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Allahabad High Court · body

2016 DIGILAW 4025 (ALL)

HARISH KUMAR MISHRA v. STATE OF U. P.

2016-12-15

RAJAN ROY

body2016
JUDGMENT Hon’ble Rajan Roy, J.—Heard. Considering the facts and issues involved, as there is not much of a factual dispute there is no need to call for counter-affidavit. 2. Heard Sri Ramesh Pandey, learned counsel for the petitioners, Sri Sanjay Tripathi, learned counsel for Nagar Palika Parishad, and Sri B.L Verma for the State who has produced the copy of the G.O. dated 11.5.2009 which is referred in the impugned order. 3. The facts of the case in brief are that the petitioners filed Writ Petition No. 4280 (S/S) of 1996 claiming regularization of their services which was allowed on 23.12.2005. The said judgment was not complied with on the ground that vacancies were not available. Subsequently, on 18.5.2006 the services of the petitioners were terminated by Executive Officer, Nagar Palika Parishad, Sultanpur. The petitioners challenged the order of their termination from services by means of Writ Petition No. 4929 (SS) of 2006 wherein, on 26.5.2006 the following order was passed: “Notice on behalf of opposite parties No. 1 and 2 has been accepted by the learned Standing Counsel, while notice on behalf of opposite parties No. 3 to 5 has been accepted by Sri A.K Bajpai, who pray for and are granted six weeks’ time to file counter-affidavit. Two weeks thereafter is allowed to the counsel for the petitioners to file rejoinder-affidavit. List in the month of August, 2006. Learned counsel for the petitioners submits that the petitioners are working as daily wagers since 1989 and 1990 and thereafter they have been paid minimum wages also in pursuance of the interim order passed by this Court. This Court passed a final judgment on 23.12.2005, wherein it was provided that the opposite parties will consider the case for regularization of the petitioners on Group-D post against the sanctioned post. Petitioners’ counsel draws the attention of the Court towards Annexure 14 and submits that the petitioners’ regularisation has been refused and after refusal of the regularization their services have also been dispensed with. The submission is that in pursuance to the judgment and order dated 23.12.2005 the opposite parties were required to consider the regularization of the petitioners. The regularization is under process, is the submission of Sri A.K Bajpai, learned counsel for the opposite parties No. 3 to 5. The submission is that in pursuance to the judgment and order dated 23.12.2005 the opposite parties were required to consider the regularization of the petitioners. The regularization is under process, is the submission of Sri A.K Bajpai, learned counsel for the opposite parties No. 3 to 5. He further submits that the matter has been referred to the State Government and the State Government has not taken any decision. He also submits that Annexure 14 is a mere correspondence between the Executive Officer and the Water Works Engineer of the Nagar Palika Parishad. The submission is that the regularization has not been finalised up till now. The learned Standing Counsel submits that the only question which remains for consideration, is with regard to sanction of post and financial approval by the State Government, but so far as the regularization is concerned, that has to be considered by the Nagar Palika Parishad. I have heard the learned counsel for the parties and gone through the record. From the submissions of the learned counsel for the opposite parties it is clear that regularization has not been finalised up till now and the matter has been referred to the State Government for sanction of post and according financial approval. The opposite parties have acted in haste and thereby dispensed with the services of the petitioners before any decision could be taken in accordance with law in pursuance to the judgment of this Court dated 23.12.2005. The said judgment has not been challenged by the Nagar Palika Parishad in Special Appeal as well. Learned counsel for the opposite parties, Sri A.K Bajpai, has placed reliance upon the decisions in Secretary, State of Karnataka and others v. Umadevi and others, (2006) 4 SCC 1 and Avas Vikas Sansthan and another v. Avas Vikas Sansthan Engineers Assn. and others, (2006) 4 SCC 1 32. The above cases do lay down a law that daily wagers have got no right for regularisation. The case of Avas Vikas Sansthan (supra) pertains to abolition of post, whereas in the case of Uma Devi and (3) others (supra) the Constitution Bench has taken a different view for the persons who are working more than 10 years. The above cases do lay down a law that daily wagers have got no right for regularisation. The case of Avas Vikas Sansthan (supra) pertains to abolition of post, whereas in the case of Uma Devi and (3) others (supra) the Constitution Bench has taken a different view for the persons who are working more than 10 years. In the present case, the