Achong Haokip vs The State Of Manipur Through The ...
2021 Latest Caselaw 331 Mani

                IN THE HIGH COURT OF MANIPUR
                          AT IMPHAL

                        WP(C) No. 307 of 2017

Achong Haokip, aged about 48 years old,
D/o Jamson Haokip, a resident of Old Lambulane, Jail Road, P.O
& P.S Imphal, Imphal West District, Manipur

                                             ....Petitioner
          -Versus-

1.    The State of Manipur through the Addl. Chief Secretary/Principal
      Secretary/Commissioner (Labour & Employment), Government of
      Manipur, Imphal, Manipur.

2.    The Deputy Labour Commissioner, Government of Manipur,
      Imhal, Manipur.

                                             ....Respondents

BEFORE HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR

For the Petitioner :: Mr. Kh. Tarunkumar, Advocate

For the Respondents :: Mr. Sukumar, Govt. Advocate

Dates of hearing :: 09-10-2018, 28-11-2018 & 04-12-2018 Date of judgment :: 08-12-2021 & Order

JUDGMENT AND ORDER (CAV)

A vacancy notice dated 19th September, 1998 was issued by the Employment Officer for one post of Labour Inspector (General) and one post of Rural Labour Inspector (reserved for ST) in the office of the Deputy Commissioner, Labour, Manipur. The petitioner being eligible applied for the post of Rural Labour Inspector (reserved).

WP(C)No. 307 of 2017                                             Page 1
 [2]           By a Notice dated 25th September, 1998, the Deputy

Labour Commissioner, Manipur notified that interview for recruitment to one post of Labour Inspector (UR) and one post of Rural Labour Inspector (reserved for ST) will be held on 28th September, 1998. Thereafter, Departmental Promotion Committee (DPC) was constituted and the DPC held its meeting on 28-09-1998 wherein, the petitioner was recommended for appointment to the post of Rural Labour Inspector (ST). Consequent to the recommendation made by the DPC, the office of the Labour Commissioner issued a Notification dated 14th October, 1998 notifying that the petitioner and another person were selected for appointment to the post showing against their respective names. Thereafter, the Office of the Labour Commissioner issued an order dated 19th October, 1998 appointing the petitioner to the post of Rural Labour Inspector on temporary basis. The order further specified that the appointment of the petitioner is subject to the outcome of the decision of the Gauhati High Court, Imphal Bench in Civil Rule No. 47 of 1994.

[3] Prior to the issuance of of the vacancy Notice dated 19th September, 1998, one Mrs. Low Veikhui along with 13 (thirteen) others were initially appointed as Rural Labour Inspector on adhoc basis for a period of 6 (six) months or till the post are filled up on regular basis whichever is earlier by order dated 07-02-1991. The said persons who were appointed as Rural Labour Inspector on adhoc basis formed an association in the name and style "All Manipur Adhoc Rural Labour Inspectors' Welfare Association" and filed a writ petition being C.R No. 178(a) of 1992. The said Civil Rule was disposed by an order dated 12-12-1992 directing the respondents to constitute a special DPC exclusively for the petitioners. In pursuance to the order dated 12-12-1992 passed in C.R No. 178 (a) of 1992, a special DPC was constituted for regularisation of the adhoc appointments of the

WP(C)No. 307 of 2017 Page 2 adhoc Rural Labour Inspectors. The DPC thereafter, recommended all adhoc Rural Labour Inspectors except Mrs. Low Veikhui for regularisation of their adhoc services and the only ground for non- recommendation of Mrs. Low Veikhui by the special DPC was that she had resigned from her service w.e.f., 01-03-1992.

[4] Being aggrieved by the non-recommendation by the special DPC, Mrs. Low Veikhui filed a writ petition being Civil Rule No. 47 of 1994 for a direction to the State respondents to give her regular appointment in the post of Rural Labour Inspector and treat her equally with the 13 other adhoc Rural Labour Inspectors who were appointed along with her.

[5] During the pendency of Civil Rule No. 47 of 1994, the vacancy notice dated 19th September, 1998 was notified and the subsequent development was brought to the notice of the Court in C.R No. 47 of 1994. Accordingly, a conditional appointment order dated 19th October, 1998 was passed in respect of the present petitioners.

[6] Civil Rule No. 47 of 1994 was disposed of by Judgment and Order dated 17-09-1999 with a direction to the State respondents to appoint the said Mrs. Low Veikhui to the post of Rural Labour Inspector within a period of one month from the date of passing the order. Further in another Civil Rule No. 1266 of 1998, the appointment order of the present petitioner dated 19-10-1998 was quashed by order dated 17-09-1999.

