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2020 DIGILAW 330 (ALL)

State of U. P. v. Akbar Naim

2020-01-29

CHANDRA DHARI SINGH, GOVIND MATHUR

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JUDGMENT : Chandra Dhari Singh, J. 1. The instant intra-Court appeal has been filed by appellants under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 against the judgment and order dated 10.3.2010 passed by the learned Single Judge in Writ Petition No. 1842 (SS) of 1994 by which the writ petition has been allowed with a direction to the respondents to call for the records and go through the orders passed by the State Government and this Court and release the payment of held up salary to the petitioner (respondent No. 1 herein) within six weeks for the period 1.10.1992 to 3.2.1995. While allowing the writ petition, a cost of Rs. 5000/- was also imposed on the respondents. 2. Brief facts of this case are that respondent No. 1, who was working as a teacher in a Madarsa Darul Uloom Pir Batawan, District-Barabanki, has approached this Court seeking payment of his held up salary w.e.f. 1.10.1992 to 3.2.1995. The said Madarsa is duly recognized and aided by Government of U.P. Initially the District Basic Educational Officer, Barabanki was exercising administrative control over this institution, later on, the District Minorities Welfare Officer became the supervisory authority in the District. The respondent No. 1 has discharged his duties and functions during the above said period with utmost dedication but the salary was not paid as the same could not be processed. The respondent. No. 1 approached the superior authorities including the State Government and several letters and orders were issued by the District Minorities Welfare Officer, Barabanki and the State Government directed the Principal, Madarsa Darul Uloom Pir Batawan, Barabanki to settle accounts and released the payment of salary to the respondent No. 1 for the above said period but nothing has been done towards the payment of salary during the period as stated above. Thereafter, the respondent No. 1 has filed Writ Petition No. 1842 (SS) of 1994, which has been allowed vide impugned order dated 10.3.2010. 3. Thereafter, the respondent No. 1 has filed Writ Petition No. 1842 (SS) of 1994, which has been allowed vide impugned order dated 10.3.2010. 3. It has been submitted by learned Counsel for appellants-State that while passing the impugned order, the learned Single Judge has erred in law by not taking into consideration the fact that the writ petition was filed in the year 1994 in which on 19.2.1999, the appellant-District Minority Welfare Officer, Barabanki have been impleaded as respondents after control being taken by the appellants over the institution and also on 19.3.1999, the notices have been issued but the writ petition was dismissed for want of prosecution on 12.8.1999. Thereafter, it was restored on 20.8.1999 and the writ petition has been finally allowed only on the basis of the supplementary-affidavit filed by the respondent No. 1 placing on record several orders issued by the State Government directing the Principal to settle the account and release the payment of salary to the respondent No. 1. 4. Learned Counsel for the appellants-State has submitted that the learned Single Judge while allowing the writ petition has also not considered the fact that two inquiries were conducted against the respondent No. 1/writ petitioner in which it was found that the respondent No. 1 did not performed the duty as teacher from 1.10.1992 to 3.2.1995. In the inquiry, it was also found that the respondent No. 1 did not work with Mr. Zaheer Anwar, Assistant Teacher during the said period and the said fact had also concealed by the respondent No. 1. 5. In the inquiry, it was also found that the respondent No. 1 did not work with Mr. Zaheer Anwar, Assistant Teacher during the said period and the said fact had also concealed by the respondent No. 1. 5. It has again been submitted by learned Counsel for the appellants-State that while allowing the writ petition, the learned Single Judge has also not considered the fact that the Director Minority Welfare Department, Uttar Pradesh issued an order on 30.11.2005 to conduct an inquiry for verifying the presence of the respondent No. 1 for the period in question and in the inquiry, it was found that the salary of the respondent No. 1 was not paid due to his absence from duty though repeated notices were sent by the Principal and to that effect the inquiry report dated 8.12.2005 was submitted to the higher authorities and the respondent No. 1 had resumed the duty on 4.2.1995 after submitting the undertaking that he would complete the requisite educational qualification for the post held by him within two years and to that effect an order dated 9.2.1995 has also been passed by the Basic Shiksha Adhikari, Barabanki. 