Research › Search › Judgment

Allahabad High Court · body

2005 DIGILAW 1573 (ALL)

RAM KANTH v. STATE OF U. P.

2005-08-23

RAKESH SHARMA

body2005
JUDGMENT : Rakesh Sharma, J. Heard Sri G.S.L. Verma learned Counsel for the Petitioner and learned Chief Standing Counsel for opposite parties No. 1 and 2. 2. The grievance of the Petitioner is that despite setting aside the order of termination by the appellate authority, the appointing authority, i.e. Principal of Bhairo Nath Uchchatar Madhyamik Vidyalaya, Maugarpur, Barabanki, a Government Aided Institution is not permitting the Petitioner a class IV/Group-D post to resume his duties. He is being prevented to work and is not being paid his salary. The employee-employer relations are still continuing. 3. Learned Counsel for the Petitioner has submitted that the Petitioner was appointed on 24.2.1986 as Peon in Bhairo Nath Uchchatar Madhyamik Vidyalaya, Maugarpur, Barabanki. His appointment was duly approved by the District Inspector of Schools, Barabanki. The work, conduct and performance of the Petitioner has remained satisfactory. The said institution is a Government aided college and as per relevant provisions of Intermediate Education Act and the service rules, the Principal is the Appointing Authority for the post of Peon. The Principal of the college, i.e. opposite party No. 4 had issued an order dated 27.2.1987, terminating the services of the Petitioner. The Principal had not followed the procedure as provided under Regulation 25 of Chapter III framed u/s 16G of the Intermediate Education Act, 1921. Neither one month notice nor pay in lieu of notice was tendered to the Petitioner. 4. Being aggrieved of the order of termination dated 27.2.1987, the Petitioner preferred an appeal under Regulation 31 contained in the above said Chapter III of the Intermediate Education Act, before the Committee of Management of the Institution, the opposite party No. 3. The Committee of Management exercising its appellate power under said Regulation 31 had allowed the appeal with full consequential benefits. The order of termination was set aside by the Committee of Management vide its resolution dated 20.4.1987. The Principal of the college had defied the orders passed by the appellate authority. The Petitioner was not reinstated in the services despite submitting his joining report. Being aggrieved of inaction on the part of the Principal, the Petitioner preferred a Writ Petition No. 6717 (S/S) of 1987, 5. The present grievance of the Petitioner is that the District Inspector of Schools, Barabanki has not disposed of the matter as directed by the Court. The Petitioner was not reinstated in the services despite submitting his joining report. Being aggrieved of inaction on the part of the Principal, the Petitioner preferred a Writ Petition No. 6717 (S/S) of 1987, 5. The present grievance of the Petitioner is that the District Inspector of Schools, Barabanki has not disposed of the matter as directed by the Court. It was wrongly indicated in the order that the Petitioner demanded wages for the period when he was prevented to work. The Petitioner made detailed submissions before the District Inspector of Schools in his representation dated 8.2.1996 that the order of termination passed by the Principal has already been set aside by the Committee of Management, the appellate authority. When the Petitioner submitted his joining report to resume charge, he was put back on duty. The Principal of the college prevented him to discharge his duties and functions. The Petitioner had been attending the college every day but he was not permitted to work and to discharge the duties' function and responsibility of the post of peon by the Principal. The Principal was responsible for not allowing the Petitioner to work. 6. In view of these facts and circumstances of the case the District Inspector of Schools, Barabanki has wrongly indicated in the impugned order dated 19.6.1996 that the Petitioner is not entitled for salary as he did not work in the office. Moreover, his submissions have been ignored while disposing of the matter. 7. Sri G.S.L. Verma learned Counsel for the Petitioner has further submitted that Ms. Lalita Pradeep, the then District Inspector of Schools, Barabanki had allowed the representation submitted by the Petitioner on 18.7.1995 and directed the Principal to allow the Petitioner to resume duties but this order has not been implemented by the Principal and the Management of the College. The District Inspector of Schools, Barabanki has excluded from consideration her earlier order while passing the impugned order on 19.6.1996. 