Madhya Pradesh High Court
Dilip Singh Nagar vs State Of M.P. Through Department Of ... on 8 February, 2024
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 8 th OF FEBRUARY, 2024
WRIT PETITION No. 14786 of 2020
BETWEEN:-
DILIP SINGH NAGAR S/O SHRI PHOOL SINGH NAGAR,
AGED ABOUT 49 YEARS, OCCUPATION: SERVICE,
PANCHAYAT SECRETARY IN GRAMT PANCHAYAT -
JIRWAL, JANPAD - TONKKHURD, DISTRICT DEWAS
R/O. VILLAGE AND POST OFFICE BAROTHA, TEHSIL
AND DISTRICT DEWAS (MADHYA PRADESH)
.....PETITIONER
(BY SHRI L. C. PATNE - ADVOCATE)
AND
1. STATE OF M.P. THROUGH THE PRINCIPAL
SECRETARY TO THE GOVT OF M.P. DEPARTMENT
OF PANCHAYAT AND RURAL DEVELOPMENT
PRINCIPAL SECRETARY VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. COLLECTOR, DISTRICT DEWAS (MADHYA
PRADESH)
3. CHIEF EXECUTIVE OFFICER JILA PANCHAYAT
DEWAS (MADHYA PRADESH)
4. CHIEF EXECUTIVE OFFICER JANPAD PANCHAYAT
KANNOD, DISTRICT DEWAS (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ANENDRA SINGH PARIHAR - P.L. FOR STATE)
This petition coming on for admission this day, th e court passed the
following:
Signing time: 2/9/2024 1. With the consent of the parties, heard finally.
2. By this petition preferred under Article 226 of the Constitution of
India, the petitioner has challenged the order dated 18/1/2018 (Annexure P/1)
passed by respondent No.1 so also the consequential order dated 26/6/2018
(Annexure P/13) passed by respondent No.3 in so far as his claim for payment
of salary and allowances has been rejected.
3 . The petitioner was appointed on the post of Panchayat Karmi, Gram
Panchayat, Barotha, District Dewas by order dated 20/9/2007 in accordance
with the provisions of M.P. Panchayat Karmi Scheme, 1995 on a fixed
consolidated monthly honorarium. He was subsequently notified as a Panchayat
Secretary of the said Gram Panchayat by order dated 30/11/2007. Subsequently
by order dated 18/5/2012 the petitioner was sanctioned a regular pay scale of
Rs.2200 - 3700 admissible allowances.
4. By order dated 2/8/2013 the services of the petitioner were terminated
by respondent No.3 on the ground that he has secured his appointment illegally
in as much as he belongs to the same caste as that of Sarpanch of Gram
Panchayat. The said order was maintained in revision having been preferred by
the petitioner under Section 91 M.P. Panchyat Raj and Gram Swaraj Act, 1993
by the Additional Commissioner, Ujjain, Division Ujjain.
5 . Being aggrieved by the order aforesaid, the petitioner preferred
revision before respondent No.1 which was allowed by order dated 18/1/2018
directing for reinstatement of the petitioner but no order as regarding back
wages was passed. Subsequently the petitioner was reinstated in service on
1/3/2018 but by order dated 26/6/2018 (Annexure P/3) passed by respondent
No.3 his claim for grant of full salary and allowances has been rejected on the
principle of "no-work- no-pay". Hence this petition.
6 . Learned counsel for the petitioner submits that the order of
termination of services of the petitioner has been held to be illegal by the
revisional authority itself hence the necessary consequence of the same was that
he was automatically entitled for grant of payment of salary and allowances for
the period from the date of his termination till the passing of the aforesaid order
and was also entitled for continuity in service. The same has however been
illegally done on the basis of principle of "no-work-no-pay" which was wholly
inapplicable to the facts of the case. It is hence submitted that the impugned
order dated 26/6/2018 be set aside and the order dated 18/1/2018 be suitably
modified.
7 . Reply has been filed by the respondents and the learned counsel for
the respondents has submitted that since the date of his termination till the date
of his reinstatement the petitioner had not worked hence it is not open for him
to claim any back wages or salary and allowances for the period for which he
had not worked. The principle of "no-work-no-pay" is squarely applicable to
the facts of the present case in view of which the petitioner is not entitled for
any relief claimed by him.
8 . I have considered the submissions of the learned counsel for the
parties and have perused the record.
9 . The order dated 18/1/2018 (Annexure P/10) passed by respondent
No.1 shows that therein it has been held that the order of termination was illegal
in as much as the same had been passed on considerations which did not exist.
The termination was on the ground that the petitioner had obtained appointment
despite a member of his caste being the Sarpanch of his village whereas from
Signature Notthe reports which have been submitted it is apparent that the same was not the
Verified
Signed by: SHAILESH
case. The order in effect holds that the termination of the petitioner was illegal
MAHADEV SUKHDEVE
Signing time: 2/9/2024
6:20:10 PM
to begin with. In such circumstances, since the petitioner has been illegally kept
out of employment due to fault of the respondents themselves the principle of
"no-work-no-pay" would not be applicable to the facts of the present case. In
the reply of the respondents there is no other justification for denying the
benefits to the petitioner as has been claimed for by him except the aforesaid
principle which is misplaced.
