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2017 DIGILAW 1778 (JHR)

Lily Dorothy Topno v. State of Jharkhand

2017-10-11

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the instant writ application, the petitioner has inter alia prayed for direction upon the respondents to pay arrears of salary w.e.f. March, 2005 till date. 2. The factual exposition, as delineated in the writ application, in a nutshell is that the petitioner was appointed as an Assistant teacher in the year 1981, by the Selection Committee and School Management, in Saheed Herman Rascart High School, Kutungia in the district of Gumla (now Simdega), which is a recognized aided religious Minority High School, being funded and financed by State Government. While continuing as such, her salary was stopped from February, 1998, against which the petitioner approached this Court by filing W.P. (S) No. 3356 of 2002 which was allowed vide order dated 26.02.2003 directing the respondents to make payment of entire period, however, liberty was reserved with the respondents to take any action in accordance with law. But when order dated 26.02.2003 passed in W.P. (S) No. 3356 of 2002 was not carried out, the petitioner filed one contempt petition, being Cont. Case (Civil) No. 398 of 2003 and only after filing of Contempt Petition, arrears of salary amounting to Rs. 8,78,125.00 was paid. 3. After making such payment, the respondents-authorities proceeded against the petitioner, which resulted in termination vide letter dated 09.11.2005 w.e.f 31.10.2005. Being aggrieved, the petitioner again knocked the door of this Court by filing W.P.(S) No. 114 of 2006, which was withdrawn in order to move the Tribunal as at the relevant time 'Jharkhand Education Tribunal' was constituted for redressal of grievances of teaching and non-teaching staffs of Minority Aided Schools. Thereafter, the petitioner moved the Tribunal by filing Case No. 35 of 2006 (JET), which was disposed of vide order dated 14.07.2006 quashing the order of termination and direction was made to make payment of arrears of salary. Against that order, the Opp. Party-Secretary of the said school preferred appeal before this Court by filing A.C (S.B) No. 11 of 2006, which was dismissed vide order dated 31.10.2006 without interfering with the order passed by the Tribunal. Against that order, the Opp. Party-Secretary of the said school preferred appeal before this Court by filing A.C (S.B) No. 11 of 2006, which was dismissed vide order dated 31.10.2006 without interfering with the order passed by the Tribunal. But in the meantime, when the order passed by the Tribunal, with respect to payment of back wages, was not given effect to, the petitioner filed contempt case bearing M.J.C No. 8 of 2006, in which, on being noticed, the opposite party-Secretary of the school appeared and pleaded that school in question is a government aided recognized aided Minority school and payment of salary of teaching and non-teaching staff is being made by State Government, however, in the light of order passed by the Tribunal, the bill for payment of arrears of salary due from March, 2005 has already been submitted by the School Management before District Education Officer. In such view of the matter, the contempt proceeding was dropped with liberty that if the arrears of payment is not made by Education Department, the petitioner will be at liberty to file writ application before this Court. Hence, when no payment was made, the petitioner preferred the present writ application for payment of arrears of salary. 4. During pendency of the writ application, this Court vide order dated 23rd July, 2009 taking cognizance of the order passed in Case No. 35 of 2006 dated 14th July, 2006 by Tribunal and the order passed by this Court in A.C (S.B) No. 11 of 2006 dated 31st October, 2006 and also in view of the fact that Management has already submitted the bill to respondent No. 3-District Education Officer, Simdega directed the Secretary, Human Resources Department to file affidavit as to whether State of Jharkhand is ready and willing to make payment of salary or not. Pursuant thereto an affidavit was filed by Secretary, Human Resources Department stating therein that total amount payable to the petitioner is Rs. 5,25,042/- out of which Rs. 4,04,640/- has already been paid and cheque against rest payment amounting to Rs. 1,20,402/- has been handed over to the Secretary of the said school to pay the same to the petitioner. 5. From the pleadings available on record, it appears that previously the Secretary of the said school presented a bill of Rs. 5,25,042/- out of which Rs. 4,04,640/- has already been paid and cheque against rest payment amounting to Rs. 1,20,402/- has been handed over to the Secretary of the said school to pay the same to the petitioner. 5. From the pleadings available on record, it appears that previously the Secretary of the said school presented a bill of Rs. 7,35,726/- before the District Education Officer, Simdega on 20.07.2009, which was returned after verification and thereafter, the In-Charge Headmaster sent a bill of Rs. 5,25,042/-, which is now stated to be paid. 6. At this juncture, learned counsel for the petitioner by referring to affidavit filed by the petitioner submitted that on query made by the petitioner he came to know that the respondents have denied the payment for the interregnum period i.e. from the date of termination till reinstatement (September, 2005 to October, 2006) on the ground of 'no work no pay. 7. Now the only short question which falls for consideration before this Court is:- "Whether in the facts and circumstances of the petitioner is entitled for grant of salary for the period from September, 2005 to October, 2006." 8. From chronological study of the matter and the pleadings available on record, it appears that with the liberty reserved with the respondents in W.P. (S) 3356 of 2002, the respondents proceeded departmentally against the petitioner and terminated her services vide letter dated 09.11.2005 w.e.f. 31.10.2005. Against which, the petitioner moved the Tribunal by filing Case No. 35 of 2006 (JET), which was disposed of vide order dated 14.07.2006 quashing the order of termination and direction was made to make payment of arrears of salary, against which, the opposite party preferred appeal being A.C (S.B) No. 11 of 2006, which was dismissed vide order dated 31.10.2006 without interfering with the order passed by the Tribunal. Hence, the order passed by the Tribunal attained finality. Furthermore, for non-compliance of order passed by Tribunal, the petitioner had also filed contempt proceeding which was dropped on the pleading of Secretary of the said school that he had submitted the bill for payment of arrears of salary before District Education Officer and since the school in question is a government aided recognized aided Minority school payment of salary is to be made by State Government. 9. 9. It is well settled principle that quashing of order of termination will not ipso facto entitle the petitioner for grant of salary for the interregnum period i.e. from the date of termination till reinstatement but here is the case where order passed by the Tribunal for payment of back wages attained finality and further the petitioner by filing supplementary affidavit has averred that she was not in gainful employment during that period, which has not been controverted by the respondents; the aforesaid principle shall not apply. 10. Under such circumstances, the State is liable to pay the back wages for the aforesaid period. View of this Court gets fortified by case laws cited by learned counsel for the petitioner in the case of Educational Society, Tumsar & Ors v. State of Maharashtra & Ors as 2016 (1) JBCJ 449 [SC], wherein the Hon'ble Apex Court has in unequivocal terms has enunciated that "....as per normal principle, whenever a terminated employee of an aided school challenges termination and termination is held to be illegal by a competent judicial forum/Court and order is passed for payment back wages etc., Government is supposed to bear burden." 11. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, the respondent No. 4 is directed to recalculate the arrears of salary and prepare a bill by adding the interregnum period i.e. from the date of termination till reinstatement (September, 2005 to October, 2006) and submit the same before respondent No. 3 for its payment within a period of six weeks from the date of receipt/production of copy of this order, who upon receipt thereof shall make payment within a period of six weeks thereafter. It is made clear that if payment is not made within the time prescribed period, it shall carry interest @ 9 % per annum from the date of passing of this order till its actual payment. 12. With the aforesaid observations and directions, the writ petition stands disposed of.