has

nothing else, salary from employment is a lifeline. When deprived of

the same, base survival of the family would be the priority.

23. Our attention has been drawn to the pronouncement of the

Madhya Pradesh High Court reported at AIR 1960 MP 303, Suraj

Narain v. State of Madhya Pradesh. In this case, an order had been

passed against the teacher withholding the pay temporarily for

unsatisfactory work. The Division Bench held that to ask a man to work

and then not to pay him any salary or wages savours of begar which is

prohibited in Article 23 of the Constitution; that it was a fundamental

right of every citizen of India not to be compelled to work without

wages. In this view of the matter, stopping of the pay and making the

petitioner teacher to work was not only against the rules which govern

his employment but offends the spirit of Article 23 of the Constitution

of India. Shiv Dayal, J, in his concurring judgment has additionally

stated that a government servant, so long as he continues to be in

service, must be paid his salary. That is his legal right and it is the

duty of the State Government to pay it. It was not open to the

respondents to withhold the salary of the petitioner for any reason at

all. Certainly, no statutory provision or rule, which permitted or

enabled the respondents to do so, has been pointed out to us.

24. It also becomes necessary to examine the position of the

petitioner pitted against the might of the respondents. This is best

found in the observations of the Supreme Court in Peoples Union For

Democratic Rights (supra) wherein the court pertinently stated that :

"13. ......Moreover, in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, a contract of service may appear on its face voluntary but it may, in reality, be involuntary, because while entering into the contract, the employee, by reason of his economically helpless condition, may have been faced with Hobson's choice, either to starve or to submit to the exploitative terms dictated by the powerful employer. It would be a travesty of justice to hold the employee in such a case to the terms of the contract and to compel him to serve the employer even though he may not wish to do so. That would aggravate the inequality and injustice from which the employee even otherwise suffers on account of his economically disadvantaged position and lend the authority of law to the exploitation of the poor helpless employee by the economically powerful employer. Article 23 therefore says that no one shall be forced to provide labour or service against his will, even though it be under a contract of service".

25. An issue was raised in (1998) 7 SCC 392, State of Gujarat &

Anr. v. High Court of Gujarat as to whether exaction of hard labour

from convicted prisoners serving punishment of rigorous imprisonment

imposed by court under authority of law amounted to forced labour or

begar within the meaning of the expression under Article 23 of the

Constitution of India. Even though no such question arises in the

present case, however, the observations of the apex court with regard

to the nature of the right and entitlement to minimum wages for work

done by the prisoners throw valuable light on the question which arises

in the present case. In paragraph 34 of the pronouncement, the court

observed that:

"It is not only the legal right of a workman to have wages for the work, it is a social imperative and an ethical compulsion. Extracting somebody‟s work without giving him anything in return is only reminiscent of the period of slavery and the system of begar."

26. While considering the quantum of wages to be paid to the

prisoners, the court observed that paying pittance to them is virtually

paying nothing. Adverting to the provisions of Minimum Wages Act,

the court placed reliance on the observations of the apex court in its

earlier judgment reported at AIR 1958 SC 578 : 1959 SCR 12,

Express Newspaper Pvt. Ltd. v. Union of India, and stated as

follows:

"Minimum wages law has now come to stay. This Court has held that minimum wage which is sufficient to meet the bare physical needs of a workman and his family irrespective of the paying capacity of the industry must be something more than subsistence wage which may be sufficient to cover the bare physical needs of the worker and his family including education, medical needs, amenities, adequate for preservation of his efficiency".

27. There is therefore no manner of doubt that an employer has no

option so far as payment of wages to an employee for work done. The

respondents denied the same to the petitioner.

28. The observations of the apex court on the plight of somebody

without resources being without a choice in paragraph 14 of the

pronouncement in People's Union for Democratic Rights (Supra),

apply in all fours to the plight of the petitioner in the instant case. On

the choices available to a poor person, the apex court has observed as

follows:

"Where a person is suffering from hunger or starvation, when he has no resources at all to fight disease or feed his wife and children or even to hide their nakedness, where utter grinding poverty has broken his back and reduced him to a state of helplessness and despair and where no other employment is available to alleviate the rigour of his poverty, he would have no choice but to accept any work that comes him way, even if the remuneration offered to him is less than the minimum wage. He would be in no position to bargain with the employer; he would have to accept what is offered to him. And in doing so he would be acting not as a free agent with a choice between alternatives but under the compulsion of economic circumstances and the labour or service provided by him would be clearly 'forced labour‟. There is no reason why the word 'forced' should be read in a narrow and restricted manner so as to be confined only to physical or legal 'force' particularly when the national charter, its fundamental document has promised to build a new socialist republic where there Will be socio-economic justice for all and every one shall have the right to work, to education and to adequate means of livelihood".

