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Madhya Pradesh High Court · body

2015 DIGILAW 849 (MP)

Pushpa Chaturvedi v. State of M. P.

2015-08-14

ROHIT ARYA

body2015
JUDGMENT : ROHIT ARYA, J. 1. By this writ petition under Article 226 of the Constitution of India, petitioner has challenged the legality, validity and propriety of the order dated 5/2/2007 passed by the respondent No. 2-Collector. 2. A coordinate Bench of this Court in earlier round of litigation has passed the order dated 2/3/2006 between the same parties in W.P. No. 3619/2003. Operative part of the aforesaid order reads as under:- "11..........The impugned order dated 9.11.1995, Annexure A/7 fixing the seniority of the petitioner with effect from 27.3.1977 is quashed and the order dated 13.9.1996, Annexure A/9 regarding recovery of difference of pay from the salary of the petitioner is also quashed. It is directed that the petitioner shall be entitled the seniority from 24.3.1975 and it is directed that the respondents shall refix the seniority of the petitioner and reconsider her case for withdrawal of the cancellation of promotion order and her seniority be restored with effect from 24.3.1975 and the petitioner shall be entitled for all consequential benefits." 3. Respondents in purported compliance of the aforesaid order have passed the impugned order dated 5/2/2007 to the following effect:- "(i) that as per the recommendation of the review DPC dated 28/1/2007, the petitioner was accorded seniority with effect from 24/3/1975 and promoted on the post of Assistant Grade II from 22/5/1990 i.e. the date on which the petitioner was promoted; (ii) fixation of pay initially from the aforesaid date of promotion and monetary benefits from the date of submission of joining on the promoted post on the principle of NO WORK NO PAY and not from intimidate date." 4. The petitioner is aggrieved by non-extension of benefit of salary for the period during which she was denied right to perform her duties on the promotional post. 5. Facts necessary for disposal of this petition are to the effect that petitioner was initially appointed as LDC-cum-typist vide order dated 20/12/1974. The condition was stipulated in the said appointment order that incumbent was required to qualify Hindi typing test within a period of one year from the date of appointment. Petitioner was regularized vide order dated 24/3/1975. She however, cleared the typing test after one year on 27/3/1977. The condition was stipulated in the said appointment order that incumbent was required to qualify Hindi typing test within a period of one year from the date of appointment. Petitioner was regularized vide order dated 24/3/1975. She however, cleared the typing test after one year on 27/3/1977. She was accorded status of quasi permanent employee vide order dated 21/8/1981 and thereafter promoted as Assistant Grade II vide order dated 22/5/1990; however, this order was cancelled vide order dated 17/8/1990 but again she was promoted vide order dated 28/8/1990. As late as in the year 1995, a show cause notice dated 25/4/1995 was issued to her calling upon her to show cause as to why promotion accorded to her should not be cancelled for having not passed the Hindi Typing Test within the stipulated period of one year from the date of her appointment and ultimately her promotion order was cancelled vide order dated 9/11/1995. Appeal arising there from was dismissed vide order dated 6/5/1996 and order of recovery was issued on 13/9/1996. Being aggrieved thereby, petitioner had preferred W.P. No. 3619/2003, which has been allowed vide order dated 2/3/2006. Operative portion of the order is already quoted in preceding para of order. 6. Learned counsel for the petitioner contends that once the writ Court has quashed the order dated 9/11/1995 ordering re-fixation of seniority w.e.f. 27/3/1977 and order dated 13/9/1996 regarding recovery of dues of pay from the salary of the petitioner and thereafter held petitioner entitled for seniority w.e.f. 24/3/1975 with direction to reconsider her case for withdrawal/cancellation of promotion and declaration that the petitioner is entitled for all consequential benefits, petitioner cannot be denied salary for the period she was illegally denied to perform her duties on the promotional post on the general principle of NO WORK NO PAY. Petitioner cannot be held responsible for having not discharged her duties of promotional post at her own will. Instead respondents restrained her from discharging her duties. Against such illegal action, she has all along pursuing her remedy and did not sit idle. Therefore, non-performance of duties of promotional post was an involuntary act for which petitioner cannot be held accountable. 7. Instead respondents restrained her from discharging her duties. Against such illegal action, she has all along pursuing her remedy and did not sit idle. Therefore, non-performance of duties of promotional post was an involuntary act for which petitioner cannot be held accountable. 7. Per contra, learned counsel for the respondents/State submitted that as petitioner did not pass Hindi Typing Test within one year from the date of her appointment on 20/12/1974, as per terms of the appointment letter, hence, her regularization was not in accordance with law. Therefore, consequentially her promotion by order dated 22/5/1990 was also not legal and proper. Under such circumstances, non-performance of duties by the petitioner on the promoted post during the sustenance of the cancellation order dated 9/11/1995 led to application of general principles of NO WORK NO PAY. Therefore, no illegality can be found for denial of wages for the said period. 8. Heard learned counsel for the parties. 