8. A counter-affidavit has been filed by the opposite parties indicating therein that the Petitioner was appointed on the post of Zamadar/ Sweeper in furtherance of the order of appointment dated 24.2.1986. The Petitioner's services were terminated on 27.2.1987 u/s 17G and the Regulation 25 of the U.P. Intermediate Act, 1921. The burden has been shifted on the Petitioner that he did not turn up to join his duties. The Petitioner's services were terminated on 27.2.1987 u/s 17G and the Regulation 25 of the U.P. Intermediate Act, 1921. The burden has been shifted on the Petitioner that he did not turn up to join his duties. However, the opposite parties No. 3 and 4 have admitted in their counter-affidavit that the Petitioner was permitted to join on 2.8.1995 and since then he was paid his salary. The Management has pleaded in the counter-affidavit that the District Inspector of Schools, Barabanki's order dated 18.7.1995 was implemented. However, in the counter-affidavit filed by the opposite parties No. 3 and 4 no explanation has been given in not paying salary to the Petitioner thereafter no reasons have been given as to why the Petitioner was not allowed to resume his duties. 9. The District Inspector of Schools, Barabanki has filed separate affidavit indicating therein that the Petitioner's matter was finally settled on 18.7.1995. The appropriate directions were issued by the Management of the college. The District Inspector of Schools, Barabanki has reiterated its version that the Petitioner had not worked from February, 1987 to July, 1995 in the institution and as such he is not entitled for salary. The Petitioner had failed to prove before the District Inspector of Schools, Barabanki, that he had actually worked during the above period. 10. I have heard the learned Counsel for the parties and perused the record. 11. In the present case most of the facts and pleadings of the Petitioner have been admitted by all the opposite parties. It has been admitted by the District Inspector of Schools, Barabanki and the Management of the College in their counter-affidavits, that the Petitioner was appointed on one year's probation on 24.2.1986. His appointment was duly approved by the District Inspector of Schools Barabanki vide letter dated 4.3.1986. The Principal of the college had terminated the service of the Petitioner on 27.2.1987, exercising his power u/s 16 (Cha) Regulation 25 of the U.P. Intermediate Education Act, 1921. It has been admitted by the parties that the Petitioner's appeal submitted u/s 16 (Cha) Regulation 31 Chapter III of the U.P. Intermediate Act was allowed by the appellate authority, i.e. the Committee of Management of the Institution on 20.4.1987. It has been admitted by the parties that the Petitioner's appeal submitted u/s 16 (Cha) Regulation 31 Chapter III of the U.P. Intermediate Act was allowed by the appellate authority, i.e. the Committee of Management of the Institution on 20.4.1987. It is noteworthy that when the Principal of the College did not permit the Petitioner to resume his duty in compliance of the appellate order dated 20.4.1987, the Petitioner had filed Writ Petition No. 6717 (S/S) of 1987 which was disposed of on 2.12.1994. The District Inspector of Schools, Barabanki had given indulgence in compliance of this Court's order and passed the following order on 18.7.1995: 12. The order passed by the District Inspector of Schools, Barabanki was implemented and the Petitioner was allowed to resume his duties in July, 1995. From the pleading of the parties, it is amply clear that the employee-employer relation continued between the Petitioner and the institution. After setting aside the order of termination by the appellate authority, the Petitioner continued in the services throughout and after completion of the period of probation of one year, he can be treated as regular or confirmed employee. 13. Now coming to the point on the payment of salary for the period from March, 1986 to July, 1995, the opposite parties have pleaded in their counter-affidavit that the Petitioner did not work during this period. The chronology of events of this case show that the Petitioner's services were illegally terminated on 27.2.1986 by the Principal of the college and the Petitioner was thrown out of employment. The appellate authority had set aside the order of termination vide resolution dated 20.4.1987, meaning thereby the order of termination ceased to exist. The Petitioner ought to have been allowed to resume his duties as Peon in Bhairo Nath Uchchatar Madhyamik Vidyalaya, Maugarpur, Barabanki by the Principal of the institution, the appointing authority for the post of Peon. The Principal of the Institution, did not permit the Petitioner to resume his duties and was prevented to work throughout. The District Inspector of Schools, Barabanki has passed its order on 18.7.1995 in compliance of this Court's order dated 2.12.1994. When the Principal and the Management of the Institution received the order of District Inspector of Schools, Barabanki, Petitioner was not permitted to resume his duties. The District Inspector of Schools, Barabanki