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2012 DIGILAW 168 (PAT)

Gopal Kumar Sharma v. State of Bihar

2012-01-27

SHIVAJI PANDEY

body2012
JUDGMENT (Per: HONOURABLE MR. JUSTICE SHIVAJI PANDEY) Shivaji Pandey, J.- Heard learned counsel for the petitioners and the State. 2. In this case, the only grievance raised by the petitioners is for payment of salary for the period from 22nd June 1991 to March 1992. In this petition, the petitioners have claimed that they were appointed legally and following the rules of appointment, but they along with others were terminated from service which has been finally set aside by this Court and the matter has been affirmed by the Hon’ble Supreme Court. He has made a claim that for a certain period, because of the act of the respondents, petitioners were not allowed to work for the period in dispute and they cannot be deprived of salary for the aforesaid period on the plea of No work, no pay. 4. In this case, on 21st August 1989, an advertisement was published for appointment of Class-IV employees in different Mufassil Offices in the district of Munger. In pursuance thereof, the petitioners applied and after proper selection they were selected against Class-IV post. On the basis of panel, the petitioners were appointed and they started working in their respective departments. After some time, district of Munger was divided into different districts such as, Munger, Jamui, Lakhisarai and Sheikhpura. While the petitioners were working on their respective posts, their services were terminated vide order dated 21st August 1990 passed by the District Magistrate, Munger. Being aggrieved by the order of the District Magistrate, petitioners challenged the action vide C.W.J.C. No. 5763 of 1990 in which they had claimed that they were illegally appointed and the District Magistrate, Munger illegally terminated their services. 5. This Court vide order dated 18th March 1991 (Annexure-4 to the writ petition), quashed the order of termination as it was found that the action was taken without following the rules of natural justice. In pursuance of the order, petitioners joined their services, but initially they were not allowed to join their respective posts. In May 1991, show cause notices were issued to the petitioners pointing out certain illegalities said to have been committed while making their appointment. Again the services of the petitioners were terminated in a mechanical manner by the District Magistrate, without application of mind. In May 1991, show cause notices were issued to the petitioners pointing out certain illegalities said to have been committed while making their appointment. Again the services of the petitioners were terminated in a mechanical manner by the District Magistrate, without application of mind. It appears from the record that the petitioners and others filed a writ petition bearing C.W.J.C. No. 4411 of 1991 challenging the order of their termination. The matter was heard by a Division Bench of this Court and this Court vide order dated 7th February 1992 directed for payment of their salary for the period from March 1991 to January 1992 and by another order dated 28th February 1992, the Court has remanded back the matter and held that the authority may pass a fresh order after giving personal hearing to the persons concerned. The Court has further stated that the order must specify the particular Government order violation of is stated to be the reason for termination of service, if any. In Para-20 of the writ petition, petitioners have stated that in pursuance of that order, petitioners were reinstated in service with effect from 1st March 1992 and since then, they continued to work against Class-IV post. It appears from the writ petition itself that the Commissioner, after giving notice, again terminated the services of the petitioners and other similarly situated persons approached this Court vide C.W.J.C. No. 5831 of 1992 (Munilal Murmu and others v. State of Bihar and others). It appears that other similarly situated persons were terminated but these petitioners remained in service all through. From Annexure-A to the counter affidavit, it appears that this Court, vide judgment and order passed in C.W.J.C. No. 5831 of 1992 and other analogous cases, allowed the writ petition and set aside the order of termination and ultimately following reliefs were given to the petitioners of that case: “In the facts and circumstances, it is ordered that the petitioners shall not be entitled to any back wages but they will be entitled to wages for the period t hey had actually worked in the establishment. There shall be no order as to costs. It is ordered accordingly.” 6. Learned counsel for the petitioners submitted that against that order the State Government had approached the Hon’ble Apex Court but the same was rejected. There shall be no order as to costs. It is ordered accordingly.” 6. Learned counsel for the petitioners submitted that against that order the State Government had approached the Hon’ble Apex Court but the same was rejected. In this case, petitioners claimed that they were not allowed to work during the period 22nd June 1991 to March 1992 by the authority concerned arbitrarily and they cannot be deprived of the salary for the aforesaid period. 7. Learned counsel for the State has submitted that the petitioners are not entitled to salary for the period in question, in view of judgment and order passed by this Court in C.W.J.C. No. 5831 of 1992 which is related to the similarly situated persons and the relief which has been given to the petitioners of that case can only be granted to the present petitioners. Learned counsel for the State has further relied on the Division Bench judgment of this Court. In this case, this Court has passed the order for reinstatement but the relief of back wages has been denied. The Court gave relief of reinstatement of the writ petitioners with continuity of service only for the purpose of post retiral benefits but they have been refused the monetary benefit for the period the they did not work. 8. Learned counsel for the petitioners, in support of their submission has relied on the judgment of this Court in the case of Rajendra Prasad v. State of Bihar and others, C.W.J.C. No. 10727 of 2009 in which this Court has granted the salary for the period the petitioners illegally remained terminated by the action of the authority and this Court had directed for payment with all consequential benefits. Petitioners have further relied on the case of Bed Mala Kumari…v. State of Bihar, 2010(1) and this Court has reiterated the same principle as in the earlier case. Petitioners also relied on the judgments reported in the case of Hindustan Tin Works v. Employees, 1979 SC 75, Karam Pal v. Union of India, AIR1985 SC 774 J.N. Srivastava v. Union of India (1998)9 SCC 559 Anita Kumari v. State, 2005(1) PLJR 457 , Indu Devi v. Kamla, 2008(2) PLJR 592 and Comm. Karnataka Housing Board v. Muddaiah, (2007)7 SCC 689 . 