Ram Chandra Singh v. Bihar State Road Transport Corporation
1992-02-18
S.K.CHATTOPADHYAYA
body1992
DigiLaw.ai
Judgment S. K. Chattopadhyaya, J. The grievance of the petitioner is that though he was reinstated in his service by order dated 17.9.85, he has not been paid his salary from the date he was discharged i.e. from 5.9.83 to 17.9.85. Further prayer has been made by the petitioner to direct the respondents to grant two time bound promotions to the petitioner, which he is legally entitled to. 2. The facts of the case lies in a narrow compass. The petitioner at the relevant time was posted as Khalasi in the Muzaffarpur Division of the Bihar State Road Transport Corporation (Respondent no. 1) (in short as the Corporation). The petitioner was appointed in the year 1968 and by order dated 5.9.1983, the petitioner was discharged from service with effect from 6.9.1983. As the petitioner was discharged from his service during the pendency of an industrial dispute between the Corporation and its employees (including the petitioner), the Corporation filed an application under section 33 (2) (b) of the Industrial Disputes Act, before the Industrial Tribunal, Patna for approval of the aforesaid order of discharge. The Industrial Tribunal by its order dated 18.12.84 rejected the petition of the Corporation for approval of the said discharge order against the petitioner and as a result of which, the Chairman-cum-Managing Director of the Corporation by his order dated 11.9.1985 ordered for reinstatement of the petitioner with immediate effect. The said order of the Managing Director has been annexed as Annexure-l to this writ application. In pursuance of that order (Annexure-I), the order for posting of the petitioner in Muzaffarpur Depot of the Corporation was passed after lapse of about three months and the petitioner joined the post of Khalasi in the said Division on 14.12.1985. The petitioner has averred that during the intervening period of discharge and reinstatement, the petitioner was not employed anywhere. The petitioner filed several representations before the concerned authorities for payment of his salary for the period from 6.9.1983 i.e. the date of discharge to 13.12.1985 i.e. the date of posting, but those representations were not disposed of and the petitioner has not been paid any salary of the aforesaid period. 3.
The petitioner filed several representations before the concerned authorities for payment of his salary for the period from 6.9.1983 i.e. the date of discharge to 13.12.1985 i.e. the date of posting, but those representations were not disposed of and the petitioner has not been paid any salary of the aforesaid period. 3. During the pendency of this writ application, the petitioner has retired from his service in December, 1990 and the grievance of the petitioner is that neither he has been paid his salary for the aforesaid period nor has been given any time' bound promotion by the concerned authority. The case of the petitioner further is that one Ram Awtar Choudhary, Khalasi and one Charitra Shahi, waterman, including several other Class IV employees of the Corporation had been granted time bound promotion in accordance with the recommendation of the 4th pay Revision Committee but the same is being denied to the petitioner. Regarding grant of time bound promotion, the petitioner also made several representations but those representations also received the same fate. 4. No counter affidavit has been filed in this case on behalf of the Corporation and as such the facts stated in this writ application remained uncontroverted. 5. Mr. Vaidehi Raman Prasad Singh, learned counsel appearing On behalf of the petitioner has submitted that though the order of reinstatement was passed on 11.9.1985, the order of posting was passed after three months and as such the petitioner joined at Muzaffarpur Depot on 14.12.1985. But for the reasons best known to the Corporation the petitioner was not paid his back salaries for the said period. It has been contended further that the petitioner was entitled to get two time bound promotions, one in the year 1978 in view of recommendation of the 4th. Pay Revision Commission's report or at least from 1981, the date on which the said report of the Commission was accepted by the Corporation and the second entitlement for the time bound promotion in 1988. 6. Mr. Karuna Nidhan Kashav, learned counsel appearing on behalf of the Corporation has raised objection to the maintainability of the writ application on the ground that the first relief sought for being a prayer for money and the remedy of the petitioner would be by way of suit, the writ court cannot grant relief to the petitioner. Mr.
