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Madhya Pradesh High Court · body

2012 DIGILAW 1186 (MP)

Tula Ram v. State of M. P.

2012-11-20

SUJOY PAUL

body2012
ORDER 1. This is second visit of the petitioner to this Court by way of present writ petition. Earlier, petitioner filed an original application before the then existing M.P. State Administrative Tribunal. On abolishment of the Tribunal, the said matter was transferred to this Court and was re-registered as W.P. No. 2992/03. 2. The grievance of the petitioner in the said writ petition was that his juniors were regularized, but he has not been regularized. This Court decided the matter on 10/08/2004. The relevant portion of the said matter reads as under:- “Respondents have filed reply and it is stated by them in the reply that even though the orders were passed for regularizing several employees but for want of vacancy, petitioner could not be regularized and therefore his services were dispensed with. In compliance of order of Tribunal dated 1.7.1995, information is submitted that out of 43 persons regularized vide Annexure-P/3, 24 persons are still working and 19 persons have been removed. According to petitioner his name is at serial No. 33 and persons junior to him at serial No. 38, 41, 42 and 43 are still continuing according to the information submitted by the respondents. Considering the same, it is therefore clear that persons junior have been retained and petitioner who was senior to these persons has been removed. In that view of the matter, respondents are directed to reinstate the petitioner in service and grant him benefit of regularization as was granted to persons immediately junior to him, However, petitioner shall only be entitled to reinstatement and proforma fixation of pay in comparison to his juniors and for the intervening period, he shall not be entitled to wages, the same shall be treated as “no work no pay”. (Emphasis Supplied) 3. The petitioner in obedience of the said order, immediately preferred a representation dated 10/09/2004 and submitted his joining before the District Education Officer. However, the respondents took a long time to permit the petitioner to resume by communication dated 12/05/2007 Annexure-P/7. Petitioner was permitted to join and it was decided that from the date of resuming charge, the petitioner shall be entitled to get salary on the basis of Collector rate and the earlier period shall be treated as “ no work no pay”. 4. Petitioner was permitted to join and it was decided that from the date of resuming charge, the petitioner shall be entitled to get salary on the basis of Collector rate and the earlier period shall be treated as “ no work no pay”. 4. Learned counsel for the petitioner submits that in obedience of the order passed by this Court in W.P. No. 2992/03, the respondents were required to regularize the petitioner from the date, a person immediately junior to him was regularized. The Court directed for proforma fixation of pay in comparison to his juniors, which itself shows that the Court intended to grant him the benefit of retrospective regularization at par with his juniors. By criticizing the order Annexure-P/7, Shri Anil Sharma submits that by no stretch of imagination the intervening period can be treated as ‘no work no pay’. Learned counsel for the petitioner further submits that there was a delay in implementing the order of this Court dated 10/08/2004 and therefore, petitioner cannot be deprived from the arrears of wages for the said period. 5. Per contra, Shri Anil Shrivastava learned Panel Lawyer supported the order and submits that when order of writ petition was not complied with, a contempt petition 04/05 was filed. During pendency of the said contempt petition, the order dated 12/05/2007 Annexure-P/7 was issued and produced before the Bench. On the basis of that order, the Court showed its satisfaction that order dated 10/08/2004 is complied with and therefore, the petition is not entertainable. He also supported the order Annexure-P/7. 6. I have heard learned counsel for the rival parties and perused the record. 7. A bare perusal of the order passed by the Writ Court dated 10/08/2004, makes it crystal clear that respondents were obliged to undertake the following exercise:- (1) to regularize the petitioner from the date, a person immediately junior to him was regularized. (2) to fix his pay on proforma/notional basis in comparision to his juniors for the intervening period. (3) he will not be entitled for back wages on the basis of ‘no work no pay’. The order of this Court is crystal clear on the basis of which the respondents should have examined the case of the petitioner for regularization and should have regularized him from the date his juniors were regularized. (3) he will not be entitled for back wages on the basis of ‘no work no pay’. The order of this Court is crystal clear on the basis of which the respondents should have