9. In this case only limited prayer is for salary for the period 22nd June 1991 to March 1992. Karnataka Housing Board v. Muddaiah, (2007)7 SCC 689 . 9. In this case only limited prayer is for salary for the period 22nd June 1991 to March 1992. The fact is that the petitioners were appointed and terminated by the authority on the ground that their appointments were not made as per law which was ultimately held to be illegal by this Court. 10. The earlier view of the Supreme Court was that in the case of illegal termination of service, necessary corollary will be to reinstate a person with back wages but by efflux of time, that view has changed a sweep and the Hon’ble Supreme Court has held that while granting back wages, the interest of both the parties has to be looked into. 11. Petitioners have cited two cases of single Judge which have supported the plea of the petitioners. The judgments relied on by the petitioners are one, reported in the case of Karam Pal (supra) which deals with seniority of assistants and, as such, is not applicable to the facts of this case. Another judgment is J.N. Srivastava (supra) where the question arose with regard to withdrawal of application for voluntary retirement of an employee. In this case, the employee had filed application for withdrawal of his voluntary retirement, but was not allowed to withdraw the same. 12. The Hon’ble Court, relying on the judgment of Balram Gupta v. Union of India, 1989 Supp. SCC 228 has held that the employee was wrongly deprived to withdraw the appeal of voluntary retirement and directed to allow the petitioner of that case to join the post and, accordingly the court has passed the order as follows: “The net result of this order is that the appellant will have to be treated to be in service till the date of his superannuation which is said to be somewhere in 1994 when he completed 58 years of age. The respondent-authorities will have to make good to the appellant all monetary benefits by treating him to have continuously worked till the date of his actual superannuation in 1994. This entitles him to get all arrears of salary and other emoluments including increments and to get his pensionary benefits fixed accordingly.” 13. The Court has held that the principle of No work, no pay will not be applicable in such a situation. This entitles him to get all arrears of salary and other emoluments including increments and to get his pensionary benefits fixed accordingly.” 13. The Court has held that the principle of No work, no pay will not be applicable in such a situation. The facts of this case are quite different to the facts of that case. 14. In the case of Commr. Karnataka Housing Board (sukpra), the Honble Supreme Court held as under: “It is true that while granting relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view of such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee In spite of the facts that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a court of law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the authority to extend all benefits which he would have obtained, had he not been illegally deprived of them.” 15. It appears from the aforesaid observation in Comm. Karnataka Housing Board (supra), the Hon’ble Supreme Court has held that while giving the relief in favour of parties, the Court must consider the relevant provisions of law and issue appropriate direction keeping in view justice, equality and good conscience. 16. In the another case, i.e. Hindustan Tin Works (supra) the Hon’ble Court has directed for payment of back wages upto 70 per cent. Similar view was taken by this Court. 17. The earlier view was that in a case of illegal termination, the Court used to give back wages but that proposition has changed now. 18. In this case, the Division Bench of this Court in a similar class of persons has given the relief of reinstatement but refused to grant back wages. The case of petitioners cannot be better than the case of petitioners of C.W.J.C. No. 5831 of 1992. 18. In this case, the Division Bench of this Court in a similar class of persons has given the relief of reinstatement but refused to grant back wages. The case of petitioners cannot be better than the case of petitioners of C.W.J.C. No. 5831 of 1992. It was a period of June 1991 to Mach 1992. Thereafter the petitioners were allowed to continue in service. 19. In another case of the Divisions Bench in L.P.A. No. 1492 of 2009, The State of Bihar v. Dinesh Thakur this Court has refused to give relief of back wages but has given relief that the period of petitioners will be treated to be in service for he purpose of pension and other benefits but the financial benefit was not given to the petitioners of that case. 20. I am also of the same view that the petitioners will not be entitled for the monetary benefit for the period in question but this period will be treated to be in service. The period in question will not be treated as break in service but it will also be counted for the purpose of increment, pension, gratuity etc. 21. With the observations as above, this writ petition is disposed of. However, it is observed that if the authorities have paid the salary for the period in dispute to any other similarly situated person, then the case of the petitioner may also be considered and for that the petitioners will have the liberty to file representation.