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2022 DIGILAW 1774 (ALL)

Rajneesh Tiwari v. State of U. P.

2022-11-11

SANGEETA CHANDRA

body2022
JUDGMENT : Mrs. Sangeeta Chandra, J. Heard learned counsel for the petitioner and Shri Manu Saxena, learned counsel who appears for the respondent Nos. 3 and 4 in both the writ petitions. 2. The Writ Petition No. 15156 of 2022 has been filed praying for issuance of a writ of mandamus to the respondents to pay arrears of the salary for the post of Head Clerk w.e.f. 25.1.2019 up to 31.12.2020 i.e. the period between termination and the date of joining alongwith interest at the rate of 12% per annum and to pay arrears of unpaid salary during the period of suspension i.e. w.e.f. 6.7.2018 to 25.1.2019 after adjusting subsistence allowance paid to the petitioner with admissible interest. 3. The writ petition No. 15946 of 2022 has been filed praying for a direction to be issued to the respondents to permit the petitioner to work on the post of Head Clerk on which he was working earlier before the suspension, he being the senior most clerk of Nagar Palika Parishad, Aonvla, Bareilly and to pay him regular salary of the post of Head Clerk as and when it falls due. 4. Earlier Writ Petition No. 15156 of 2022 was taken up earlier by this Court on 23.9.2022 and a detailed order was passed. The said order is being quoted hereinbelow : ''1. Heard learned counsel for the petitioner and Sri Manu Saxena, learned counsel for the contesting respondents. 2. This petition has been filed praying for a direction to be issued to the respondents to pay arrears of salary to the petitioner for the post of Head Clerk w.e.f. 25.1.2019 till 31.12.2020 i.e. period between termination and date of joining alongwith interest @ 12 % per annum. 3. It is the case of the petitioner that he was working as Head Clerk in Nagar Palika Parishad, Aonvla, District Barielly. The petitioner is a sincere worker, but on 16.7.2018 on the visit of an Hon'ble Minister in Nagar Palika Parishad, he requested the Driver of the Minister who had parked his car right in front of the gate of the Nagar Palika Parishad, Aonvla to remove the car and park it properly. The Driver of the Minister overreacted on the issue, and started fighting with the petitioner. The Minister did not take the aforesaid incident in a good spirit and he exercised his influenced over the respondents. The Driver of the Minister overreacted on the issue, and started fighting with the petitioner. The Minister did not take the aforesaid incident in a good spirit and he exercised his influenced over the respondents. No. 3 and 4 to initially suspend the petitioner on 16.7.2018, and to attach him at some other place. The petitioner was suspended and thereafter terminated on 25.1.2019 without any inquiry being conducted into the alleged misconduct. The petitioner challenged such order of termination in appeal. The Commissioner, Barielly Division, under Rule 3 of the U.P. Municipal Board Servants (Inquiry, Punishment and Termination of Service) Rules, 1960 exercised his power and set aside the termination order by observing that it had been passed without following the Principle of Natural Justice, leaving it open for the respondent Nos. 3 and 4 to initiate regular inquiry against the petitioner and to take appropriate action. 4. The petitioner was not permitted to join in pursuance of the order passed by the Commissioner and he approached this Court in Writ-A No. 12835 of 2020 (Rajneesh Tiwari v. State of U.P. and others) with a prayer for a Mandamus to be issued to the respondent to reinstate the petitioner in service and also to pay salary to the petitioner w.e.f. 6.7.2018 up to 25.1.2019, and thereafter, to pay him his full salary w.e.f. 25.1.2019 i.e. the date of the Order of the Termination till the date of his reinstatement. 5. This Court by its judgment and order dated 19.1.2021 had observed that the Order passed in Appeal clearly showed that the Appellate Authority has given liberty to the Executive Officer to initiate fresh Disciplinary Inquiry and the respondents have also initiated fresh Disciplinary Inquiry against the petitioner on 28.11.2020, thereafter. 6. The Court observed that since the respondents have proceeded with the fresh inquiry they may conclude the same in accordance with law and till fresh order is passed, after holding disciplinary inquiry as aforesaid, the petitioner would be entitled to continue and the issue relating to release of arrears of salary shall remain to subject to fresh orders to be passed by the respondents into the Disciplinary Inquiry. 7. It has been submitted that the Disciplinary Inquiry initiated against the petitioner had not concluded, although he has been reinstated, and he has been allowed to work. 8. 7. It has been submitted that the Disciplinary Inquiry initiated against the petitioner had not concluded, although he has been reinstated, and he has been allowed to work. 8. Sri Manu Saxena, learned counsel for the respondents prays for time to seek instructions from the respondents as to the current status of the Disciplinary Inquiry initiated afresh against the petitioner as mentioned in the order passed by this Court earlier. 9. List this matter on 30.9.2022, as fresh.'' 