Jharkhand High Court
Jagdish Prasad Yadav vs The State Of Jharkhand on 1 February, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2210 of 2018
Jagdish Prasad Yadav, aged about 58 years, son of late Hubi Prasad
Yadav, resident of Purandaha, P.O. and P.S. Deoghar, District-Deoghar
...... Petitioner
Versus
1. The State of Jharkhand
2. The Principal Secretary, Water Resources Development Department,
Ranchi
3. Chief Engineer, Water Resources Development Department, Deoghar
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Prashant Pallav, Advocate
For the Respondent-State : Ms. Kumari Rashmi, Advocate
08/Dated: 01/02/2021
1. Heard, Mr. Prashant Pallav, learned counsel appearing for the
petitioner and Ms. Kumari Rashmi, learned counsel for the respondent-
State.
2. This writ petition has been heard through Video Conferencing
in view of the guidelines of the High Court taking into account the
situation arising due to COVID-19 pandemic. None of the parties have
complained about any technical snag of audio-video and with their
consent this matter has been heard.
3. Petitioner has preferred this writ petition for quashing of order
dated 30.09.2015 contained in annexure-7 and for quashing of order
dated 23.06.2015 contained in annexure-8.
4. The petitioner is a land looser in the construction of the Punasi
Dam Project. In terms of scheme of the Government, the petitioner was
entitled for a job in the Irrigation Department, Deoghar and on
verification of document, the respondent authority found the petitioner
eligible and issued appointment letter dated 13.08.1992 contained in
Annexure-1 to the writ petition. The Government of Bihar stayed the
appointment of the petitioner and others vide letter dated 14.09.1992 and
the same was challenged in C.W.J.C. No. 11394 of 1992 before the Patna
High Court which was allowed vide order dated 11.02.1993 directing the
respondents to accept the joining of the petitioner. The petitioner again
joined on 22.02.1993. When that order was not complied, a Contempt
Application being M.J.C. No. 890 of 1993 was filed, pursuant thereto the
petitioner was allowed to join vide order dated 29.09.1993. The petitioner
was terminated from service on 20.02.1996 on the allegation of illegality
in the list of dismissed persons and that order was challenged in C.W.J.C.
No. 1006 of 1993 which was allowed and pursuant to contempt
proceeding, the petitioner was allowed to join vide letter dated
24.03.1999. The petitioner filed representation contained for monetary
benefit for the period he has been ousted from the service. Vide order
dated 30.09.2015, the service of the petitioner was regularized for the
period 01.03.1996 to 25.03.1999 but the petitioner was deprived of his
salary for the said period. Subsequently, vide order dated 23.06.2015 the
service of the petitioner was regularized for the period 14.08.2000 to
19.03.2002 but the petitioner was deprived of his salary for the said
period contained in annexure 8 to the writ petition. Aggrieved with the
said two orders, the petitioner moved before this Court by way of filing
this writ petition.
5. Mr. Prashant Pallav, learned counsel appearing on behalf of
the petitioner assailed the impugned orders on the ground that for
arbitrary action on the part of the respondents, petitioner has been
deprived from working for the said period. He submits that on the
intervention of the High Court, the petitioner was allowed to join twice.
He submits that on all the occasions, there was arbitrary action on the
part of the respondents that is why, the High Court interfered with. He
submits that there is no suppression of the facts on the part of the
petitioner. He submits that it is well-settled law that if the wilful action is
there due to laches on the part of the respondents, the petitioner is
entitled for consequential benefits. To buttress his argument, he relied
upon judgment in the case of "Shobha Dram Raturi Vs. Haryana
Vidyut Prasaran Nigam Limited & Others" reported in (2016) 16
SCC 663 in which the Hon'ble Supreme Court has held as under:-
"1.It is not a matter of dispute, that the appellant was retired from
service on 31-12-2002, even though he would have, in the ordinary
course, attained his date of retirement on superannuation, only on 31-
12-2005. The appellant assailed the order of his retirement dated 31-12-
2002 by filing Writ Petition No. 751 of 2003. The same was allowed by a
learned Single Judge of the Punjab and Haryana High Court, on 14-9-
2010. The operative part of the order is extracted hereunder:
"Accordingly the present writ petition is allowed; order dated 31-12-2002
(Annexure P-4) is quashed. The petitioner would be treated to be in
continuous service with all consequential benefits. However it is clarified
that since the petitioner has not worked on the post maxim of "no work,
no pay" shall apply and the consequential benefits shall only be
determined towards terminal benefits. However there will be no order as
to costs."