1 0 . I n Deepali Gundu Survase V/s. Kranti Junior Adhyapak &
Mahavidyalaya, (2013) 10 SCC 324 it has been held in paragraph No.38 as
under :-
"38. The propositions which can be culled out from the aforementioned
judgments are:
3 8 .1 . In cases of wrongful termination of service, reinstatement with
continuity of service and back wages is the normal rule.
38.2. The aforesaid rule is subject to the rider that while deciding the
issue of back wages, the adjudicating authority or the Court may take into
consideration the length of service of the employee/workman, the nature of
misconduct, if any, found proved against the employee/workman, the financial
condition of the employer and similar other factors.
38.3. Ordinarily, an employee or workman whose services are
terminated and who is desirous of getting back wages is required to either
plead or at least make a statement before the adjudicating authority or the
Court of first instance that he/she was not gainfully employed or was
employed on lesser wages. If the employer wants to avoid payment of full back
wages, then it has to plead and also lead cogent evidence to prove that the
employee/workman was gainfully employed and was getting wages equal to
the wages he/she was drawing prior to the termination of service. This is so
MAHADEV SUKHDEVE because it is settled law that the burden of proof of the existence of a
particular fact lies on the person who makes a positive averments about its
existence. It is always easier to prove a positive fact than to prove a negative
fact. Therefore, once the employee shows that he was not employed, the onus
lies on the employer to specifically plead and prove that the employee was
gainfully employed and was getting the same or substantially similar
emoluments.
38.4. The cases in which the Labour Court/Industrial Tribunal exercises
power under Section 11-A of the Industrial Disputes Act, 1947 and finds that
even though t h e enquiry h e ld against t h e employee/workman is consistent
with the rules of natural justice and / or certified standing orders, if any, but
holds that the punishment was disproportionate t o the misconduct found
proved, then it will have the discretion not to award full back wages. However,
if the Labour Court/Industrial Tribunal finds that the employee or workman is
not at all guilty of any misconduct o r that the employer had foisted a false
charge, then there will be ample justification for award of full back wages.
38.5. The cases in which the competent Court or Tribunal finds that the
employer has acted in gross violation of the statutory provisions and/or the
principles of natural justice or is guilty of victimizing the employee or
workman, then the concerned Court or Tribunal will be fully justified in
directing payment of full back wages. In such cases, the superior Courts
should not exercise power under Article 226 or 136 of the Constitution and
interfere with the award passed by the Labour Court, etc., merely because
there is a possibility of forming a different opinion on the entitlement of the
employee/workman to get full back wages or the employer's obligation to pay
the same. The Courts must always be kept in view that in the cases of wrongful
/ illegal termination of service, the wrongdoer is the employer and sufferer is
the employee/workman and there is no justification to give premium to the
employer of his wrongdoings by relieving him of the burden to pay to the
employee/workman his dues in the form of full back wages.
38.6. In a number of cases, the superior Courts have interfered with the
award of the primary adjudicatory authority on the premise that finalization
of litigation has taken long time ignoring that in majority of cases the parties
are not responsible for such delays. Lack of infrastructure and manpower is
the principal cause for delay in the disposal of cases. For this the litigants
cannot be blamed or penalised. It would amount to grave injustice to an
employee or workman if he is denied back wages simply because there is long
lapse of time between the termination of his service and finality given to the
order of reinstatement. The Courts should bear in mind that in most of these
cases, the employer is in an advantageous position vis-à-vis the employee or
workman. He can avail the services of best legal brain for prolonging the
agony of the sufferer, i.e., the employee or workman, who can ill afford the
luxury of spending money on a lawyer with certain amount of fame. Therefore,
in such cases it would be prudent to adopt the course suggested in Hindustan
Tin Works Private Limited v. Employees of Hindustan Tin Works Private Ltd.
V. Employees.
38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal
(supra) that on reinstatement the employee/workman cannot claim continuity
of service as of right is contrary to the ratio of the judgments of three Judge
Benches referred to hereinabove and cannot be treated as good law. This part
of the judgment is also against the very concept of reinstatement of an
employee/workman."
11. Thus since termination of services of the petitioner has been held to
be wrongful on part of respondents, he is entitled for reinstatement which has
already been directed. However, he is also entitled for continuity of service and
back wages. No exceptional circumstances have been pointed out in the matter
by the respondents so as to deny the said benefits to the petitioner.
MAHADEV SUKHDEVE 11 . As a consequence, the petition deserves to be and is accordingly
allowed. It is directed that the petitioner shall be entitled for all service benefits
including full salary and allowances for the period from 5/3/2015 up to March
2018. In the facts and circumstances of the case, it would not be appropriate to
grant interest to the petitioner on the aforesaid amount. However, the same be
paid in favour of the petitioner within a period of two months from today,
failing which it shall carry interest at the rate of 10% per annum till date of
payment.
(PRANAY VERMA)
JUDGE
SS/-