petitioners were appointed in 1989 and 1990 and since they are continuously working.Their regularisation process is under way and the judgment of this Court dated 23.12.2005 having not been challenged has become final. The opposite parties should have waited up to the period they were considering regularisation, but before finalisation of the regularisation process, terminating the services of the petitioners is wholly illegal. The petitioners’ would be allowed to continue as earlier up to the time their regularisation is considered by the opposite parties. The State Government will take a decision with regard to sanction of the post within a period of three months from the date a certified copy of this order is produced before it and thereafter the Nagar Palika Parishad will act in accordance with the judgment rendered by this Court dated 23.12.2005.” 4. On a bare perusal of the aforesaid interim order it is evident that the termination of the petitioners’ services before finalization of the regularization process was prima facie found to be illegal, as such a direction was issued to allow them to continue as earlier up to the time their regularization is considered by the opposite parties. State Government was directed to take a decision regarding sanctioning of post in this regard and the Nagar Palika Parishad was to act in accordance with the judgment dated 23.12.2005 passed earlier. Inspite of this interim order, the petitioners were not allowed to join their services. The fact which is evident from the impugned order, itself indicates that they have been declined salary for the said period on the ground of No Work No Pay there is no material on record to show that petitioners were allowed to join only on 24.7.2007 that is after filing of Criminal Case No. 2312(C) of 2006 by which the concerned officials were called up for contempt of the earlier orders. This reinstatement was mere subject to final order in Writ Petition No. 4929 (SS) of 2006 which was ultimately allowed on 3.9.2007. This reinstatement was mere subject to final order in Writ Petition No. 4929 (SS) of 2006 which was ultimately allowed on 3.9.2007. The operative portion of the said judgment is quoted herein below: “Admittedly, the petitioners were engaged on daily wage basis and for the last ten years, they have been working continuously and as such, they are legally entitled for the benefit of regularisation under the U.P. Regularisation of Daily Wages Appointments on Group ‘D’ Posts Rules 2001.It may be mentioned that this Court by the Judgment and order dated 23.12.2005 passed in writ petition No. 4820 of 1996(SS) provided that before making any direct recruitment on the post of Group ‘D’ post the petitioners shall be considered for regularization for Group ‘D’ post within its sanctioned strength in accordance with Rules and further a writ of mandamus is issued by the State Government/Nagar Palika Parishad, Sultanpur to proceed expeditiously and consider the petitioner’s regularization under the relevant rules against the sanctioned post and if the Rules permit so, before making the appointment directly on vacant class III post, the petitioner of writ petition No. 5134 (SS) of 2000 shall be considered for giving appointment on the said post subject to his eligibility in accordance with law. The aforesaid judgment has attained finality as it has not been challenged by the respondents. Therefore, it is not open for the respondents not to consider the case of the petitioners for regularization and, as such, the action of the respondents is honest and unjustified. For the reasons aforesaid, the writ petition Nos. 4929 (SS) of 2006, 5670 of 2006(SS) and the notice dated 20.1.2003 assailed by the petitioner in writ petition No. 1036 (SS) of 2003 are hereby quashed. The respondents are directed to consdier the case of the petitioners in accordance with the provisions of U.P. Regularisation of Daily Wages Appointments on Group ‘D’ posts Rules 2001. The writ petition No. 636 of 1999 (SS) is disposed of finally. The respondents are directed to consider the case of the petitioner for regularisation in accordance with the provisions of U.P Regularisation of Daily Wages Appointments on Group ‘D’ posts Rules,2001. There is no order as to costs.” 5. Inspite of the judgment passed their claim was not considered and an advertisement was issued on 21.11.2007 for direct recruitment. Representations were submitted by the petitioners for considering their case for regularisation. There is no order as to costs.” 