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2021 DIGILAW 1030 (JHR)

State of Jharkhand v. Jagdish Prasad Yadav

2021-12-13

RAVI RANJAN, SUJIT NARAYAN PRASAD

body2021
ORDER : 1. The instant intra-court appeal under Clause 10 of the Letters Patent is preferred against the order/judgment dated 01.02.2021 in W.P. (S) No. 2210 of 2018 whereby and whereunder the learned Single Judge has quashed order dated 30.09.2015 and 23.06.2015 in part, so far observation with respect to ‘no work no pay’ is concerned; and held that the petitioner is entitled to get the consequential benefits for the period 01.03.1996 to 25.03.1999 and 14.08.2000 to 19.03.2002 within a period of twelve weeks. 2. The brief facts of the case, which is required to be enumerated, read as hereunder: The land of the writ petitioner was acquired for construction of Punasi Dam Project and as per the scheme of the government, he was entitled to get employment. Accordingly he was offered with letter of appointment vide letter dated 13.08.1992. However, the erstwhile State of Bihar stayed the appointment of petitioner and other similarly situated persons vide letter dated 14.09.1992, the same was challenged before Patna High Court by filing writ petition being C.W.J.C No. 11394 of 1992, which was allowed vide order dated 11.02.1993 directing the respondents to accept the joining of the writ petitioner. Thereafter, the petitioner gave his joining on 22.02.1993. However, when the order passed by the Court was not complied with, a contempt petition being M.J.C. No. 890 of 1993 was filed by the writ petitioner. Pursuant thereto the petitioner was allowed to join his duty vide order dated 29.09.1993 w.e.f. 22.02.1993. Accordingly, he joined on 27.12.1993. But the petitioner was again terminated on 20.02.1996. Aggrieved thereof, the petitioner again approached this Court by filing C.W.J.C No. 1006 of 1993 which was allowed. But when the order passed by the Court was not complied with the petitioner filed contempt petition being MJC No. 376 of 1999. Thereafter, the petitioner was allowed to join vide letter dated 24.03.1999. Again, the writ petitioner was dismissed from service on 14.08.2000 against which he represented before the authorities concerned, who reinstated him in service vide order dated 19.03.2002. It is case of the petitioner though services of the petitioner was regularized vide order dated 30.09.2015 and 23.06.2015 for the period he remained out of service i.e. 01.03.1996 to 25.03.1999 and 14.08.2000 to 19.03.2002 but was denied salary for the said period, for which he filed writ petition being W.P. (S) No. 2210 of 2018. It is case of the petitioner though services of the petitioner was regularized vide order dated 30.09.2015 and 23.06.2015 for the period he remained out of service i.e. 01.03.1996 to 25.03.1999 and 14.08.2000 to 19.03.2002 but was denied salary for the said period, for which he filed writ petition being W.P. (S) No. 2210 of 2018. The writ petitioner has taken the ground that when there is no fault on his part rather the State authorities had deprived the writ petitioner from discharging his duty, the principle of ‘no work no pay’ will not apply in the case at hand. However, without taking into this aspect of the matter, the salary for the aforesaid period i.e. 01.03.1996 to 25.03.1999 and 14.08.2000 to 19.03.2002 has been denied which is absolutely illegal and improper decision for the reason that on the one hand the State authorities have regularized the services of the petitioner for the aforesaid period while on the other hand has denied to make payment of salary for the aforesaid period. The State had taken the plea that since the writ petitioner had not discharged duty for the aforesaid period as such the authority after taking into consideration the aforesaid aspect of the matter and applying the principle of ‘no work no pay’ is correct in taking such decision by denying the salary for the aforesaid period. The learned Single Judge, after taking into consideration the submissions advanced by the parties held that the writ petitioner was forcefully deprived from discharging his duty; and since similarly situated persons have been extended the benefit, quashed impugned orders dated 30.09.2015 and 23.06.2015 whereby salary for the interregnum period was denied on the ground of ‘no work no pay’ which is the subject matter of present intra-court appeal. 3. Mr. 3. Mr. Sachin Kumar, learned A.A.G. II appearing for the appellants-State referring to the proposition of law laid down in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others, (2013) 10 SCC 324 has submitted that the writ petitioner is not entitled for salary for the period he has not work as no pleading to the effect that he was not gainfully employed during the period when he was out of service, has been pleaded by the petitioner, but the learned Single Judge without considering this aspect of the matter held the petitioner entitled for salary for the intervening period, which cannot be said to be sustainable in eyes of law. Accordingly, the same may be quashed and set aside. 