has passed its order on 18.7.1995 in compliance of this Court's order dated 2.12.1994. When the Principal and the Management of the Institution received the order of District Inspector of Schools, Barabanki, Petitioner was not permitted to resume his duties. It is noteworthy that when the Principal of the College did not permit the Petitioner to resume his duty in compliance of the appellate order dated 20.4.1987 the Petitioner had filed Writ Petition No. 6717 (S/S) of 1987 which was disposed of on 2.12.1994. Thus, it cannot be said that the Petitioner has failed to establish his case that he was prevented to work from March, 1986 to July, 1995. The order of termination had already been set aside, ceased to exist. The Petitioner submitted to the administrative control of the appointing authority, the Principal of the Institution and made continuous efforts to resume his duties. 14. In view of these facts and circumstances of the case, it cannot be said that the Petitioner was responsible for not discharging duties, functions and responsibilities of the post of peon in the above institution. The District Inspector of Schools, Barabanki, had not applied its mind to the facts of the case and submission, explanation put forth by the Petitioner before him. In the present case, the employer, the Principal and the Management was responsible for not allowing the Petitioner to resume his duties and not to permit him to perform duties, functions and responsibilities of the post of Peon. 15. The following case laws are relevant which are applicable in the present set of circumstances: (a) The law is settled that salary cannot be denied till the employees' appointment is validly terminated (Jagvir Singh Jatav v. Deputy Director, Education, 1993 SCD All 167, para 4). (b) Normal rule of no work no pay is not applicable where an employee although is willing to work, is kept away from the work by the authorities for no fault of his Union of India Vs. K.V. Jankiraman, etc. etc., AIR 1991 SC 2010 (c) An employee's salary cannot be held illegally without any show cause or any opportunity of hearing (Ajit Kumar Sen v. State of U.P. and Ors. 1998 (2) UPLBEC 1152 , paras 4 and 5). K.V. Jankiraman, etc. etc., AIR 1991 SC 2010 (c) An employee's salary cannot be held illegally without any show cause or any opportunity of hearing (Ajit Kumar Sen v. State of U.P. and Ors. 1998 (2) UPLBEC 1152 , paras 4 and 5). (d) If an employee absented from duty could be suspended and proceeded with departmentally but salary cannot be withheld (Committee of Management v. District Inspector of Schools, Rae Bareli, 1995 UPLBEC 1378, para 6). (e) Even if an employee remains absent without leave, that period should be included in continuous service unless period of absence is treated break in service in accordance with the standing orders of the Establishment (D.B.R. Mills v. Appellate Authority, 1985 (I) LLJ 81 (AP). (f) A Government Servant remains unauthorisedly absent from duties for a period of more than five years and his services have not been put to an end, he is to be allowed to resume his duties (Dr. Kailash Chandra Das v. State of Orissa AIR 1966 Ori 492). (g) A person in Government service continues to be a Government servant till his services are terminated or suspended (Guru Dev Singh v. State of Punjab and Ors. 1981 (2) SLR 464 (Punj). (h) An employee has a right to join his duties, continue in services till termination of his services. He is entitled to get salary (Haridas v. M.S. Swaroop Rani Medical Hospital, Allahabad, 1989 UPLBEC 471. (i) The payment of salary is guaranteed under Article 23 of the Constitution of India vide Full Bench of High Court (State of U.P. v. Sri Madan Mohan, 1990 (2) AWC 1393 (LB): 1990 SCD 546, para 8). 16. In view of above, the writ petition is allowed. A writ of certiorari is issued quashing the impugned order 19.6.1996, passed by the District Inspector of Schools, Barabanki as contained in Annexure-4 to the writ petition. The Petitioner shall be paid his full salary from the date of issuance of the order of termination, i.e. 27.2.1987 till the date of his reinstatement, i.e. up to 31.7.1995. The Petitioner shall be treated to have continued in the services as regular employee of Bhairo Nath Uchchatar Madhyamik Vidyalaya and he shall be entitled for all the benefits. The Petitioner shall be paid his full salary from the date of issuance of the order of termination, i.e. 27.2.1987 till the date of his reinstatement, i.e. up to 31.7.1995. The Petitioner shall be treated to have continued in the services as regular employee of Bhairo Nath Uchchatar Madhyamik Vidyalaya and he shall be entitled for all the benefits. The arrears of salary along with 6% interest shall be calculated by the opposite parties and paid to the Petitioner within two months from the date of production of a certified copy of this order.