5. Inspite of the judgment passed their claim was not considered and an advertisement was issued on 21.11.2007 for direct recruitment. Representations were submitted by the petitioners for considering their case for regularisation. State Government on 23.11.2008 ordered the District Magistrate, Sultanpur to ensure compliance of the orders of the High Court. Again orders were issued by the State Government on 12.12.2008. In the meantime, various representations were made by the petitioners. However, as the judgments and orders were not complied with, therefore contempt proceedings were initiated bearing Criminal Misc. Case No. 1484 of 2000, wherein notices were issued. It is only thereafter that the services of the petitioners were regularized vide orders dated 16.6.2008, 23.9.2009 and 30.1.2011. As the petitioners were wrongly kept out of service w.e.f 1.5.2006 to 2.5.2007 and no orders were passed with regard to the said period of service they represented. When no action was taken they again approached this Court by means of writ petition No. 7283 (SS) of 2012 which was decided on 7.7.2015 in the following terms: “Heard Shri Ramesh Pandey, learned counsel for the petitioners, learned Standing Counsel, Shri Sanjay Tripathi, learned counsel for the contesting respondent and perused the record. Facts in brief of the present case are that petitioners are engaged as Class-IV employee under Executive Officer, Nagar Palika Parishad, Sultanpur. By means of the order dated 18.5.2006 passed by opposite party No. 4, services of the petitioners have been terminated. Aggrieved by the said facts, the petitioners have approached this Court by filing Writ Petition No. 4929 (SS) of 2006. On 26.5.2006, this Court has passed an order, relevant portion quoted herein below : “The above cases do lay down a law that daily wagers have got no right for regularization. Teh case of Avas Vikas Sansthan and another v. Avas Vikas Sansthan Engineers Assn. and others, (2006) 4 SCC 1 32, pertains to abolition of post, whereas in the case of Secretary, State of Karnataka and others v. Uma Devi and others, (2006) 4 SCC 1 , the Constitution Bench has taken a different view for the persons, who are working more than 10 years. In the present case, the petitioners were appointed in 1989 and 1990 and since they are continuously working. Their regularization process challenged has become final. In the present case, the petitioners were appointed in 1989 and 1990 and since they are continuously working. Their regularization process challenged has become final. The opposite parties should have waited up to the period they were considering regularization, but before finalization of the regularization process, terminating the services of the petitioners is wholly illegal. The petitioners would be allowed to continue as earlier up to the time their regularization is considered by the opposite parties. The State Government will take a decision with regard to sanction of the post within a period of three months from the date a certified copy of this order is produced before it and thereafter the Nagar Palika Parishad will act in accordance with the judgment rendered by this Court dated 23.12.2005.” Thereafter, the said writ petition has been allowed by order dated 3.9.2007 passed by this Court, relevant portion quoted herein below : “Admittedly, the petitioners were engaged on daily wage basis and for the last ten years, they have been working and continuously and as such, they are legally entitled for the benefit of regularization under the U.P. Regularization of Daily Wages Appointments on Group ‘D’ Posts Rules 2001. It may be mentioned that this Court by the judgment and order dated 23.12.2005 passed in Writ Petition No. 4820 of 1996 (SS) provided that before making any direct recruitment on the post of Group ‘D’ post the petitioners shall be considered for regularization for Group ‘D’ post within its sanctioned strength in accordance with Rules and further a writ of mandamus is issued to the State Government/Nagar Palika Parishad, Sultanpur to proceed expeditiously and consider the petitioner’s regularization under the relevant rules against the sanctioned post and if the Rules permit so, before making the appointment directly on vacant class III post, the petitioner of writ petition No. 5134 (SS) of 2000 shall be considered for giving appointment on the said post subject to his eligibility in accordance with law. The aforesaid judgment has attained finality as it has not been challenged by the respondents. Therefore, it is not open for the respondents not to consider the case of the petitioners for regularization and, as such, the action of the respondents is nonest and unjustified. For the reasons aforesaid, the writ petition Nos. The aforesaid judgment has attained finality as it has not been challenged by the respondents. Therefore, it is not open for the respondents not to consider the case of the petitioners for regularization and, as such, the action of the respondents is nonest and unjustified. For the reasons aforesaid, the writ petition Nos. 4929 (SS) of 2006, 5670 (SS) of 2006 and 1036 (SS) of 20032 are allowed and the orders of termination dated 18.5.2006 assailed by the petitioners in writ petition Nos. 4929 (SS) of 2006 and 5670 (SS) of 2006 and the notice dated 20.1.2003 assailed by the petitioner in writ petition No. 1036 (SS) of 2003 are hereby quashed. The respondents are directed to consider the case of the petitioners in accordance with the