[7] Being aggrieved with the order dated 17-09-1999 passed in Civil Rule No. 1266 of 1998, the present petitioner filed a writ appeal which was registered as WA No. 12 of 2000 before the Gauhati High Court, Imphal Bench. The said Writ Appeal No. 12 of 2000 was

WP(C)No. 307 of 2017 Page 3 disposed of by Judgment and Order dated 31-08-2005 with the following directions:

"20. In the peculiar facts and circumstances of the present case and keeping in view of the laws laid down by the Apex Court, in spite of dismissal of the writ appeal, we direct the state respondents to adjust the present appointment of the present appellant as Rural Labour Inspector against the vacancy in the post of Inspector of Statistics which would arise w.e.f, 30-09-2005".

[8] The State of Manipur filed a Review Petition No. 5 of 2007 in WA No. 12 of 2000 on the ground that the post of Inspector of Statistics had been included in the downsizing/right sizing in the Labour Department and the Government of Manipur had already issued an order dated 26.2.2005 to the effect that the post of Inspector of Statics shall stand abolished as and when the post fall vacant due to retirement. Accordingly, the Division Bench of the Gauhati High Court, Imphal Bench disposed of the Civil Review Petition No. 5 of 2007 by Judgment and Order dated 24-04-2007 with the following directions:

"12 This Court is of the considered view that para No. 20 of the Judgment and Order dated 31-08-2005 directing the State respondents/review petitioners herein to adjust the present appointment of the present appellant (appellant of the W.A No. 12 of 2000) as Labour Inspector against the vacancy in the post of Inspector of Statistics which would arise w.e.f., 30-09- 2005 would not have been passed if the learned Government advocate brought the said order of the Government of Manipur dated 26-02-2005 for abolishing the post of Inspector of Statistics on the voluntary retirement of said Shri O. Anganghal Singh on 30-09-2005 to the notice of this Court. Such being the situation, this Court is duty bound to correct the said mistake in para No. 20 of the judgment and order dated 31-08-2005 by way of review. We hereby do so by setting aside the para No. 20 of the judgment and order of this Court dated 31-08-2005, but, however, it is left to the wisdom of the stated respondents to take steps in the peculiar facts and circumstances of the present appellant (appellant of W.A No. 20 of 2000)".

WP(C)No. 307 of 2017                                                   Page 4
 [9]          Thereafter, the Commissioner (Labour), Government of

Manipur issued an order dated 27th August, 2007 in compliance with the directions of the Gauhati High Court, Imphal Bench passed in Civil Rule No. 47 of 1994, Civil Rule No. 1266 of 1998 and Civil Review Petition No. 5 of 2007 terminating the service of the petitioner as Rural Labour Inspector with immediate effect.

[10] The Deputy Labour Commissioner, Manipur by letter dated 6th February, 2014 addressed to the Under Secretary (Labour & Employment), Government of Manipur requested for revocation of the termination order of the petitioner stating inter alia that the appointment of the petitioner may be adjusted against Labour Inspector against the vacant post of Labour Inspector in view of the direction passed by the Gauhati High Court in Writ Appeal No. 12 of 2000.

[11] Thereafter, the Deputy Secretary to the Government of Manipur, Labour and Employment Department issued an order dated 29th October, 2015 appointing the petitioner to the post of Labour Inspector in the Labour Department by cancelling/reviewing her last service termination order. Another order dated 5th December, 2015 was issued by Labour & Employment Department ordering that the petitioner shall be accommodated against the existing vacancy of Inspector, Labour.

[12] Thereafter, the petitioner made a representation dated NIL addressed to the Deputy Labour Commissioner, Imphal requesting for payment of back wages/arrears for the period of 27-08- 2007 to 29-10-2015 in terms of the order dated 29th October, 2015.

WP(C)No. 307 of 2017 Page 5 The Deputy Secretary, Labour & Employment to the Government of Manipur passed another order dated 12th January, 2017 ordering that the petitioner, Labour Inspector shall be given/extended financial benefits like pay scale/basic pay & allowances etc., with retrospective effect from 16-10-1998 i.e, the date of her initial regular appointment to the post of Labour Inspector on notional basis. It was further stated that the petitioner shall not have any claim for payment of any arrears of pay and allowances since she was not in service during the period w.e.f., 27-08-2007 till 28-10-2015. However, she shall be entitled to other service benefits such as seniority, pay increments, pension etc. w.e.f., the date of her initial regular appointment as was done earlier in the case of one Mrs. Low Veikhui, Rural Labour Inspector.