9. In the conspectus of the facts and circumstances of the case in hand explained above, the question that arises for consideration is as to whether the petitioner is entitled to salary for the period during which she did not perform the duties on promoted post as Assistant Grade II from 22/5/1990 till the date of her joining on the said post in pursuance of the order dated 5/2/2007, or her claim for salary can be legitimately denied on the principle of No Work, No pay. 10. The principle underlying the doctrine of NO WORK NO PAY is to the effect that if a person has worked, he must be paid and if he has not worked, he should not be paid; a general principle. However, in service jurisprudence various other contingencies/situations arise giving rise to claim of wages. For instance, if the employee himself is responsible for having not performed the duties, or, if the employer has denied the employee opportunity or right to perform his duties. In both the situations, the employee has not worked, but, the former is a voluntary act, whereas the latter is an involuntary act. For instance, if the employee himself is responsible for having not performed the duties, or, if the employer has denied the employee opportunity or right to perform his duties. In both the situations, the employee has not worked, but, the former is a voluntary act, whereas the latter is an involuntary act. Under such circumstances, application of the general principle of NO WORK NO PAY cannot be applied and the issue as regards claim of salary/wages is required to be addressed by the Court in right perspective, (i) to ascertain as to whether the act of non performance of duties on the part of the employee was a voluntary act or an involuntary act with regard to the facts and circumstances of the given case, (ii) factors like source of employment, nature of employment, conduct of employee, and at the same time; (iii) factors like status of employer, financial viability of the establishment, accountability of the employer in the context of non performance of duties etc. Such factors are illustrative in nature, though not exhaustive. The Court is also required to bear in mind that while applying the doctrine of NO WORK NO PAY, the Court is not only required to see whether it would be lawful to pay or not to pay the salary, but also as to whether the claim is due to the employee or not in the facts and circumstances of the case, as the buzzword in such a case is "Doing justice between the parties". Therefore, a just balance needs to be struck. The doctrine of NO WORK NO PAY on one hand, and the consistent view of Hon'ble the Supreme Court that this doctrine is not absolute and cannot be applied as a thumb rule; U.P. State Brassware Corp. Ltd. v. Uday Narain Pandey (2006) 1 SCC 479 , Gujarat Agricultural University v. All Gujarat Kamdar Karamchari Union 2009 (15) SCC 335 and State of U.P. v. Dayanand Chakrawarty, (2013) 7 SCC 595 , referred to. 11. Now turning to the facts in hand, the petitioner though did not pass the Hindi Typing Test within one year from the date of her initial appointment i.e. 20/12/1974, passed the same on 27/3/1977. She was granted regular appointment vide order dated 24/3/1975. 11. Now turning to the facts in hand, the petitioner though did not pass the Hindi Typing Test within one year from the date of her initial appointment i.e. 20/12/1974, passed the same on 27/3/1977. She was granted regular appointment vide order dated 24/3/1975. Since then she has been performing her duties as Lower Division Clerk cum Typist and her name was reflected in the Seniority list published on 1/4/1999 and she was granted seniority with effect from 24/3/1975. Her claim for promotion as Assistant Grade II was considered in the year 1990 and she was promoted as Assistant Grade II vide order dated 22/5/1990. The said order of promotion was cancelled on 17/8/1990 and thereafter vide order dated 28/8/1990, she was again promoted on the post of Assistant Grade II. Thereafter, she continued to perform her duties on the promoted post. In the year 1995 i.e. on 25/4/1995, she was called upon to show cause as to why the promotion should not be withdrawn and recovery be not made for the reason that she had not qualified Hindi Typing Test within one year from the date of her initial appointment. Vide order dated 9/11/1995, her promotion order was cancelled and she was demoted on the post of Lower Division Clerk cum Typist. The appeal preferred by her suffered dismissal vide order dated 6/5/1996. Thereafter, on 13/9/1996 recovery was ordered to be initiated, against which the petitioner preferred an original application before the erstwhile State Administrative Tribunal. Upon its abolition, the same was transferred to this Court and was registered as W.P. No. 3619/2003. This Court, vide order dated 2/3/2006, has found that the impugned order dated 9/11/1995 fixing her seniority with effect from 27/3/1977 and that of recovery dated 13/9/1996 were bad in law and, accordingly, quashed the same. The respondents convened a review DPC meeting on 28/1/2007 and vide order dated 5/2/2007 held the petitioner entitled for seniority from the date she was initially appointed i.e. 24/3/1975 and promoted her to the post of Assistant Grade II with effect from 22/5/1990, but limited the benefits to notional seniority and notional fixation of pay on the promoted post with effect from the date of promotion. However, she has been denied actual salary for the period 22/5/1990 till the date of her joining on the promoted post, on the principle of NO WORK NO PAY. 12. However, she has been denied actual salary for the period 22/5/1990 till the date of her joining on the promoted post, on the principle of NO WORK NO PAY. 12. True it is, that petitioner had not qualified Hindi Typing Test within one year from date of her initial appointment, but she cleared the test on 27/3/1977 and thereafter, she was declared as quasi permanent employee vide order dated 21/8/1981 and accorded seniority w.e.f. 24/3/1975 in the cadre of Clerk-cum-typist. Promotion was accorded to her as Assistant Grade II as per her seniority vide order dated 22/5/1990. Writ Court has found that cancellation of promotion order vide order dated 9/11/1995 is illegal and restored her seniority w.e.f. 24/3/1975. Under such circumstances, in the opinion of this Court, petitioner cannot be held responsible for having not discharged the duties on promoted post for the period from year 1995 till passing of impugned order dated 5/2/2007 in purported compliance of order passed by Writ Court dated 2/3/2006. Instead, she was forced not to perform her duties on promotional post, therefore, she is held entitled for arrears of salary for the period during which she did not perform her duties as Assistant Grade II; however, in the peculiar facts and circumstances of the case and long period since has lapsed in culmination of proceedings, it is considered apposite to restrain payment of wages to the extent of 50% of salary to be calculated at the rate of existing salary at relevant point of time available on that post from time to time with revised benefits. Let this exercise be completed within a period of six months from the date of production of certified copy of this order by the petitioner, and the amount so determined be released to the petitioner forthwith, failing which the unpaid amount shall carry an interest @ 6 % per annum from the date it became due until the date of payment. 13. Petition stands allowed and disposed of to the extent indicated hereinabove.