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2018 DIGILAW 892 (GAU)

NIRMALI BHATTACHARJEE v. STATE OF ASSAM

2018-06-01

ACHINTYA MALLA BUJOR BARUA, AJIT SINGH

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JUDGMENT & ORDER : AM BUJOR BARUA, J. 1. Heard Ms. P. Bathari, learned counsel for the appellant. Also heard Mr. R. Dhar, learned Additional Senior Government Advocate, Assam for the respondents. 2. The appellant was appointed as a LDA on 29.11.1979 as per the order of the Superintendending Engineer, Dehang Investigation Division No.1, Pasighat, Arunachal Pradesh. In the resultant service book her date of birth was recorded as 01.01.1955. The said date of birth as recorded remained as it is even after subsequent periodic verifications done by the authorities from time to time. 3. By an order dated 17.04.1982 of the Secretary to the Government of Assam in the Flood Control Department the service of the appellant was placed under disposal of the Brahmaputra Board and on being so placed, the pay of the appellant was fixed under F.R. 22 (a) (ii) in the scale of pay applicable to the Board. 4. Thereafter she was posted in the Office of the Executive Engineer, Barak Valley Investigation Division by an order dated 02.01.1985, in the Office of the Executive Engineer Nalbari Investigation Division by an order dated 11.04.1988 and thereafter repatriated to her parent Department as per the order dated 10.02.1989 of the Deputy Secretary, Brahmaputra Board. 5. Upon being repatriated the appellant was posted in the Assam Secretariat (Civil) as per the order dated 19.04.1990 of the Deputy Secretary to the Government of Assam in the Flood Control Department. 6. To the knowledge of the appellant the date of birth recorded in her service book continued to remain as 01.01.1955 and there were periodic attestations of the same upto the year 2012. 7. By taking into consideration of the date of birth to be 01.01.1955 the appellant ought to have superannuated from service on 31.12.2014. 8. The appellant was served a letter dated 04.09.2012 of the under Secretary to the Government of Assam in the Secretariat Administration (Gazzeted Cell) Department, informing that she would superannuate from service on 31.12.2013. 9. The appellant submitted a reply dated 12.09.2012 and informed the Under Secretary that her date of birth being 01.01.1955, she would superannuate on 31.12.2014. But inspite of such objection being raised the authorities by a letter dated 26.04.2012 informed the appellant that her date of birth would be considered as 02.12.1953 and accordingly she would superannuate on 31.12.2013. 10. 9. The appellant submitted a reply dated 12.09.2012 and informed the Under Secretary that her date of birth being 01.01.1955, she would superannuate on 31.12.2014. But inspite of such objection being raised the authorities by a letter dated 26.04.2012 informed the appellant that her date of birth would be considered as 02.12.1953 and accordingly she would superannuate on 31.12.2013. 10. Being aggrieved the petitioner preferred WP (C) No. 5059/2013 which was given a final consideration by the Judgment and Order dated 12.02.2015. 11. In the Judgment and Order dated 12.02.2015, the learned Single Judge was pleased to set aside the letter dated 26.04.2013 by which the appellant was informed that her date of birth is 02.12.1953 and accordingly she would superannuate on 31.12.2013. By the said Judgment the learned Single Judge also provided that the date of birth recorded in service book of the appellant as 01.01.1955 would stand unaltered and his date of superannuation should be taken as 31.12.2014. But, however the learned Single Judge in the said Judgment and Order had also provided that since the appellant did not render any service from 01.01.2014 upto 31.12.2014, although not due to her fault, but by applying the principle of no work no pay the Court is not inclined to direct payment of arrear salary for the said period. 12. Being aggrieved by the said provision in the Judgment and Order dated 12.02.2014 that the appellant would not be entitled to the arrear salary from 01.01.2014 to 31.12.2014, by applying the principle no work for no pay, the present appeal has been preferred. 13. Ms. P. Bathari, learned counsel for the appellant relies upon a Judgment and Order of the Supreme Court rendered in State of U.P. -vs- Dayanand Chakrawarty reported in (2013) 7 Supreme Court Cases 595, wherein in paragraph 21 it is provided that if an employee is prevented by the employer from performing his or her duties, the principle of no work no pay shall not be applicable. 14. Paragraph-21 of Dayanand Chakrawarty (Supra) is as follows: "If an employee is prevented by the employer from performing his duties, the employee cannot be blamed for having not worked, and the principle of "no work no pay" shall not be applicable to such employee." 15. 14. Paragraph-21 of Dayanand Chakrawarty (Supra) is as follows: "If an employee is prevented by the employer from performing his duties, the employee cannot be blamed for having not worked, and the principle of "no work no pay" shall not be applicable to such employee." 15. From the said proposition of law it is apparent that if an employee is prevented from discharging his or her duties by the employer and such non-performance of the duties is not due to any fault on the part of the employee, the principle of no pay for no work shall not be made applicable to deny the salary and allowances for such period. 16. In the instant case it is taken note of that the date of birth of the appellant was recorded in the service book as 01.01.1955 and accordingly she would have superannuated on 31.12.2014, but without addressing the objection raised by the appellant, the respondents by their letter dated 26.04.2013, without passing any reasoned order, and without any basis, had insisted that her date of birth is 02.12.1953 and she would superannuate on 31.12.2013. 17. As the appellant was prevented from rendering her service from 01.01.2014 pursuant to such arbitrary decision of the respondent authorities, it can be said that the non-rendering of service from 01.01.2014 to 31.12.2014 was not due to any fault of her. The learned Single Judge in the Judgment and Order dated 12.02.2015 also arrived at the same conclusion that although the appellant had not rendered service from 01.01.2014 to 31.12.2014, but it was not due to any fault of hers. 18. In view of the aforesaid factual situation, as well as the conclusion of the learned Single Judge that the appellant could not render service from 01.01.2014 upto 31.12.2014, not because of any fault of her, the provision of the Supreme Court in paragraph 21 of Dayanand Chakrawarty (Supra) would be applicable in respect of her entitlement to the salary and allowances for the said period and the same cannot be denied on the basis of the principle of no work no pay. 19. 19. Accordingly, the writ appeal stands allowed and the part of the order of the learned Single Judge in the Judgment and Order dated 12.02.2015 in WP (C) No. 5059/2013 providing that the appellant would not be entitled for arrear salary from 01.01.2014 to 31.12.2014 by applying the principle of no work no pay is accordingly interfered but at the same time retaining other provisions of the order. 20. Accordingly, the respondent authorities are directed to pay the arrear salary to the appellant for the period of 01.01.2014 to 31.12.2014. In view of the above, this writ appeal stands disposed of.