[13] Being aggrieved with the order dated 12th January, 2017 by which the petitioner has been denied payment of arrears and pay and allowances w.e.f, 27-08-2007 to 28-10-2015, the petitioner has preferred the present writ petition.

[14] Heard Mr. Kh. Tarunkumar, learned counsel for the petitioner as well as Mr. Sukumar, learned GA appearing for the State respondents.

[15] Mr. Kh. Tarunkumar, learned counsel for the petitioner submits that the petitioner was appointed to the post of Rural Labour Inspector by following due process of law. However, her appointment was set aside by the Gauhati High Court, Imphal Bench only because of the administrative lapses for which the petitioner cannot be held responsible. He submits that this was also observed by the Division Bench in WA No. 12 of 2000. The petitioner was terminated from her service in violation of the principle of natural justice as no show cause

WP(C)No. 307 of 2017 Page 6 notice was issued to her prior to her termination. As the petitioner was holding a regular post of Rurual Labour Inspector, her service is protected by Article 311 (2) of the Constitution of India and therefore, an opportunity of being heard should have been provided to her prior to the issuance of her termination order. He also submits that the petitioner was again appointed as Labour Inspector on 29-10-2015 by cancelling/reviewing her last termination order. The petitioner did not abandon her service but only because of compelling circumstances she could not render her service and therefore, the respondents cannot deny her due salaries for the period w.e.f., 27-08-2007 to 28- 10-2015 by applying the principle of No Work No Pay. He also submits that the principle of No Work No Pay is not applicable to cases where the employee is willing to work but is kept away from work by the authorities for no fault of such employees. Therefore, as the petitioner was terminated from her service in violation of the principle of natural justice, she is entitled to get her due back wages for the period from 27-08-2007 to 28-10-2015. He has placed his reliance in the case of Union of India & Ors Vs K.V. Jankiraman & Ors reported in (1991) 4 SCC 109 and in the case of Shri Amrik Singh & Ors Vs Union of India & Ors reported in (1980) 3 SCC 393.

[16] No counter affidavit has been filed by the State respondents. However, Mr. Sukumar, learned GA submits that the petitioner cannot claim her arrears and salary w.e.f., 28-08-2007 to 28-10-2015 inasmuch as she was terminated by the order dated 17th August, 2007 which was passed complying with the directions passed by the Single Bench as well as the Division Bench of the Gauhati High Court, Imphal Bench. Her appointment as Labour Inspector by the order dated 29-10-2015 was done only by way of compassion on the part of the State respondents by adjusting her against the vacant post to Labour Inspector in the Labour Department. It is also not denied by

WP(C)No. 307 of 2017 Page 7 any of the parties that the petitioner did not render her service for the period w.e.f., 28-08-2007 to 28-10-2015. The peculiar circumstances of the case in hand is that though she was appointed as Rural Labour Inspector after undergoing due process of law, her services has to be terminated in view of the Judicial pronouncement of the Gauhati High Court, Imphal Bench and it is also a matter of fact that her appointment to Labour Inspector was made by way of adjusting her to one vacant post of Labour Inspector. Therefore, it is not the fault of the State respondents for denying the petitioner to work from the period w.e.f., 28-08-2007 to 28-10-2015. He also submits that by the order dated 12th January, 2017, she has been giver her service benefits including seniority, pay increments, pension etc. except her back wages w.e.f., 28-08-2007 to 28-10-2015 inasmuch as she did not render her services for the said period. He also place reliance in the case of U.P State Brassware Corpn. Ltd. & Anr Vs Uday Narain Pandey reported in (2006)1 479, Kushum Lata Vs Union of India & Ors reported in (2006) 6 SCC 180, State of Maharashtra & Ors Vs Reshma Ramesh Maher & Anr reported in (2008) 8 SCC 664 & Kendriya Vidyalaya Sangathan & Anr Vs S.C Sharma reported in (2005) 2 SCC 363.

[17] I have considered the submissions forwarded by the learned counsel for all the parties.

[18] There is no dispute before this Court that the petitioner was appointed as Rural Labour Inspector by the order dated 19-10- 1998. However, there is a condition in the order dated 19-10-1998 which clearly indicates that the appointment of the petitioner shall be subject to the outcome of Civil Rule No. 47 of 1994.

