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Madhya Pradesh High Court · body

2010 DIGILAW 13 (MP)

Satish Kumar Khare v. State of M. P.

2010-01-05

RAJENDRA MENON

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JUDGMENT : Rajendra Menon , J.:- Normallywhen a action is found to be illegal and is set asideor direction issued to the contrary, the delinquent is entitled to all theconsequential benefits, it is only under exceptional circumstances thatconsequential benefits of arrears of salary etc are denied. Inthe present case even though the Collector has not indicated any reason fordenying the salary of the intervening period. The respondents in theirreply have raised three objections. Thesecond objection is that the petitioner has not indicated that he has notgainfully employed during the intervening period. Along with the rejoinderfiled, petitioner has specifically filed an affidavit indicating that he is aphysical handicapped and Samajik Suraksha Pension of Rs.150/- which the petitioner was getting under the special schemeof the Ministry of Social Welfare Department is only given to the physicaldisability of the petitioner and that does not disentitle the petitioner fromclaiming the salary for the intervening period. Thisobjection raised to the effect that the petitioner was getting certain pensionunder Samajik Suraksha Pension Scheme and therefore not entitled to the salary is not sustainable. Samajik Suraksha Pension ofRs.150/- per month is being granted to the petitioner due to physicaldisability of the petitioner on the basis of certain policy and schemesformulated by the State Govt. and implemented by the Ministry of Social WelfareDepartment and if the petitioner, considering his physical disability isgranted the said pension, salary cannot be denied to the petitioner merelybecause he is getting certain pension, the aforesaid ground and objectionraised by the respondents is found to be unsustainable and rejected. It mayfurther be taken note that the said amount of Rs .150/- which the petitioner was getting when he was out of employment, but afterreinstatement of the petitioner in pursuance to the order passed by theCollector, the pension has been discontinued. Thethird objection is regarding gainful employment of the petitioner, in thepresent case except for making vague and unspecific averments and allegations,particularly of the employment, the nature of work performed, the establishmentwhere the petitioner was working are not indicated and no material is adduced by the respondents to show as to how and in what manner thepetitioner was gainfully employed and earned his wages. In the absence ofmaterial to show that the petitioner was gainfully employed and earned wagesduring the intervening period the benefit of salary to the petitioner cannot bedenied. In the absence ofmaterial to show that the petitioner was gainfully employed and earned wagesduring the intervening period the benefit of salary to the petitioner cannot bedenied. The respondents having failed to prove gainful employment of thepetitioner cannot now raise the ground without supporting documentary or othermaterial to substantiate their contention. TheSupreme Court in the case of Commissioner, Karnataka Housing Board (supra) haslaid down the principles that in a given case if it is found that the personwas willing to work and he was illegally and unlawfully prevented for workingthen the principle of no work no wages may be deviated and in suchcircumstances direction can be issued to the parities concerned to pay salaryto the petitioner. In the present case this court has to take note of certainpeculiar circumstances i.e. the petitioner is physical handicapped and he wasappointed to the post in question, the appointment is in existence and has notbeen cancelled in accordance with law, he was willing to work and in fact hewas permitted to join and discharge duties for a particular period of time andthereafter the finding recorded is that he was illegally prevented fromworking. That being so it is a fit case where the salary for the interveningperiod should be granted to the petitioner as it is a case where even thoughpetitioner was willing to discharge his duties and earn his wages, it was theillegal action of the respondents which prevented the petitioner formdischarging his duties. Accordingly,in the facts and circumstances of the case this court is of the considered viewthat in denying the wages to the petitioner for the intervening period anddeclining the same on the principle of no work no wage, the Collector concernedhas committed a grave error which warrant interference and to the extent theorder dated 11-03-2002 passed by the Collector warrants modification and isaccordingly modified. This petition is allowed. The Municipal Councilrespondent nos. 3 and 4 are directed to pay salary and allowance to thepetitioner for the post in question during the period when the petitionerremained out of employment i.e. form 1st April 1909 till his joining inpursuance to the order passed by the Collector on 11-03-2002. The aforesaidamount be paid to the petitioner within a period of two months form the date ofreceipt of the certified copy of this petition.