6. Learned Counsel for the appellants-State has next contended that the respondent No. 1 holding the post of Assistant Teacher Aaliya for which the basic qualification is Fazil or Kamil with three years teaching experience and respondent No. 1 do not possess the requisite qualification and to that effect respondent No. 1 submitted an affidavit before the Basic Shiksha Adhikari, Barabanki to permit him to resume his duties with the undertaking that he will complete his education qualification for the said post but till date, the respondent No. 1 had not completed the education qualification as provided in the Government Order. The respondent No. 1 admittedly resumed his duties since 4.2.1995, which itself shows that he did not performed his duties from 1.10.1992 to 3.2.1995. The respondent No. 1 after resuming his duty from 4.2.1995 had manipulated his service book from 1990 to 1999 and fixed his annual increments for the period, he has worked and succeeded in getting payment of Rs. 43,486/- in collusion with the then District Minority Welfare Officer. 7. Per contra, learned Counsel appearing for the respondent No. 1 has submitted that the respondent No. 1 had not manipulated his service book from 1990-1999 after resuming his duties from 4.2.1995. 43,486/- in collusion with the then District Minority Welfare Officer. 7. Per contra, learned Counsel appearing for the respondent No. 1 has submitted that the respondent No. 1 had not manipulated his service book from 1990-1999 after resuming his duties from 4.2.1995. He has also submitted that the annual increments were not given to the respondent No. 1 w.e.f. 1990. The respondent No. 1 had represented the matter to the higher authorities as well as the State Government. The State Government had scrutinized the matter and called for report from the authority concerned and thereafter came to the conclusion that since there is nothing adverse against the respondent No. 1 and neither any disciplinary inquiry nor any department proceedings have ever been initiated against the respondent No. 1 either for an alleged absence for the period in question or for the lack of qualification and, therefore, the State Government vide order dated 25.11.1999 directed the District Minority Welfare Officer, Barabanki that if there is no departmental/disciplinary proceedings against the respondent No. 1, he should be awarded annual increments and also make payment of arrears of salary. 8. Learned Counsel appearing for the respondent No. 1 has further submitted that in compliance of the order dated 25.11.1999, the then District Minority Welfare Officer, Barabanki inquired the matter and found that the question of qualification with respect to appointment of the respondent No. 1 is not applicable against him and no reasonable ground is find out for not giving him annual increments in his salary and, therefore, his annual increments have been restored vide order dated 21.10.1999 and the proceedings are in process for preparation of arrears of salary bill with effect from October, 1992 up till 3.2.1995. 9. It has again been submitted by learned Counsel appearing for the contesting respondent that the salary of one Mr. Zaheer Anwar, Assistant Teacher and Mr. Siraj Ahsan, Assistant Teacher working with the petitioner were also stopped by the appellants but later on, the salary and arrears were paid to them in the year 1999 and 1993 respectively whereas the salary and arrears of the respondent No. 1 from 1.10.1992 to 3.2.1995 have illegally been denied without assigning any reason. Zaheer Anwar, Assistant Teacher and Mr. Siraj Ahsan, Assistant Teacher working with the petitioner were also stopped by the appellants but later on, the salary and arrears were paid to them in the year 1999 and 1993 respectively whereas the salary and arrears of the respondent No. 1 from 1.10.1992 to 3.2.1995 have illegally been denied without assigning any reason. Therefore, the learned Single Judge after considering the entire material on record has found that the respondent No. 1 is legally entitled for the salary and arrears for the said period as he had performed duty during the said period. 10. We have considered the submissions advanced by learned Counsel for the parties and perused the record. 11. Counter and rejoinder-affidavits have been exchanged between the parties and the same are available on record. 