WP(C)No. 307 of 2017                                               Page 8
 [19]         Civil Rule No. 47 of 1994 was disposed of by Judgment

and Order dated 17-09-1999 directing the State respondents to appoint the petitioner therein (Mrs. Low Veikhui) to the post of Rural Labour Inspector. It is also an admitted fact that C.R No. 1266 of 1998 by which the appointment of the petitioner was challenged was also allowed by quashing and setting aside the appointment order dated 19-10-2015 by which the petitioner was appointed as Rural Labour Inspector. In the said writ petition, the petitioner was a party respondent. Thereafter, WA No. 12 of 2000 was filed by the petitioner wherein, the Hon'ble Division Bench considered the matter and dismissed the writ appeal by Judgment and Order dated 31-08-2005 along with a further direction to adjust the appointment of the petitioner as Rural Labour Inspector against the vacancy in the post of Inspector of Statistics which would arise w.e.f., 30-09-2005.

[20] The State respondents also filed a review petition being Review Petition No. 5 of 2007 against the Judgment and Order dated 31-08-2005 passed in WA No. 12 of 2000 indicating that the post of Inspector of Statistics had been included in the downsizing/right sizing in the Labour Department , Government of Manipur and that the Government of Manipur had also ready issued an order dated 26-02- 2005 to the effect that the post held by one Shri Anganghal Singh i.e., Inspector of Statistics shall stand abolished as and when the post fell vacant due to the retirement. Considering this aspect, the Hon'ble Division Bench disposed of the Review Petition No. 5 of 2007 by Judgment and Order dated 24-04-2007 by setting aside para No. 20 by the Judgment and Order dated 31-08-2005 and leaving the matter to the wisdom of the State respondents to take steps in the peculiar facts and circumstances of the petitioner.

WP(C)No. 307 of 2017                                                Page 9
 [21]         It was thereafter that the termination order of the

petitioner as Rural Labour Inspector was passed by the order dated 27th August, 2005. The second appointment of the petitioner as Labour Inspector by the order dated 29th October, 2015 originated through the letter dated 6th February, 2014 written by the Deputy Labour Commissioner, Manipur to the Under Secretary (Labour & Employment), Government of Manipur. For better appreciation of the matter in hand, the said letter dated 6th February, 2014 is reproduced herein below:

"GOVERNMENT OF MANIPUR OFFICE OF THE DEPUTY LABOUR COMMISSIONER (Room No. A/10Ground Floor DC(Imphal West District) Office Building, Lamphelpat.

No. Lab/48/83(CA)VOL.IV/1256/14 Lamphelpat, February 6, 2014.

To The Under Secretary (Labour & Employment) Government of Manipur, Imphal.

Subject:- Request for revocation of termination order based on genuine DPC proceedings and in compliance with the Court directions in respect of Smt. Achong Haokip.

Sir, With reference to the Government of Manipur : Secretariat: Labour Department letter No. 5/52/89-Lab (pt.II) dated 28-1-2014 on the subject, I have the honour to state that the applicant, Smt. Achong Haokip was appointed to the post of Rural Labour Inspector as stated by her application. Her service was terminated on 27-08-2007 to vacate the said post while complying with the directions/orders of the Hon'ble Gauhati High Court in Civil Rule No. 47 of 1994 and Civil Rule No. 1266 of 1998. The applicant filed the Writ Petition (C) No. 736 of 2007 to issue by the Hon'ble Gauhati High Court a writ or an order. In the writ petition an interim order dated 1-10- 2007 was passed and issued by the Hon'ble High Court stating that the petition shall not be an obstacle on the part of the Respondents (State of Manipur and the Deputy Labour Commissioner, Manipur) to review the termination order, if permitted by law.

WP(C)No. 307 of 2017 Page 10 In the Writ Appeal No. 12 of 2000 filed by the State of Manipur, the Hon'ble Gauhati High Court directed the State of Manipur to adjust the appointment of the applicant as Rural Labour Inspector against an ensuing vacancy in the post of Statistics vide the Judgment and Order dated 31-06-2006 (Annexure-I). The appointment of the applicant could not be adjusted to the post of Statistics Inspector since the same should be abolished under the State Policy of Down Sizing and Right Sizing of Staff. At present, there is one vacancy in the post of Labour Inspector which is equivalent to the post of Rural Labour Inspector in the Department of Labour and the same is not promotion post as per Recruitment Rules of the post (Annexure-II). The posts of Rural Labour Inspector have been recently merged with the posts of Labour Inspector vide order No. 4/70/2001-Trg (pt) dated 21-12-2013 (Annexure-III).

The applicant remains with heart burning so far in the loss of her employment and has been seeking for relief thereof. She has no chance to get employment under the Government due to her overage for any post while serving more than 10 years in the Department of Labour. Her problems arising out of appointment by the Department of Labour may be considered for removing the same.

