Jharkhand High Court

Sudhir Kumar Singh vs The State Of Jharkhand on 6 September, 2021

                                          1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       W.P.(S) No. 900 of 2011
                                  ---------

     Sudhir Kumar Singh                                         ..... Petitioner
                                  Versus
     1. The    State    of    Jharkhand,      through     its    Commissioner,

Transport Department, Govt. of Jharkhand at Ranchi, P.O. and P.S. and District-Ranchi.

2. The Divisional Manager State Road Transport Corporation, Dumka Division, P.O. & P.S. & District-Dumka.

3. The Depot Superintendent, State Road Transport Corporation, Deoghar, P.O. & P.S. & District-Deoghar.

4. Administrator, Bihar State Road Transport, Bihar, Patna.

                                               .....      Respondents
                                  ---------

CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

---------

For the Petitioner : Mr. Ranjan Kr. Singh, Advocate For the State of Bihar : Mr. Pankaj Kumar, Advocate For the Res-State : Ms. Shivani Kapoor, A.C. to S.C.-II

---------

09/Dated: 6th September, 2021 Heard through V.C.

2. The instant writ application has been preferred by

the petitioner praying for a direction upon the respondents

to pay the salary to the petitioner from the period

23.07.2005 to 16.10.2007 as during this period; earlier the

petitioner was compulsorily retired pursuant to the order

passed under Memo No. 2793 dated 23.07.2005; however

subsequently; the said order of compulsorily retirement was

recalled by the appellate authority vide order under Memo

No. 36 dated 16.10.2007.

3. Mr. Ranjan Kr. Singh, learned counsel for the

petitioner fairly submits that the respondent has applied

the principle of no work no pay, but the fact remains it was

not the fault of this petitioner for not doing the work; rather

he was forced and restrain from doing work as he was

compulsorily retired; however, the said order of compulsory

retirement dated 23.07.2005 was quashed and set aside by

the superior authority vide order dated 16.10.2007.

He further submits that now the law is well settled

that the respondents cannot be allowed to take the

principle of no work no pay when fault lies with the

respondent in not utilizing the service of the petitioner.

4. Mr. Pankaj Kumar, learned counsel for the

respondent-BSRTC submits that he is not a necessary

party and whether the petitioner will get salary for the

relevant period has to be taken by the State of Jharkhand

and not BSRTC, Patna.

5. Ms. Shivani Kapoor, appearing for the respondent-

State submits that the petitioner is not entitled for salary

for the relevant period as the petitioner did not work for the

said period and the moment petitioner joined service, he is

getting the salary and the respondent has rightly rejected

the claim of salary to the petitioner on the ground of no

work no pay.

6. Having heard learned counsel for the parties and

after going through the relevant record of the case, it

appears that while the petitioner was posted at Deoghar; an

order of compulsorily retirement was passed against him

under Memo No. 2793 dated 27.07.2005.

7. The petitioner challenged the aforesaid order before

the appellate authority; who after going through the

documents available before him, quashed and set aside the

order of compulsorily retirement and the petitioner was

directed to be reinstated in service.

By going through the appellate order it appears that

the appellate authority has not even modified the order;

rather quashed it on merit, as such I see no reason for not

giving salary for the interregnum period because the

respondent employer cannot be allowed to press self serving

plea of denying salary to the petitioner from the date of

compulsorily retirement till the date of reinstatement.

Admittedly; fault lies with the respondents in not utilizing

the service of the petitioner for the period in question and

as such the action of the respondent to treat that period as

no work no pay has no legs to stand.

8. In the case of SriKantha S.M. Versus Bharath

Earth Movers Ltd., reported in (2005) 8 SCC 314 the

Hon'ble Apex Court has held at paragraph nos. 29 and 30

as under:-

"29. We must frankly admit that we are unable to

uphold the contention of the respondent Company. A similar situation had arisen in J.N. Srivastava5 and a similar argument was advanced by the employer. The Court, however, negatived the argument observing that when the workman was willing to work but the employer did not allow him to work, it would not be open to the employer to deny monetary benefits to the workman who was not permitted to discharge his duties. Accordingly, the benefits were granted to him. In Shambhu Murari Sinha II7 also, this Court held that since the relationship of employer and employee continued till the employee attained the age of superannuation he would be entitled to "full salary and allowances" of the entire period he was kept out of service. In Balram Gupta2 in spite of specific provision precluding the government servant from withdrawing notice of retirement, this Court granted all consequential benefits to him. The appellant is, therefore, entitled to salary and other benefits.

30. For the foregoing reasons, in our opinion, the appeal deserves to be allowed and is accordingly allowed. The action of the respondent Company in accepting the resignation of the appellant from 4-1- 1993 and not allowing him to work is declared illegal and unlawful. It is, therefore, hereby set aside. The orders passed by the learned Single Judge and the Division Bench upholding the action of the Company are also set aside. The respondent Company is directed to treat the appellant in continuous service up to the age of superannuation i.e. 31-12-1994 and give him all benefits including arrears of salary. The Company may adjust any amount paid to the appellant on 15-1-1993 or thereafter. The appeal is accordingly allowed with costs."

In similar facts and circumstances; the Hon'ble Apex

Court in the case of Shobha Ram Raturi Versus Haryana

Vidyut Prasaran Nigam Limited, reported in (2016) 16

SCC 663, has reiterated the law. Para 3 of the judgment is

quoted herein below:-

"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"."

9. In view of the aforesaid judgment passed by the

Hon'ble Apex Court and in the background of this case, this

Court holds that the petitioner is entitled for salary from

the period of compulsory retirement till the date of

reinstatement.

At the cost of repetition, the order of punishment of

compulsory retirement was not even modified and the

appellate authority has quashed and set aside the said

order on merit and therefore, there is no reason for not

giving any salary for that period.

10. In view of the aforesaid findings, the instant writ

application is allowed. The petitioner is directed to file a