29. It is evident from the factual narration noted above, that the

petitioner was compelled to go on serving the respondents despite not

receiving wages for the work which he had already done for the

previous months. It was only when he reached such a stage of penury

and object deprivation, that he was unable to bear the expenses of

commutation to his place of work, that the petitioner unable to report

for duty. In these facts, there is substance in the submission of the

petitioner that he was not absent unauthorisedly from his place of

work, but was prevented by the conduct of the respondent in

accessing his place of work.

30. As observed in State of Gujarat v. High Court of Gujarat

(supra), minimum wages would essentially include the amenities

adequate for preservation of the efficiency of the workmen. The wages

must be sufficient to cover the bare physical needs of work and his

family, which would include the needs of shelter, food, education,

medical needs apart from enabling preservation of the employee‟s

efficiency. Denial or deprivation of sufficient wages would impact the

entitlement of the workman and his family to all these rights, which are

all essential and integral part of right to life guaranteed under Article

21 of the Constitution of India.

31. We may note that, in fact, the respondents accepted this

condition of the petitioner on the previous occasion when they had

paid him the consolidated salary in October 2003 for the period of five

months w.e.f. May 2003 to September 2003 despite having withheld

the same earlier. There is nothing placed before us which could

suggest that there was a change in the financial condition of the

petitioner which would justify disbelieving his claim and financial status

for the subsequent period as well.

32. However, the defence of the petitioner has not at all been

considered or discussed by the disciplinary authority. In view of the

above, it is evident that the impugned order has been passed without

application of mind to the relevant material available on record.

33. As we have already noted above, the courts have deprecated

the action of the employer in compelling the employees to perform

their duties despite having stopped making payment of wages or

salary to them. It has been repeatedly held by the Courts that the

action of the State in continuing to avail services of an employee while

declining to pay him for the same is violative of the rights of the

employees and offensive to the spirit of Article 21 and 23 of the

Constitution of India.

34. The Indian Air Force is the respondent before this court. It cannot

absolve itself from the compliance with the constitutional mandate. Its

action of denial of the wages to the workman without any notice, for

work which the workman had actually performed amounted to violation

of the fundamental rights of the workman and his family guaranteed

under Article 21 of the Constitution of India. At the same time, the

action of the respondents was violative of the rights of the petitioner

under Article 23 of Constitution of India and cannot be sustained.

In (1981) 1 SCC 608 : AIR 1981 SC 746 Francis Coralie

Mullin vs. Administrator, U.T. of Delhi, it was held that the right to

live guaranteed by Article 21 is not confined merely to physical

existence or to the use of any faculty or limb through which life is

enjoyed or the soul communicates with outside world but it also

includes within its scope and ambit the right to live with basic human

dignity and the state cannot deprive anyone of this precious and

invaluable right because no procedure by which such deprivation may

be effected can ever be regarded as reasonable, fair and just.

The action of the respondents in compelling him to perform

duties and refusing him to pay for the same, has to be held to be

unconstitutional. The absence of the petitioner from service from 16th

January, 2004 onwards in the circumstance noticed above was clearly

not actionable. The impugned order is therefore unsustainable in law.

35. Mr. Sharawat, learned counsel for the petitioner, on

instructions from the petitioner, who is present in court, submits that in

case this court reinstates the petitioner into service, the petitioner

would not insist for award of back wages. Even otherwise, as the

petitioner has not rendered service from 16th January, 2004 onwards.

The petitioner is therefore not entitled to back wages for the

period from 16th January, 2004 till today, on application of the

principles of „no work, no pay‟, and in view of the statement made

today. The respondent shall, however, be liable to make payment of

salary and allowance to the petitioner for the period from 1st November

2003 upto January 15, 2004.

36. In view of the above discussion, the order dated 21st

September, 2006 is hereby set aside and quashed. As a consequence,

the respondents are directed to forthwith reinstate the petitioner with

continuity of service for the purposes of seniority, pension and pay

fixation.

37. The respondents are directed to take back the petitioner in

service forthwith who shall report at his place of last posting at the

earliest. He shall be paid his wages and allowance for the period after

his joining in accordance with law without any deductions for the past

period.

38. The respondents are directed to make payment of the salary

and allowances for the period of 1st November 2003 upto 15th January

2004 to the petitioner within a period of four weeks from today.

39. The petitioner would also be entitled to costs quantified at

Rs.10,000/-, which shall be paid to the petitioner within six weeks from

today.

40. The writ petition is allowed in the aforesaid terms.

Dasti to parties.

GITA MITTAL, J.

VIPIN SANGHI, J.

FEBRUARY 15, 2010 sr