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2017 DIGILAW 18 (MEG)

Bainsten G. Momin v. State of Meghalaya

2017-04-12

VED PRAKASH VAISH

body2017
JUDGMENT : V.P. Vaish, J. By way of the present petition the petitioner seeks direction against the respondents to clear/release the arrear salaries and other allowances entitled to the petitioner along with interest @ 10% per annum w.e.f. 07.12.1010 to 31.07.2012. 2. Briefly recapitulating the facts leading to the filing of the present petition are that the petitioner was appointed as Driver with the respondent No. 2 pursuant to Memo No. BMB/ESSTT.1/95/53 dated 22nd November, 2000. While in service, the petitioner was implicated in various criminal cases under the Baghmara Police Station under various sections of the Indian Penal Code and also under the Meghalaya Prevention Detention Act, 1995. 3. The petitioner was arrested in connection with certain cases viz: Baghmara P.S. Cases No. (i) 49 (12) 2007, No. (ii) 50 (12) 2007 and No. (iii) 51 (12) 2007 and also under the Meghalaya Prevention Detention Act, 1995. While in police custody the petitioner was booked under the Meghalaya Prevention Detention Act, 1995 vide order dated 9th January, 2008. 4. The petitioner challenged the said order dated 9th January, 2008 by filing WP(Crl.) No. 55/2008 before the Gauhati High Court, Shillong Bench. The said petition was disposed of by Hon'ble Division Bench vide order dated 08th May, 2008 and the order dated 9th January, 2008 was set aside. 5. While the petitioner was under detention, the respondent No. 2 terminated the service of the petitioner vide order dated 11th January, 2008. Being aggrieved by the termination order dated 11th January, 2008, the petitioner filed WP(C) No. 206 (SH) 2008. The termination order was set aside by Gauhati High Court vide order dated 07th December, 2010 by holding that such termination from service is in violation of the principles of natural justice and also the procedure laid down under the Assam Service (Discipline and Appeal) Rules, 1964 and as such not sustainable under the law. 6. It is stated by the petitioner that he came to know about the disposal of the case in the month of April, 2012 when he came to Shillong to meet his counsel. Certified copy of the order along with forwarding letter was submitted in April, 2012 praying for re-instatement to the post of Driver and for release of the arrear/salary payable to the petitioner. 7. Certified copy of the order along with forwarding letter was submitted in April, 2012 praying for re-instatement to the post of Driver and for release of the arrear/salary payable to the petitioner. 7. On receipt of the order dated 07th December, 2010, the petitioner was re-instated by the respondent No. 2 in the same scale of pay and allowances vide order dated 01st August, 2012. 8. It is contended on behalf of the petitioner that though the order dated 07th December, 2010 was passed in the presence of Government counsel, but the respondent No. 2 was not informed by the concerned counsel and as a result the petitioner was re-instated almost after two years from the date of the order dated 07th December, 2010. 9. It is also stated on behalf of the petitioner that the petitioner was falsely implicated in the criminal cases followed by detention order and he had to suffer financially for the delay in re-instatement. 10. The petition is opposed by the respondents by filing Affidavit-in-opposition. It is stated by the respondents that the petitioner is not entitled to the arrears and the salary for the period for which he did not work. It is further stated by the respondents that since the petitioner has not worked, he is not entitled to any arrears of pay and salaries. The respondents contend that the rule of 'no work no pay' is applicable to the petitioner in the present case. 11. I have given my anxious thought to the submissions made by learned counsel for both the parties and carefully gone through the material on record. 12. At the outset, Ms. S. Bhattacharjee, learned counsel for the petitioner submits that she does not press for claim of interest on the arrears of salary and other allowances. 13. The petitioner was placed under detention vide order dated 09th January, 2008 and challenge to the said order was successful as the same was set aside vide order dated 08th May, 2008 in WP(Crl.) No. 55/2008. However, when the petitioner was in detention, the respondent No. 2 terminated the services of the petitioner. Since the termination was done without issuance of show cause notice and without affording an opportunity of hearing to the petitioner, the same was also set aside by the Court vide order dated 07th December, 2010 in WP(C) No. 206 (SH) 2008. 14. However, when the petitioner was in detention, the respondent No. 2 terminated the services of the petitioner. Since the termination was done without issuance of show cause notice and without affording an opportunity of hearing to the petitioner, the same was also set aside by the Court vide order dated 07th December, 2010 in WP(C) No. 206 (SH) 2008. 14. The order dated 07th December, 2010 was passed in the presence of counsel for the parties, but the petitioner was reinstated almost after two years from the date of the said order. Thus, the petitioner claims salary from 07th December, 2010 to 31st July, 2012 i.e. from the date of order setting aside the termination order and till he was re-instated actually. 15. The question as to whether there can be any exception to the principle of 'no work no pay' was considered by the Hon'ble Supreme Court in the case of 'Union of India and Others v. K.V. Jankiraman, And Others' reported as (1991) 4 SCC 109 wherein it was urged by the Union of India that normal rule is 'no work no pay' and therefore a person cannot be allowed to draw the benefits of a post, the duties of which he has not discharged. While rejecting the contention, the Hon'ble Supreme Court held as under: "24. It was further contended on their behalf that the normal rule is "no work no pay". Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed under suspension. When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly." 16. When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly." 16. Having considered the facts and circumstances of the present case, I am of the view that the rule of 'no work no pay' is not applicable in the present case. The Hon'ble Supreme Court in the case of 'Union of India and Others v. K.V. Jankiraman, and Others' (supra) further 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 cases 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." 17. Similarly, in the case of 'Vasant Rao Roman v. Union of India, and Others' reported as 1993 SUPP (2) SCC 324, also an exception was made to the principle of 'no work no pay'. It was observed by the Hon'ble Supreme Court that admittedly neither the appellant had been put under suspension nor any disciplinary proceedings were pending against him. On the contrary, he had been made to suffer on account of administrative reasons for which he was not responsible. Therefore, in view of the aforesaid facts it was held that not allowing the arrears of emoluments to the appellant cannot be justified. In the case in hand, the respondents have failed to show that the petitioner was not willing to work or that the petitioner remained away from work for his own reason. 18. The petitioner served the respondents for more than eight years till he was terminated on 11th January, 2008 without following the due process of law. The Hon'ble Supreme Court in the case of 'D.K Yadav v. J.M.A Industries Ltd', reported as (1993) 3 SCC 259 has held that before terminating the services of an employee, the principles of natural justice are required to be complied with. 19. The Hon'ble Supreme Court in the case of 'D.K Yadav v. J.M.A Industries Ltd', reported as (1993) 3 SCC 259 has held that before terminating the services of an employee, the principles of natural justice are required to be complied with. 19. It is a well settled law that right to life enshrined under article 21 of the Constitution of India would include right to livelihood. The order of termination of the service of an employee visits with civil consequences of jeopardizing not only his livelihood but also career and livelihood of dependants. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice. 20. The Hon'ble Supreme Court in the case of 'Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, and Others' reported as (2013) 10 SCC 324 after considering three judge Bench decision, has held that if the order of termination is void ab initio, the workman is entitled to full back wages. The relevant para of the said judgment is extracted here under: "22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments". 21. Having considered the facts and circumstances of the present case, I am of the considered view that the action of the respondents in not releasing the arrears of salary and other allowances of the petitioner w.e.f. 07.12.2010 to 31.07.2012 is not justified. 22. In the light of the aforesaid discussions, the writ petition is allowed and the respondents are directed to release the arrears of salary and other allowances of the petitioner w.e.f. 07th December, 2010 to 31st July, 2012 within a period of six weeks from today. 23. No order as to costs.