12. After perusal of the record, we found that in the year 1992, the respondent No. 1 had approached this Court by filing Writ Petition No. 901 (SS) of 1992 on behalf of all the teachers and employees for non-payment of their salary which was withheld by the then Shiksha Adhikari from July, 1991 onward, which was allowed vide order dated 13.2.1992 with a direction to the District Baste Education Officer, Barabanki to make the payment of the salary of the teachers and the other employees who are working in the institution taking into account the records of the institution as well as the employees and last salary bill of staff of the institution. It was further directed that the arrears of teachers and other employees should also be paid and in future salary of the teachers and other employees should also be paid regularly. In pursuance to the order dated 13.2.1992, the salary of the respondent No. 1 was paid till September, 1992. Again the salary of the respondent No. 1 was stopped from the month of October, 1992 and against non-payment of salary, the respondent No. 1 represented his case before higher authorities and also before the District Basic Education Officer including the District Magistrate, Barabanki. 13. Again the salary of the respondent No. 1 was stopped from the month of October, 1992 and against non-payment of salary, the respondent No. 1 represented his case before higher authorities and also before the District Basic Education Officer including the District Magistrate, Barabanki. 13. It has also been argued by learned Counsel appearing for respondent No. 1 that inspite of all efforts, when the salary of respondent No. 1 was not paid by the District Basic Education Officer and by the other authorities concerned of the department, the respondent No. 1 agitated the matter again and ultimately vide an order dated 3.9.1993 and 27.9.1993, the District Basic Education Officer had passed an order stating therein that if the respondent No. 1 submits an affidavit to the effect that he is working in the institution from October, 1992 till date and in future he will also continue to work and put his signature on the attendance register. Inspite of the affidavit submitted by the respondent No. 1, the salary of the petitioner has not been paid. 14. In the instant case, the respondent No. 1 has argued that he is working regularly in the institution and, therefore, he is entitled for salary as was received by him in the past. It has been well recognised and settled that right to education is a fundamental right under Part III of the Constitution of India. It is a pious obligation of the State and the Society to provide education at all levels to all citizens and the State may discharge this obligation either through State owned or State recognised educational institutions and may get the aforesaid activity supplemented by the private institutions as well. 15. The respondent No. 1 is continuously working in the institution and the said institution is also taking the service of the respondent No. 1 but the salary has been denied which is contrary to the constitutional obligation. It is evident from the record that the petitioner has continuously work in the institution as a Teacher for the period in question, therefore, the respondent No. 1 legitimately expects to be adequately compensated for the work he has done. 16. Article 23 of the Constitution of India prohibits 'Begar' which reads as under: "23. Prohibition of traffic in human beings and forced labour. 16. Article 23 of the Constitution of India prohibits 'Begar' which reads as under: "23. Prohibition of traffic in human beings and forced labour. (1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them." 17. The aforesaid Article envisages to solve three unsocial practices prevailing in the India society namely; (i). Traffic in human beings; (ii) Begar; and (iii) similar forms of forced labour 18. In the present context, we are concerned with one of the evils of 'Begar' The word 'Begar' is of Indian origin and has been adopted in the English vocabulary. It is understood to be a labour or service which a person is forced to give without receiving any remuneration for it. In other words extracting labour or service from a person by the Government or by person in power without giving remuneration for it amounts to 'Begar.' 'Begar' can take different forms such as forced labour, taking work without remuneration or taking work without paying adequate remuneration or remuneration less than the minimum wages. 19. It is very difficult to formulate a precise definition of the word 'begar', but there can be no doubt that it is a form of forced labour under which a person is compelled to work without receiving any remuneration. Molesworth describes 'begar' as "labour or service exacted by a Government or person in power without giving remuneration for it." Wilson's Glossary of Judicial and Revenue Terms gives the following meaning of the word 'begar': "a forced labourer, one pressed to carry burdens for individuals or the public. Under the old system, when pressed for public service, no pay was given. The Began, though still liable to be pressed for public objects, now receives pay: Forced labour for private service is prohibited." Begar may therefore be loosely described as labour or service which a person is forced to give without receiving any remuneration for it. Under the old system, when pressed for public service, no pay was given. The Began, though still liable to be pressed for public objects, now receives pay: Forced labour for private service is prohibited." Begar may therefore be loosely described as labour or service which a person is forced to give without receiving any remuneration for it. That was the meaning of the word 'begar' accepted by a Division Bench of the Bombay High Court in S. Vasudevan v. S.D. Mital, AIR 1962 Bom 53 . 