4. This Court, on the basis of factual aspects involved in the lis, is required to answer as to whether in the facts and circumstances of the case the principle of ‘no work no pay’ will be applicable denying the salary for the period 01.03.1996 to 25.03.1999 and 14.08.2000 to 19.03.2002 to the petitioner? 5. The admitted fact in this case is that the writ petitioner along with others were provided appointment on the ground that their lands were being acquired for the construction of Punasi Dam Project by issuance of appointment letter dated 13.08.1992. The Government of Bihar stayed the appointment of petitioner vide letter dated 14.09.1992, the same was challenged by filing CWJC No. 11394 of 1992 which was allowed vide order dated 11.02.1993 and pursuant to filing of contempt petition being MJC No. 890 of 1993, the petitioner was allowed to join his duty vide order dated 29.09.1993. Accordingly, he gave his joining on 27.12.1993. The petitioner was again terminated on 20.02.1996, against which the petitioner again approached this Court by filing C.W.J.C No. 1006 of 1993 which was allowed and in pursuance to filing of contempt petition being MJC No. 376 of 1999 the petitioner was allowed to join vide letter dated 24.03.1999. Again, the writ petitioner was dismissed from service on 14.08.2000 against which he represented before the authorities concerned, who reinstated him in service vide order dated 19.03.2002. Thereafter, the petitioner filed representation for extending monetary benefit for the period he was out of service before the authorities. Again, the writ petitioner was dismissed from service on 14.08.2000 against which he represented before the authorities concerned, who reinstated him in service vide order dated 19.03.2002. Thereafter, the petitioner filed representation for extending monetary benefit for the period he was out of service before the authorities. Upon this, vide order dated 30.09.2015 his services was regularized for the period 01.03.1996 to 25.03.1999 and further vide order dated 23.06.2015 his services was regularized for the period 14.08.2000 to 19.03.2002, but salary for the aforesaid period was denied on the principle of “no work no pay.” 6. There is no dispute about the fact that the principle of ‘no work no pay’ is applicable in a case where the employee has not discharged his duty but it has got exception and it will not be applicable in a case where the employee was willing to work but had not been allowed to discharge the duty and if such a condition would be there, the principle of no work no pay will not be applicable, as has been held by the Hon’ble Apex Court (three judges) in the case of Union of India and Others vs. K.V. Jankiraman, (1991) 4 SCC 109 at paragraph 25, relevant passage of which reads 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.” Likewise, in Commissioner, Karnataka Housing Board vs. C. Muddaiah, (2007) 7 SCC 689 it has been held at paragraph 34 as hereunder: “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. 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. 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.” (Emphasis supplied) Further, in Jasmer Singh vs. State of Haryana and Another, (2015) 4 SCC 458 , at paragraph 21 and 22, it has been held as under: “21. The said relief in favour of the appellant-workman, particularly the full back wages is supported by the legal principles laid down by this Court in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya, wherein the Division Bench of this Court to which one of us was a member, 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. 22. The relevant Para of the decision is extracted hereunder: “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, 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. 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, 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. 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. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” Thus, it is evident that larger Bench of the Hon’ble Apex Court in the case of Union of India and Others vs. K.V. Jankiraman (supra) has held that although no work no pay is the normal rule, but it has got exception and it will not be applicable in a case where the employee was willing to work but had not been allowed to discharge the duty and if such a condition would be there, the principle of no work no pay will not be applicable. Likewise, in Commissioner, Karnataka Housing Board vs. C. Muddaiah (supra), similar view has been taken holding therein that an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law, cannot be said to be acceptable. 7. Likewise, in Commissioner, Karnataka Housing Board vs. C. Muddaiah (supra), similar view has been taken holding therein that an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law, cannot be said to be acceptable. 