provisions of U.P. Regularization of Daily Wages Appointments on Group ‘D’ posts Rules 2001. The writ petition No. 636 of 1999 (SS) is disposed of finally. The respondents are directed to consider the the case of the petitioner for regularization in accordance with the provisions of U.P. Regularization of Daily Wages Appointments on Group ‘D’ posts Rules, 2001.” In pursuance to the order dated 3.9.2007 passed by this Court in Writ Petition No. 4929 (SS) of 2006, services of the petitioners have already been regularized. Shri Sanjay Tripathi, learned counsel for the respondent has raised an objection that the relief as claimed by the petitioners cannot be granted as the same has already raised in the earlier writ petition. From the perusal of the record, the position which emerges out is that there is no adjudication in respect of the grievances raised in the present writ petition by the petitioners in the previous litigation on the point in issue and the relief claimed by them in the present writ petition are as under : “to issue a writ, order or direction in the nature of mandamus commanding respondents to release petitioners’ salaries for the period between 1.5.2006 to 2.5.2007. to issue a writ, order or direction in the nature of mandamus commanding respondents to regularize break in service of petitioners’ for the period between 1.5.2006 to 2.5.2007 and further grant all consequential benefits.” After hearing learned counsel for the parties and going through the records, the interest of justice will sub-serve, if the petitioners are directed to move a fresh representation before the opposite party No. 4 for redressal of their grievances. For the foregoing reasons, the writ petition is disposed of with a direction to the petitioners to move a fresh representation to the opposite party No. 4/Executive Officer, Nagar Palika Parishad, Sultanpur within a period of three weeks from today in respect of their grievances which they have raised in the present writ petition annexing all relevant documents and materials in support of their case and after receiving the same O.P. No. 4 shall consider and dispose of by way of speaking and reasoned order in accordance with law within a further period of six weeks and communicate to them.” 6. The objection of the Nagar Palika Parishad that the petition for the relief claimed was not maintainable as the same had been claimed in the earlier writ petition was duly considered and repelled by this Court. This judgment was also not complied with, therefore, again Criminal Misc. Case 90 (C) of 2016 was filed wherein contempt notices were issued. It is only then that the impugned order dated 13.4.2016 was passed stating that salary for the said period was not payable on the principle of No Work No Pay. The Executive Officer has sought shelter of G.O dated 11.5.2009, the matter appears to have been sent to the State Government resulting in the said Government order. It is only then that the impugned order dated 13.4.2016 was passed stating that salary for the said period was not payable on the principle of No Work No Pay. The Executive Officer has sought shelter of G.O dated 11.5.2009, the matter appears to have been sent to the State Government resulting in the said Government order. Though it is not known under which provision of law the State Government could have a say in the matter in respect of the employees of the Nagar Palika Parishad who do not belong to the centralized services, as, Nagar Palika is a statutory body under the Municipalities Act, 1916,even otherwise, the said Government order has been placed before the Court, which reads as under: ^^iathd`r la[;k & 1143@ukS&6&2009&92 fjV@2006 izs"kd] Mh0ds0 flag] la;qDr lfpo] m0iz0 'kkluA lsok esa] ftykf/kdkjh] lqYrkuiqjA uxj fodkl vuqHkkx&6 y[kuÅ fnukad % 11 ebZ] 2009 fo"k;%& fjV ;kfpdk la[;k 4929 ¼,l0@,l0½@06 gjh'k dqekj feJ o vU; cuke m0iz0 jkT; o vU; esa ek0 mPp U;k;ky; ds vkns'k dk vuqikyu djkus o 1-5-2006 ls 2-5-2007 rd dh vof/k ds osru ds lacaèk esaA egksn;] mi;qDr fo"k;d vf/k'kklh vf/kdkjh] uxj ikfydk ifj”kn&lqYrkuiqj ds i= la[;k 6@,e-ch-@09&10 fnukad 9-4-2009 dk d`i;k lUnHkZ xg.k djkus dk d"V djsaA 2- bl laca/k esa eq>s ;g dgus dk funs'k gqvk gS fd miyC/k djk;h x;h vk[;k ds vuqlkj lacaf/kr deZpkjhx.k fnukad 1-5-2006 ls 2-5-2007 rd lsok ls ckgj jgsa gSaA iz'uxr izdj.k esa ek0 mPp U;k;ky; ds vkns'k esa fnukad 1-5-2006 ls 2-5-2007 rd dh vof/k ds osru ds laca/k esa ek0 mPp U;k;ky; }kjk dksbZ vkns'k ugha fn, x, gSa] vr% mDr vof/k dk osru fn;k tkuk lehphu ugha gSA Hkonh;] ¼Mh0ds0 flag½ la;qDr lfpoA 7. As is apparent from a reading of the aforesaid,no reason has been mentioned nor there appears to be any application of mind to the facts of the case. It is contended by Sri Sanjay Tripathi, learned counsel for the respondent that the petitioners have not challenged the said Government order in this writ petition.The order is so apparently unsustainable in the eyes of law that it is liable to be ignored, specially as the employer that is Nagar Palika Parishad