2. The denial of back wages to the appellant by the High Court vide its
order dated 14-9-2010 was assailed by the appellant by filing Letters
Patent Appeal No. 489 of 2011. The High Court rejected the claim of the
appellant, while dismissing the letters patent appeal on 26-5-2011. The
orders dated 14-9-2010 and 26-5-2011passed by the High Court limited
to the issue of payment of back wages, are the subject-matter of
challenge before this Court.
3. Having given our thoughtful consideration to the controversy, we are
satisfied, that after the impugned order of retirement dated 31-12-2002
was set aside, the appellant was entitled to all consequential benefits.
The fault lies with the respondents in not having utilised the services of
the appellant for the period from 1-1-2003 to 31-12-2005. Had the
appellant been allowed to continue in service, he would have readily
discharged his duties. Having restrained him from rendering his services
with effect from 1-1-2003 to 31-12-2005, the respondent cannot be
allowed to press the self-serving plea of denying him wages for the
period in question, on the plea of the principle of "no work no pay".
4. For the reasons recorded hereinabove, we are satisfied, that the
impugned order passed by the High Court, to the limited extent of
denying wages to the appellant, for the period from 1-1-2003 to 31-12-
2005 deserves to be set aside. The same is accordingly hereby set aside.
5. The appellant shall be paid wages for the above period within three
months from today. His retiral benefits, if necessary, shall be recalculated
on the basis thereof, and shall be released to him within a further period
of three months.
6. The instant appeal is allowed in the above terms."
6. Learned counsel for the petitioner further relied on judgment
in the case of "Deepali Gundu Surwase Vs. Kranti Junior Adhyapak
Mahavidyalaya (D.ED.) & Others" reported in (2013) 10 SCC 324
in which the Hon'ble Supreme Court has held as under :
"15.We have considered the respective arguments. The Act was enacted
by the legislature to regulate the recruitment and conditions of service of
employees in certain private schools in the State and to instil a sense of
security among such employees so that they may fearlessly discharge
their duties towards the pupil, the institution and the society. Another
object of the Act is to ensure that the employees become accountable to
the management and contribute their might for improving the standard
of education.
18. Rule 35 of the Rules empower the management to suspend an
employee with the prior approval of the competent authority. The
exercise of this power is hedged with the condition that the period of
suspension shall not exceed four months without prior permission of the
authority concerned. The suspended employee is entitled to subsistence
allowance under the scheme of payment (Rule 34) through cooperative
bank for a period of four months. If the period of suspension exceeds
four months, then subsistence allowance has to be paid by the
management. In case, the management suspends an employee without
obtaining prior approval of the competent authority, then it has to pay
the subsistence allowance till the completion of inquiry. A suspended
employee can be denied subsistence allowance only in the contingencies
enumerated in clauses (3) and (4) of Rule 33 i.e. when he takes up
private employment or leaves headquarters without prior approval of the
Chief Executive Officer.
21. The word "reinstatement" has not been defined in the Act and the
Rules. As per Shorter Oxford English Dictionary, Vol. 2, 3rd Edn., the
word "reinstate" means to reinstall or re-establish (a person or thing in a
place, station, condition, etc.); to restore to its proper or original state;
to reinstate afresh and the word "reinstatement" means the action of
reinstating; re-establishment. As per Law Lexicon, 2nd Edn., the word
"reinstate" means to reinstall; to re-establish; to place again in a former
state, condition or office; to restore to a state or position from which the
object or person had been removed and the word "reinstatement" means
establishing in former condition, position or authority (as) reinstatement
of a deposed prince. As per Merriam-Webster Dictionary, the word
"reinstate" means to place again (as in possession or in a former
position), to restore to a previous effective state. As per Black's Law
Dictionary, 6th Edn., "reinstatement" means:
"To reinstall, to re-establish, to place again in a former state, condition,
or office; to restore to a state or position from which the object or
person had been removed."
