Delhi High Court
Sh. Manish Kumar vs The State Of Bihar & Anr. on 3 May, 2010
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6381/1998 & CM No.12892/2003 (u/S 151 CPC for modification /recall of
order dated 18.9.2003).
% Date of decision: 3rd May, 2010
SH. MANISH KUMAR ..... Petitioner
Through: Mr. Sanjay Kumar Pathak, Advocate.
versus
THE STATE OF BIHAR & ANR. ..... Respondents
Through: Mr. Rajesh Pathak with Mr. Prakash
Parewa, officer, State of Bihar
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No.
2. To be referred to the reporter or not? No.
3. Whether the judgment should be reported
in the Digest? No.
RAJIV SAHAI ENDLAW, J.
1. The petitioner has instituted this petition claiming that he was working on a daily
wage basis in Bihar Bhawan at New Delhi and was facing imminent illegal termination of
his services. The writ petition was filed claiming the relief of regularization and
confirmation. The petitioner however subsequently amended the petition stating that his
services had been terminated and adding the relief, in the petition, of payment of unpaid
wages for the period prior to termination.
2. The counsel for the petitioner on 28th November, 2001 stated that the petitioner's
services were disengaged on 17th April, 1999; that he was in service from March, 1998 to
17th April, 1999 but had not been paid the wages for that period. The counsel for the
respondent had sought time to obtain instructions. Subsequently on 9th December, 2002 a
direction was made for the muster roll to be produced by the respondent before this
Court. The respondent however failed to produce the muster roll and on 18th September,
2003 direction was issued that if records/muster roll are not produced then the respondent
to pay the salary to the petitioner from March, 1998 to April, 1999 within eight weeks
thereof. Rule was also issued in the petition.
3. CM No.12892/2003 has been filed by the respondent for modification/recall of
the aforesaid order. The respondent has in the said application stated that the original
muster roll has been misplaced due to reorganization and could not be traced; that the
photocopies of the muster roll will be produced at the time of hearing. It is also stated that
no work was taken from the petitioner from March, 1998 onwards and the petitioner is
therefore not entitled to salary from March, 1998 onwards. In the counter affidavit filed
by the respondent also the same stand is taken in para 20.
4. The counsel for the petitioner has confined the relief in this petition to the claim
for unpaid wages from March, 1998 to 17th April, 1999. The other reliefs sought in the
petition are not pressed and rightly so in view of the judgment in Secretary, State of
Karnataka Vs. Umadevi AIR 2006 SC 1806.
5. As far as the claim for wages for the aforesaid period is concerned, the same is
disputed. The counsel for the petitioner states that the petitioner is entitled to the said
wages in terms of the order dated 18th September, 2003. However the order dated 18th
September, 2003 is a conditional order. The direction for payment was to take effect only
if the records were not produced. The respondent has in the application being CM
No.12892/2003 given explanation for non production of the records and there is no
reason for this Court to at this stage not accept the said explanation. Even if it be the
contention of the counsel for the petitioner that the records are being intentionally
suppressed, the said question also raises a factual dispute and it cannot be resolved in the
writ jurisdiction. The petitioner is thus not found entitled to the sole relief pressed also.
However since the writ petition has remained pending before this Court and Rule was
also issued it is deemed expedient to clarify that the petitioner, for his claim aforesaid of
wages shall be entitled to approach the appropriate forum and in the event of the forum
being approached within six weeks of today, the said fora shall adjudicate the claim
without going into the question of limitation.
The writ petition is disposed of with the aforesaid directions.
No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
3rd May, 2010