has passed an order which is under challenge hereinabove. The State Counsel was not able to show under which law the Government could have passed such an order. The State Counsel was not able to show under which law the Government could have passed such an order. At best it appears that the Nagar Palika Parishad sought guidance in 2009 which was provided. Therefore, even if there is no challenge to it, it does not make any difference as the right of the petitioner has been denied by the concerned employer, that is the Nagar Palika Parishad by the impugned order dated 13.4.2016 which is under challenge. Therefore this is sufficient. As it is the petitioners have been made to run to the Court for every small thing not once but at least 3-4 times and never have the orders of this Court been complied by the Nagar Palika Parishad unless contempt proceedings were initiated. Therefore the less said in this regard the better for the Nagar Palika. 8. Now coming to the merits of the case once there was an interim order allowing the petitioners to be continued in service the same had to be honoured. If the Nagar Palika did not honour the same and allowed them to join only after initiation of contempt proceedings that is on 27.4.2007, the petitioners cannot be made to suffer for the fault of the Nagar Palika. Moreover, the writ petition in which the interim order had been passed was subsequently allowed on 3.9.2000, therefore it is inconceivable as to how in these circumstances the principle of No Work No Pay would apply. It is very well-settled that the said principle will have no application where the employee was willing to work but was obstructed from working for any act of the employer. This is precisely the case herein. Reference can be made to the judgment of the Supreme Court in Commissioner, Karnataka Housing Board v. C. Muddaiah, 2007 (7) SCC 689 paragraph 32,33,34 of which reads as under: 32-”We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and and implemented without any reservation. If an order passed by a Court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. If an order passed by a Court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected.” 33-”The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view 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. Inspite of the fact that he is entitled to certain benefits they have 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 wrongly, unfairly and with oblique motive deprived of those benefit. The Court, in these circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the authorities in such case to urge that as he has not worked(but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged.” 34. We are conscious and mindful that even in absence of statutory provision, normal rule is “no work no pay”. In appropriate cases, however, a Court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. We are conscious and mindful that even in absence of statutory provision, normal rule is “no work no pay”. In appropriate cases, however, a Court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the authority to grant him all benefits considering “ as if he had worked”. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of law and if such directions are issued by a Court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected.” 9. Moreover the impugned order is absolutely silent about the regularity of service of the petitioners for the period in question and according to the petitioner it is being treated as break in service. This is absolutely unjustified and unreasonable. The said period cannot, by any stretch of imagination, be treated as break in service as once the services have been regularised subsequently then the earlier services on the basis of which this was done, have to be treated in service albeit on the same terms on which they were functioning earlier. However, whether on the basis of such service any service benefits are admissible to the petitioners is an entirely different matter as the petitioners at that time were to get minimum wages, therefore the Court does not dwell upon the said issue. For the reasons aforesaid, the impugned order is hereby quashed. The writ petition is allowed in the aforesaid terms. Consequences to follow as per law. The remuneration payable to the petitioner for the period in question under the orders of the Court referred hereinabove shall be paid to them within three weeks. For the reasons aforesaid, the impugned order is hereby quashed. The writ petition is allowed in the aforesaid terms. Consequences to follow as per law. The remuneration payable to the petitioner for the period in question under the orders of the Court referred hereinabove shall be paid to them within three weeks. The petitioners have been made to suffer a lot, however as this Court has not called for any counter-affidavit on this issue,therefore, it restrains from imposing any cost or compensating them in the matter, otherwise it was a fit case for doing so.