examined the case of the petitioner for regularization and should have regularized him from the date his juniors were regularized. The order Annexure-P/7 is silent on this aspect and the respondents have not undertaken the exercise of regularizing the petitioner from the date of his junior’s regularization. The respondents have belatedly permitted the petitioner to join back. The petitioner promptly perferred representation after the order of the Writ Court on 10/09/2004, but respondents permitted him to join only in the month of May, 2007. Thus, petitioner was all along willing to be reinstated, but for the reasons solely attributable to the department, he was not permitted to join. Thus, principle of ‘no work no pay’ cannot be applied after the order of Writ Court dated 10/08/2004 and till joining of the petitioner by order dated 12/05/2007. Accordingly, I am unable to upheld the action of the respondents in not paying him arrears of salary from the date of submission of joining i.e. 10/09/2004 till he was actually permitted to resume back. 8. This is settled in law that principle of ‘no work no pay’ has no application in cases where the employee is willing to perform the duty and the employer does not permit him for the reasons solely attributable to the employer. This view is taken by the Apex Court in the case of Union of India and others Vs. K.V. Jankiraman and others reported in (1991)4 SCC 109 in para 25 held as under:- “25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of “no work no pay” is not applicable to case such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases. 9. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases. 9. Accordingly, in the considered opinion of this Court, petitioner is entitled to get arrears of salary from the date, when he submitted his joining i.e. 10.09.2004 till he was actually permitted to join the services. 10. As discussed above, the respondents have not undertaken the exercise of regularizing the petitioner from the date his juniors were regularized. Thus, the respondents are required to forthwith regularize the petitioner from the date his juniors were regularized and his proforma fixation is required to be done from the date of regularization of his juniors. The peitioner on regularization will be entitled to get the salary at the rate which was applicable to an employee on regularization. In other words, the petitioner shall be entitled to get the same benefits, which have been granted to his juniors when they were regularized prior to him. 11. In the considered opinion of this Court, this litigation is an avoidable litigation and petitioner was compelled to file this petition because of insufficient compliance by the respondents. In the considered opinion of this Court, if there is insufficient compliance, the matter could not be dealt with in contempt jurisdiction. The satisfaction of contempt Court is to be read only to that extent and it would not mean that this Court has given a finding that the order is complied with in letter and spirit and in pith and substance. The judgment of Supreme Court in Union of India Vs. Subedar [ (2006) 1 SCC 613 ] is relevant on this aspect. Accordingly, the said order passed in contempt petition on 14/05/2007 is of no assistance to the respondent-department. The order passed by this Court on 10.08.2004 has attained a finality and therefore, respondents are under a legal obligation to implement it in its true spirit. 12. On the basis aforesaid analysis, this petition deserves to be and is accordingly allowed. The respondents are directed to undertake the following exercise:- (1) To regularize the petitioner from the date his juniors were regularized and pass an appropriate order in this effect. (2) To fix the pay on proforma basis from the date of regularization of his juniors. 12. On the basis aforesaid analysis, this petition deserves to be and is accordingly allowed. The respondents are directed to undertake the following exercise:- (1) To regularize the petitioner from the date his juniors were regularized and pass an appropriate order in this effect. (2) To fix the pay on proforma basis from the date of regularization of his juniors. The arrears arising out of the said proforma benefits be granted to the petitioner from the date of submission of his joining i.e. 10/09/2004. (3) From 10/09/2004 till the petitioner was actually permitted to perform his duties, back wages be paid to the petitioner. (4) The aforesaid exercise be completed by the respondents positively within 60 days, failing which it will carry interest @ 6% p.a. till the date of realization. Since, the respondents have compelled the petitioner to file this avoidable litigation, I deem it proper to impose cost on the respondents. Accordingly, respondents shall pay Rs. 5,000/- (Rupess Five Thousand Only) as cost to the petitioner. The State is at liberty to recover the costs and interest from the erring officials.