7. From the facts, discussed above, it is evident that the writ petitioner was pursuing his cause for acceptance of his joining so that he could discharge his duty and it is the respondents-State who has not allowed the writ petitioner to resume his duty for which he has to file series of litigation by invoking writ jurisdiction of this Court conferred under Article 226 of the Constitution of India, not only that, even after the order passed by the writ Court the writ petitioner was not allowed to resume his duty and therefore, he had to file contempt petition and only then he was allowed to resume his duty. It is further evident from the materials available on record that subsequently the services of the petitioner was regularized for the interregnum period for which he was out of service, i.e. 01.03.1996 to 25.03.1999 and 14.08.2000 to 19.03.2002. It is not in dispute that the writ petitioner was willing to discharge his duty but he was forcefully deprived from discharging his duties, therefore, principle of ‘no work no pay’ will not be applicable in the facts and circumstances of the case. 8. However, submission has been made by learned counsel for the appellants-State that the principle of ‘no work no pay’ will be applicable. To buttress his argument he has relied upon the judgment rendered in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others, (2013) 10 SCC 324 , and has submitted that the writ petitioner is not entitled for payment of salary for the interregnum period as no pleading to the effect that he was not gainfully employed during the period when he was out of service, has been pleaded and had such pleading been made the respondents-authorities would have made efforts to disprove it, but no such pleading has been made by the petitioner. 9. 9. This Court has considered the submissions advanced by learned counsel for the appellants and after going across the judgment referred by appellants-State in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others (supra) is of the view that it will not be applicable as the said judgment arises out of the order passed by the Tribunal and in that context it has been held that the fact about gainful employment for the interregnum period is to be raised by the employee and only when it will be raised by the employee, onus would be upon the employer to disprove it which will be considered by the adjudicator concerned. Further, the judgment passed in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others (supra) is in the context of an adjudication to be made by the Tribunal but in the case in hand there is no adjudication by the tribunal i.e. the adjudicator where the evidence would be led. 10. In the case in hand, the fact which is not in dispute is that the writ petitioner was either terminated or not allowed to join duty by the authorities concerned then the question will be even if writ petitioner will take the plea of not gainfully employed who will adjudicate the matter. Certainly, State authority cannot adjudicate the same since they are not the adjudicator in the eye of law rather they are administrative authority to take decision. Adjudicator always means the quasi judicial authority or Court of law where the evidence can be led for proper appreciation of the factual aspect in defence by either of the parties. Therefore, what has been contended by learned Additional Advocate General II appearing for the appellants-State in the facts of the given case, taking the submission that plea of not gainfully employed has not been taken by the writ petitioner, is not worth to be considered as in the case in hand the State authority which has taken decision for denying the salary, being a party, cannot be treated to be adjudicator. 11. 11. The fact remains that as has been referred herein above that it is the respondents who denied opportunity to the writ petitioner to discharge his duty and once the on the basis of the fact the State is at fault in not allowing the writ petitioner to discharge his duty, for its own fault the State cannot be allowed to take advantage. 12. Therefore, this Court, after applying the ratio laid down by hon’ble Apex Court in Union of India and Others vs. K.V. Jankiraman (supra), is of the view that in the facts and circumstances of the case, principle of ‘no work no pay’ will not be applicable. 13. The learned Single Judge after taking into consideration the facts in entirety as discussed hereinabove is correct in quashing the part of orders dated 30.09.2015 and 23.06.2015 whereby and whereunder applying the principle of ‘no work no pay’ payment of salary for the period 01.03.1996 to 25.03.1999 and 14.08.2000 to 19.03.2002 has been denied. 14. In view thereof, according to considered view of this Court, the order passed by the learned Single Judge requires no interference. 15. Accordingly, the appeal fails and is dismissed. 16. Consequent upon dismissal of the intra-court appeal, Interlocutory Application being I.A. No. 6332 of 2021 stands dismissed.