It is, therefore, requested that the State Government of Manipur may, kindly, be moved for consideration of the matter for adjustment of appointment of the applicant as Labour Inspector against the said vacant post of Labour Inspector in view of the direction of the Hon'ble Gauhati High Court in the Writ Appeal No. 12 of 2000.

Yours faithfully,

(E. Tomba Singh) Deputy Labour Commissioner, Manipur."

[22] Thereafter, the case of the petitioner was placed before the Cabinet and the Cabinet took its decision on 28-09-2015 approving the proposal for appointment of the petitioner to the post of Labour Inspector in the Labour Department by reviewing her last termination order. Consequently, the order dated 29th October, 2015 appointing the petitioner to the post of Labour Inspector was issued. As the petitioner was not paid her back wages from 28-08-2007 i.e., the date of her termination as Rural Labour Inspector up to to 28-10- 2015 i.e., the date of her appointment as Labour Inspector, she had

WP(C)No. 307 of 2017 Page 11 preferred a representation praying for payment of her back wages. Thereafter, the State respondents after considering the matter had passed the impugned order dated 12th January, 2017 by which the petitioner was granted her service benefits except her arrears and pay and allowances w.e.f., 28-08-2007 to 28-10-2015.

[23] In the case in hand, it is to be noted that when the appointment of the petitioner as Rural Labour Inspector was challenged in Civil Rule No. 1266 of 1998, she was a party respondent where the said Civil Rule was allowed by quashing the appointment of the petitioner as Rural Labour Inspector. The order dated 27-08- 2017 terminating her service was a consequence of a prolonged litigation between the parties. Therefore, in my considered opinion, the respondents cannot be held liable for issuing the termination order dated 27th August, 2017.

[24] In the case of State of Maharashtra & Ors Vs Reshma Ramesh Meher & Anr reported in (2008) 8 SCC 664 the Hon'ble Supreme Court has held as under:

"24. It is true that once the order of termination of service of an employee is set aside, ordinarily the relief of reinstatement is available to him. However, the entitlement of an employee to get reinstated does not necessarily result in payment of full or partial back- wages, which is independent of reinstatement. While dealing with the prayer of back-wages, factual scenario, equity and good conscious, a number of other factors, like the manner of selection; nature of appointment; the period for which the employee has worked with the employer etc.; have to be kept in view. All these factors and circumstances are illustrative and no precise or abstract formula can be laid down as to under what circumstances full or partial back- wages should be awarded. It depends upon the facts and circumstances of the each case.

WP(C)No. 307 of 2017 Page 12

25. In Haryana Roadways Vs. Rudhan Singh: (2005) 5 SCC 591 a three-Judge Bench of this Court has observed that there cannot be a strait jacket formula for awarding relief of back-wages and an order of back- wages should not be passed in a mechanical manner. It has been held that a host of factors, like the manner and method of selection and appointment; the nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character; and the length of service, which the workman had rendered with the employer are required to be taken into consideration before passing any order for award of back-wages. [See also Haryana State Electronics Development Corpn. Ltd. Vs. Mamni: (2006) 9 SCC 434; U.P. State Brassware Corpn. Ltd. & Anr. Vs. Uday Narain Pandey: (2006) 1 SCC 479 and U.P. SRTC Vs. Mitthu Singh: (2006) 7 SCC

180."

[25] It is also important to note that the appointment of the petitioner as Labour Inspector was by way of compassion on the part of the State respondents after taking approval of the State Cabinet for giving her appointment as Labour Inspector. Therefore, the issue raised by the learned counsel for the petitioner that no show cause notice has been issued prior to her dismissal from service does not hold any water as her dismissal from service was consequent to the judicial pronouncement passed by the Gauhati High Court, Imphal Bench. Further, the issue raised by the learned counsel for the petitioner that rule of No Work No Pay cannot apply to the petitioner as she was prevented from rendering her service by the authorities for no fault of the petitioner also holds no water. In the facts and circumstances of the case, I find no merit in the present writ petition and the same is accordingly dismissed.

No cost.

CHONGNUNK Digitally signed by CHONGNUNKIM GANGTE DN: c=IN, o=High court of manipur, ou=HIGH COURT OF MANIPUR, pseudonym=9e33b348bf6bf41a7b7d571fef645245e9c315df39f93d9f

IM GANGTE 997f6f6825f03026, postalCode=795002, st=MANIPUR, serialNumber=3c25b417b8ab4f2e15488e6a09fe004b75d3e17ee1aa6 4940e881eed05f8ce66, cn=CHONGNUNKIM GANGTE Date: 2021.12.09 13:03:34 +05'30' JUDGE kim

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