5. The counter-affidavit has been filed by Shri Manu Saxena, learned counsel for the respondents in which it has been admitted in paragraph No. 7 that when the order of termination dated 25.1.2019 was set aside and the petitioner was reinstated and a fresh inquiry against the petitioner was initiated on 28.11.2000, but no Inquiry Officer has been appointed till date. 6. It has also come up in the counter-affidavit filed in the Writ Petition No. 15946 of 2022 that the petitioner is the senior most clerk in the office of the respondent No. 4 and he had been working as In-Charge Head Clerk because the post of Head Clerk was vacant and there was no other person in the Nagar Palika Parishad, Aonvla, Bareilly who was senior to the petitioner. One Shri Prithvi Raj Singh who was earlier working as Head Clerk retired in January, 2009 and the petitioner was given charge to officiate as Clerk in February, 2009. Four persons senior to the petitioner namely Sompal Singh, Nand Kishore, Mohan Pal and Shaqeel Khan have all retired from service and therefore, the petitioner was allowed to work by way of order of the Executive Officer dated 21.5.2012 as in Charge of Head Clerk. 7. This Court has carefully perused the two counter-affidavits filed by the Nagar Palika Parishad, Aonvla, Bareilly and finds that it is evident that no rules were followed for appointment of the petitioner as Clerk and thereafter as Head Clerk. He was initially appointed on the post of Chungi Mohrir in June, 1989 and thereafter confirmed on 1.8.1999. The petitioner had made a representation for being promoted as Clerk, the Assistant Director, Local Bodies passed an order on 27.7.2010 that in case the petitioner had completed more than 20 years of service he may be promoted as Clerk. The petitioner had been working as Clerk since 1.10.2011. The petitioner had made a representation for being promoted as Clerk, the Assistant Director, Local Bodies passed an order on 27.7.2010 that in case the petitioner had completed more than 20 years of service he may be promoted as Clerk. The petitioner had been working as Clerk since 1.10.2011. Thereafter since the post of Head Clerk of Nagar Palika Parishad, Aonvla, Bareilly fell vacant and there was no other senior employee the petitioner was asked to officiate as Head Clerk by an order of Executive Officer on 21.5.2012. The petitioner was further not given the salary of Head Clerk, but continued to get the salary of Clerk. The petitioner was suspended on 16.7.2018 and thereafter terminated on 25.1.2019. In the Departmental Appeal filed before the Commissioner Bareilly Division, Bareilly, the order of Termination dated 25.1.2019 was set aside on 21.1.2020. However, the Nagar Palika Parishad, Aonvla, Bareilly was given time to initiate fresh inquiry. As the inquiry was initiated against the petitioner he was reinstated on 28.11.2020. 8. On the basis of the order passed in Appeal, the learned counsel for the petitioner says that since at the time of termination the petitioner was working as Head Clerk and as his Termination Order has been set aside he be allowed to work as Head Clerk and be given regular salary of Head Clerk 9. Learned counsel for the petitioner has placed reliance upon two judgments of the SC in the case of State of U.P. v. Dayanand Chakrawarty and others, 2013(7) SCC 595 and paragraph thereof and judgment in the case of North Delhi Municipal Corporation v. Ram Naresh Sharma and others, AIR 2021 (SC) 3795 and paragraph No. 21 thereof to say that in case the employer is wholly responsible for not taking work from the employee it cannot be said that the principle of 'no work no pay' would be applicable to such employee for the period of absence from duty. 10. This Court has carefully considered the paragraph No. 37 of the judgment of State of U.P. v. Dayanand Chakrawarty and others (Supra) which is as follows : 37. 10. This Court has carefully considered the paragraph No. 37 of the judgment of State of U.P. v. Dayanand Chakrawarty and others (Supra) which is as follows : 37. In view of the orders passed by this Court in Harwindra Kumar (Supra), Radhey Shyam Gautam (supra) and Jaswant Singh (supra), it was not open to the High Court to rely on some other decision of this Court, ratio of which is not applicable in the present case for determining back wages of respondents restricting it to be 20% of the basic salary. We observe that the principle of 'no pay no work' is not applicable to the employees who were guided by specific rules like Leave Rules etc. relating to absence from duty. Such principle can be applied to only those employees who were not guided by any specific rule relating to absence from duty. 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 pay no work' shall not be applicable to such employee.'' 11. Similary in North Delhi Municipal Corporation v. Ram Naresh Sharma and others Paragraph No. 21 of the report is being quoted hereinbelow : ''In the case of the respondent in SLP (C) 12046 of 2019 i.e. Dr. H.P. Singh, it is averred by the appellants, that he has not worked after superannuation on attaining the age of 60 years. But, there is sufficient evidence on record to suggest that the respondent-doctor through several representations sought to be re-appointed but it was the employer who created impediments and did not allow the respondent to re-join his duties in hospitals. In such circumstances, the principle of 'No Work No Pay' cannot be raised by the employers, as it is they who had obstructed the doctor from discharging his service. For support we may cite Dayanand Chakrawarthy v. State of Uttar Pradesh, (2013) 7 SCC 595 , where this Court speaking through Justice S.J. Mukhpadhyaya rightly held that: 48. 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 pay no work'' shall not be applicable to such employee.'' 12. 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 pay no work'' shall not be applicable to such employee.'' 