22. The very idea of restoring an employee to the position which he held
before dismissal or removal or termination of service implies that the
employee will be put in the same position in which he would have been
but for the illegal action taken by the employer. The injury suffered by a
person, who is dismissed or removed or is otherwise terminated from
service cannot easily be measured in terms of money. With the passing
of an order which has the effect of severing the employer-employee
relationship, the latter's source of income gets dried up. Not only the
employee concerned, but his entire family suffers grave adversities. They
are deprived of the source of sustenance. The children are deprived of
nutritious food and all opportunities of education and advancement in
life. At times, the family has to borrow from the relatives and other
acquaintance to avoid starvation. These sufferings continue till the
competent adjudicatory forum decides on the legality of the action taken
by the employer. The reinstatement of such an employee, which is
preceded by a finding of the competent judicial/quasi-judicial body or
court that the action taken by the employer is ultra vires the relevant
statutory provisions or the principles of natural justice, entitles the
employee to claim full back wages. If the employer wants to deny back
wages to the employee or contest his entitlement to get consequential
benefits, then it is for him/her to specifically plead and prove that during
the intervening period the employee was gainfully employed and was
getting the same emoluments. The denial of back wages to an
employee, who has suffered due to an illegal act of the employer would
amount to indirectly punishing the employee concerned and rewarding
the employer by relieving him of the obligation to pay back wages
including the emoluments."
7. Learned counsel for the petitioner further submits that identical
similarly situated person has been provided the benefit for that period in
view of annexure-10 to the writ petition and the case of the petitioner is
on same footing.
8. Per contra, Ms. Kumari Rashmi, learned counsel appearing on
behalf of the respondent-State submits that the petitioner has not
worked for the said period and that is why, the order has been passed
on the principle of 'no work no pay'. She submits that the period from
01.03.1996 to 25.03.1999 was regularized by the Chief Engineer, Water
Resources Department, Deoghar vide letter dated 30.09.2015 as no work
no pay. She submits that the period from 14.08.2000 to 20.03.2002 was
regularized by the Chief Engineer, Water Resources Department, Deoghar
vide letter dated 23.06.2015 on the principle of 'no work no pay' She
further submits that the second MACP has been sanctioned by the Chief
Engineer, Water Resources Department, Deoghar vide letter dated
29.06.2018. She submits that increment for regularized period which is on
the basis of 'no work no pay' has been stopped by the District Account
Officer, Deoghar vide letter dated 29.11.2017.
9. Having heard the learned counsel for the parties, the Court
has gone through the materials on record. It is admitted fact that the
petitioner was appointed in the year, 1992. It is also admitted fact that
the State of Bihar stayed the appointment of the petitioner vide letter
dated 14.09.1992 which was challenged before the Patna High Court in
C.W.J.C. No. 11394 of 1992 which was allowed and pursuant to contempt
proceeding, the petitioner was allowed to join vide letter dated
29.09.1993. The petitioner was again terminated from service on
20.02.1996 which was challenged in C.W.J.C. No. 1006 of 1993 which
was allowed and pursuant to contempt proceeding the petitioner was
allowed to join vide letter dated 24.03.1999. The petitioner was again
dismissed vide order dated 14.08.2000 and the petitioner was again
allowed to join in the year, 2002. The petitioner has now retired in the
month of March, 2020.
10. In view of the aforesaid facts, it is crystal clear that there is
no fault on the part of the petitioner and on all the occasions, the
Government has acted on its own and passed orders and pursuant to
order of the High Court, the petitioner was allowed to join. Thus, it is
clear that the action on the part of the respondent-State was arbitrary.
The identical person as disclosed in Annexure-10 to the writ petition has
been provided benefit of absence considering the judgment of the Patna
High Court. The case of the petitioner is fully covered with the judgments
in 'Shobha Dram Raturi' and 'Deepali Gundu Surwase' (supra). No
reason has been assigned by the respondents why the same benefit shall
not be extended to the petitioner.
11. In view of aforesaid facts, the writ petition succeeds. The
impugned orders dated 30.09.2015 and 23.06.2015 are quashed in part
so far as observation about 'no work no pay', is concerned. The petitioner
shall be entitled for the consequential benefits for the period 01.03.1996
to 25.03.1999 and 14.08.2000 to 19.03.2002 within a period of 12 weeks.
So far as the case of the petitioner with regard to promotion is
concerned, as it has been submitted by Mr. Pallav, learned counsel for the
petitioner that juniors to the petitioner have been promoted whereas the
petitioner has been left out and notional promotion is required to
provided to the petitioner. For this prayer, the petitioner is at liberty to
move before the respondents for taking decision on the point of
promotion. If the petitioner moves before the authority concerned, the
authority concerned shall take a decision in accordance with rules,
regulations and guidelines within a period of 12 weeks.
12. The writ petition stands disposed of in above terms. I.A., if
any, stands disposed of.
(Sanjay Kumar Dwivedi, J.)
Satyarthi/-