6. Mr. Karuna Nidhan Kashav, learned counsel appearing on behalf of the Corporation has raised objection to the maintainability of the writ application on the ground that the first relief sought for being a prayer for money and the remedy of the petitioner would be by way of suit, the writ court cannot grant relief to the petitioner. Mr. Keshav has further contended that remedy by way of suit was barred after expiry of three years from 1985 and as such this writ application cannot be entertained in order to circumvent the period of limitation. Thirdly, it has been contended On behalf of the Corporation that there is no explanation as to why the petitioner joined at Muzaffarpur Division after three months from the passing of the order of reinstatement. Advancing his argument, Mr. Keshav has submitted that as there is no explanation to this regard, it will be deemed that there was a break in service and as such, there is no question of giving time bound promotion to the petitioner. 7. Referring to Annexure-1, the order reinstatement, Mr. Keshav has submitted that after passing of this order, the petitioner has himself admitted that he joined at Muzaffarpur on 14.12.1985 without giving any explanation as to why he joined after three months of the order of reinstatement. Similarly, referring to Annexure-3, the representation filed by the petitioner, Mr. Keshav has submitted that this representation is a bogus one and has been manufactured for filing this writ application, inasmuch as, though the representation, as contained in Annexure-3 is dated 30.5.88, but in the body of the said representation, the date of earlier representation has been given as 17.7.88 which goes to show that there is some suspicion in the filing of the said representation. 8. Taking into account the facts and circumstances of the case, the points to be decided in this case as to whether the salary is property within meaning of Articles 19 (1) (f) and 31 (1) of the Constitution of India and as to whether the writ court can grant such relief to the petitioner or not. 9. The expression "property" used in Articles 19 and 31, in my opinion, must receive the widest interpretation and must be held to refer to property of every kind including debts and choses in action such as unpaid accumulation of wages, pension, cash grants and constitutionally protected privy purse.
9. The expression "property" used in Articles 19 and 31, in my opinion, must receive the widest interpretation and must be held to refer to property of every kind including debts and choses in action such as unpaid accumulation of wages, pension, cash grants and constitutionally protected privy purse. The right to receive wage under a contract of employment with the State, either by virtue of the provisions of the contract or of any statutory provision regulating it must, therefore be held to be property, the deprivation of which would attract the fundamental right. In the case of Deokinandan Prasad Vs. state of Bihar and others, reported in 1971 (2) Supreme Court Cases 330, the Supreme Court has held that the right to receive pension is property under Article 31 (1) of the Constitution and by mere executive order, the State has no power to withhold the same. Elaborating the discussions, the Supreme Court has come to the conclusion that claim of the person to receive pension is also property under Article 19 (1) (f) and as such the order denying the petitioner right to receive pension affects the fundamental rights of petitioner under Articles 19 (1) (f) and 31 of the Constitution and as such the writ petition under Article 37 is maintainable. Similarly, in the case of K. K. Jaggia Superintending Engineer, Haryana PWD Irrigation Department vs. The State of Haryana and another, reported in AIR 1912 578, the Punjab and Haryana High Court has held that in appropriate case, a writ of mandamus directing the authorities concerned to pay arrears of salary would lie. In Paragraph' 8' of the said judgment, it has been held that: "On behalf of the respondents the main challenges to the claims are that they are barred by time and that the petitioner not having worked against these posts during the periods for which the pay is claimed was not entitled to the arrears as rule 4, 18 was not attracted. It was also urged that the appropriate remedy for the petitioner was to file a suit and not to claim arrears through a writ petition under Article 226 of the Constitution.
It was also urged that the appropriate remedy for the petitioner was to file a suit and not to claim arrears through a writ petition under Article 226 of the Constitution. The petitioner cannot be allowed to get over the bar of limitation or the avoid the payment of the Court fee which he would have to pay in a suit for the recovery of the amount claimed says the learned counsel for the respondents. The observations made by Gurdev Singh, J. in K. K. Jaggia v. The State of Punjab 1965 P. L. R. 1092 (Civil writ No. 1646 of 1964) are a complete answer to this argument which was also advanced on behalf of the State in the earlier writ petition filed by Mr. Jaggia. It was observed that the existence of other legal remedies is not per se a bar to the issue a writ under Article 226 of the Constitution and there is no obligation imposed on the Court to relegate the aggrieved party to other legal remedies available. Reference in this respect was made to a decision of the Supreme Court in Calcutta Gas Company (proprietary) .Ltd. V State of West Bengal A.I.R. 1962 S.C. 1044, and Shyam Sunder Derey and others v. Union of India A. I. R. 1965 Cal, 281 and on the basis of the ratio in these cases it was ruled that in appropriate cases a writ of mandamus directing the authority concerned to pay arrears of salary would lie." 10 From the discussion" made above, in my opinion there is no doubt that the writ court, while exercising its power under Article 226 of the Constitution, can direct the respondents to pay the back salary of the petitioner. In such view of the matter, the first point raised on behalf of the Corporation is rejected. 11. It is an uncontroverted fact that the petitioner was reinstated by order dated 11.9. 1985 and the posting order was passed after three months and petitioner joined In Muzaffarpur Depot on 14.12.1985 12. From the order of reinstatement as contained in Annexure-l it appears that the petitioner was posted at Muzaffarpur Division. Mr.