'Begar' is thus clearly a form of forced labour. Now it is not merely 'begar' which is unconstitutionally (sic) prohibited by Article 23 but also all other similar forms of forced labour. This Article strikes at forced labour in whatever form it may manifest itself, because it is violative of human dignity and is contrary to basic human values. 20. In view of the above Constitutional mandate no Government or public body or a person can take work from anyone without paying remuneration or less remuneration then admissible or by force as it would be a clear violation not only of the fundamental right of a person but of a much superior human right which inheres in every individual. 21. In People's Union for Democratic Rights v. Union of India, (1982) 3 SCC 235 : AIR 1982 SC 1473 , it has been observed that Article 23 of the Constitution of India protects individual not only against State but against private citizens and that Begar means labour or service which a person is forced to give without receiving any remuneration or which is less than minimum wages. It amounts to violation of fundamental enshrined under Articles 17, 23 and 24 of the Constitution. It has further been laid down that it is the Constitutional obligation of the State to take necessary steps to stop such violation and ensuring observation of the fundamental right by private individuals who are transgressing the same. 22. The aforesaid decision has been followed in State of Gujarat v. Hon'ble High Court of Gujarat, (1998) 7 SCC 392 and where in context with the convicts it was held that all prisoners doing labour are entitle to equitable wages. 23. 22. The aforesaid decision has been followed in State of Gujarat v. Hon'ble High Court of Gujarat, (1998) 7 SCC 392 and where in context with the convicts it was held that all prisoners doing labour are entitle to equitable wages. 23. The learned Single Judge while passing the judgment and order dated 10.3.2010 found that there is no order of competent authority for withholding the salary of writ petitioner/respondent No. 1 for the period 1.10.1992 to 3.2.1995. The District Magistrate, Barabanki is neither the competent authority nor having any jurisdiction in the statute to withhold or stop the salary of respondent No. 1/writ petitioner rather the competent authorities were continuously directed to make payment of salary to the writ petitioner for the period in question. 24. Since the date of appointment i.e. 25.6.1987, the writ petitioner is continuously working on the post of Assistant Teacher in the institution of respondent No. 4 and also is getting salary from the date of initial appointment except the period in question. It is admitted fact that the writ petitioner was not having experience qualification of three years for the post of Assistant Teacher at the time of initial appointment then why disciplinary proceedings or any action provided in the statute has not been taken against the writ petitioner by the competent authority rather the opposite parties allowed the writ petitioner to work on the said post of Assistant Teacher since last several years and also make payment of salary for the said post continuously except the period in question. The salary of the period in question has been withheld by the opposite parties is not on the ground of qualification rather the same has been withheld by the opposite parties on the ground that the attendance of the writ petitioner for the said period has not been verified by the Principal of the Institution whereas it is admitted fact that the regular principal of the Institution was placed under suspension by the Committee of Management at the relevant time and the writ petitioner being senior most Teacher of the Institution was allowed to work as Officiating Principal of the Institution. 25. 25. From the perusal of the aforesaid facts and circumstances, it is clear that the dispute in question i.e. with respect to non-payment of arrears of salary to the writ petitioner for the period 1.10.1992 to 3.2.1995 is having no concerned with respect to the question of qualification or experience of the writ petitioner at the time of appointment on the post of Assistant Teacher in the Institution. 26. In view of above, we do not find any illegality or irregularity in the order dated 10.3.2010 passed by the learned Single Judge in Writ Petition No. 1842 (SS) of 1994. Accordingly, the instant special appeal is dismissed.