11. It is an uncontroverted fact that the petitioner was reinstated by order dated 11.9. 1985 and the posting order was passed after three months and petitioner joined In Muzaffarpur Depot on 14.12.1985 12. From the order of reinstatement as contained in Annexure-l it appears that the petitioner was posted at Muzaffarpur Division. Mr. Keshav, has submitted that when the order of reinstatement dated 11.9.85 itself shows that the petitioner was posted at Muzaffarpur there was no question of passing any fresh posting order and as such petitioner's joining at Muzaffarpur Depot after three months from 11.9.85 will be treated to be break in service. In my opinion, this argument of the learned counsel is devoid of any merit, Annexure-1 shows that petitioner was posted at Muzaffarpur Division as soon as he was reinstated. It is no doubt that the petitioner has stated that the posting order was passed after three months and on the basis of the same he joined at Muzaffarpur Depot of the Corporation on 14.12.1985 but by order of reinstatement the petitioner was posted in the Muzaffarpur Division of the Corporation though no specific Depot was assigned to him. As such, when the order of posting was passed, the petitioner joined at Muzaffarpur Depot as Khalasi on 14.12.1985. It is not the case of the corporation that there are only one Depot under the Muzaffarpur Division of the Corporation and as such though by Annexure-1, the petitioner was posted in Muzaffarpur Division but posting of the petitioner in a particular depot was not given by the order dated 11.9.1985, and as such when specific depot was assigned to the petitioner for joining, the petitioner joined Muzaffarpur depot on 14.12.1985. Thus the stand of the Corporation that in compliance of the order of reinstatement, the petitioner did not join Muzaffarpur Division for more that three months cannot be sustained. Secondly, the argument on behalf of the Corporation that the petitioner did not comply with the order, as contained in Annexure-l and he joined at Muzaffarpur Division after three months from passing of that order cannot be accepted on simple reason that if actually the petitioner disobeyed the order of reinstatement dated 11.9.1985 by not joining the Muzaffarpur Division, the Corporation would have taken disciplinary action against the petitioner for such disobedience. But this is not the case here.
But this is not the case here. It has been stated earlier that the Corporation has not chosen to file any counter affidavit and as such the argument advanced by Mr. Keshav that the petitioner has flouted the order of reinstatement is misconceived. 13. It is true that there is some confusion in the dates as mentioned in Annexure-3, the representation of the petitioner, alleged to have been filed on 30.5.1988, but the Corporation cannot take advantage of this. Apart from Annexure-3, Annexure-2 is another representation filed by the petitioner for sympathetic consideration of his case, but the representation was not considered. 14. The fact cannot be disputed that the moment the order of reinstatment was passed on 11.9.1985 the petitioner was entitled to get his back wages and non-payment of the back salary for the period of discharge i.e. 6.9.1983 till date of reinstatement i.e. 11.9.1985, would certainly attract the fundamental right to property. My aforesaid view will get support from the case of Kul Bhushan Chopra v. The Punjab National Bank and others, reported in 1979 Labour & Industrial Cases 699. 15. The submission made on behalf the Corporation that because the period of limitation for filing suit for recovery of the amount has expired, the petitioner is not entitled to get any relief from this Court. The argument of Mr. Keshav that only because the limitation period for filing the suit has expired, the petitioner has come to this Court by invoking the writ jurisdiction and as such the relief should not be granted on that score. In my opinion, this type of plea is unwarranted on the mouth of Government or its authority. In the case of the Madras Port Trust v. Humanshu International, reported in AIR 1979 SC 1144 , the Supreme Court has observed that the plea of limitation based on section 110 of the Madras Port Trust Act, (II of 1905) is one which the Court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen.
The Supreme Court has disapproved such plea by observing that it is high time that governments and public authorities adopt the practice of not relying upon technical pleas fur the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. 16. From the discussions made above and on the basis of authoritative pronouncement of the Supreme Court, I am of the opinion that the petitioner is entitled to get his back wages from the date of discharge till the date of his posting, inasmuch as, according to the petitioner, the petitioner was getting his pay from 14.12.1985. 17. As far as the question of time bound promotion is concerned, there is nothing on record to show that after order of reinstatement, there was any break in service or there was any adverse remarks against the petitioner. The petitioner duly retired in December, 1990. In such view of the matter, there is no reason as to why the petitioner should not be given two time bound promotions. As the petitioner has already retired, the petitioner will get only monetary benefit by giving two time bound promotions and no other employees are going to be affected, if two time bound promotions are granted to the petitioner. 18. Learned counsel for the Corporation could not controvert this position except submitting that there was a break in service because the petitioner joined at Muzaffarpur Division after three months from the passing of the order of reinstatement, but this argument has already been rejected earlier by me. 19. In the result, the writ application is allowed, the respondents are directed to make payment to the petitioner his back salary from 6.9.1983 till 13.12.1985 within one month's from the date of receipt of this order. It is further directed that the petitioner will get all monetary benefits of two time bound promotions which were not given to him. This benefit also must be given to the petitioner within the same period. 20. In the facts and circumstances of the case, the parties will bear their own costs. Application allowed.