12. It is apparent from the perusal of the judgment in the case of State of U.P. v. Dayanand Chakrawarty and others and North Delhi Municipal Corporation v. Ram Naresh Sharma and others (supra) that the employees who were the respondents had been retired before their due date of superannuation. As per the Rules applicable to them this Court had found that the petitioner ought to have retired at 60 years instead of 58 years. Some of the employees had approached the Courts earlier against the notice of retirement at the age of 58 years and the Court had not granted any interim order in their favour during the pendency of the writ petition. However, the salary for the period of absence from duty was not paid by the employer and the matter went up to the Supreme Court. The Supreme Court therefore made such observations as have been given in quoted hereinabove. 13. Such is not the case of the petitioner. The petitioner was suspended and thereafter inquiry was conducted and he was terminated by the competent authority. However in appeal, the Commissioner Bareilly Division found that inquiry was not conducted properly the charges framed against the petitioner were vague in nature and principles of natural justice were not followed. 14. The Commissioner, Bareilly Division, Bareilly set aside the Termination Order on technical ground, but did not set aside the charge-sheet, although he has observed that one of the charges was vague. At the time of passing of the order in appeal i.e. 21.1.2020, the Commissioner Bareilly Division, Bareilly failed to indicate that the Termination Order having been set aside the petitioner shall be reinstated only for the purpose of conduct of fresh Inquiry and his service benefits shall be subject to its result. At the time of passing of the order in appeal i.e. 21.1.2020, the Commissioner Bareilly Division, Bareilly failed to indicate that the Termination Order having been set aside the petitioner shall be reinstated only for the purpose of conduct of fresh Inquiry and his service benefits shall be subject to its result. I. It is settled law that once an order of punishment is set aside on technical ground by an order passed in Appeal by the competent authority/Court without making any observation leaving it open for the employer to initiate fresh inquiry from the stage it stood vitiated, such inquiry can be initiated and the reinstatement of the employee and consequential benefits shall be determined on the basis of final orders passed in such proceedings. 15. Reference in this regard can be made to the judgment of the Constitution Bench of the Supreme Court in the case of Managing Director, ECIL, Hyderabad and others v. B. Karunakar and others, 1993 (4) SCC 727 . 16. It is apparent that fresh inquiry was initiated against the petitioner on his reinstatement on 28.11.2020. In so far as the legality of the reinstatement order is concerned, reference can again be made to the observations made by the Hon'ble Supreme Court in the case of Managing Director, ECIL, Hyderabad and others v. B. Karunakar (supra) where it has been provided that such employee on reinstatement shall be put under suspension during inquiry proceedings and shall wait for the final orders to be passed for consequential benefits to be granted to him. However, in the case of the petitioner he has been reinstated on his substantive post of clerk and has been allowed to work. 17. The writ petition No. 15946 of 2022 has been filed praying for a direction to be issued to the respondents to permit the petitioner to work on the post of Head Clerk on which he was working earlier before the suspension, he being the senior most clerk of Nagar Palika Parishad, Aonvla, Bareilly and to pay him regular salary of the post of Head Clerk as and when it falls due. 18. No rules have been placed before this Court governing appointment and promotion of Clerk/Head Clerk in Nagar Palika Parishad concerned. 19. The learned counsel for the petitioner has only referred to Section 74 of the U.P. Municipalities Act, 1916 which is being quoted hereinbelow; ''74. 18. No rules have been placed before this Court governing appointment and promotion of Clerk/Head Clerk in Nagar Palika Parishad concerned. 19. The learned counsel for the petitioner has only referred to Section 74 of the U.P. Municipalities Act, 1916 which is being quoted hereinbelow; ''74. Appointment and dismissal of permanent superior staff.-Subject to the provisions of Sections 57 to 73, servants on posts in the non-centralised service, carrying scale of pay equal to or higher than the lowest scale of pay admissible to the clerical staff, shall be appointed and may be dismissed, removed or otherwise punished, or the services of a probationer may be terminated, by the President, subject to the right of appeal, except in the case of the termination of the service of a probationer, to such authority within such time and in such manner as may be prescribed :Provided that appointments on the posts of Tax Superintendent, Assistant Tax Superintendents, Inspectors, Head Clerks, Sectional Head Clerks, Sectional Accountants, Doctors, Vaids, Hakims and Municipal Fire Station Officers, shall be subject to the approval of the] [Municipality].'' 20. From a perusal of Section 74 of the U.P. Municipalities Act, 1916, it is apparent that appointment can be made by the President of Nagar Palika Parishad concerned to the post of Head Clerk, Sectional Head Clerk subject to approval of Municipality i.e. Board of Nagar Palika Parishad. 21. Learned counsel for the petitioner has pointed out the Board's Resolution dated 24.3.2018 at Agenda No. 75 and a mention has been made that earlier Head Clerk Murtuja Nabi Ishtiyak Ahmad, Yusuf Ali, had retired and the petitioner Rajnesh Tiwari was working to the satisfaction of the Board therefore, he would be allowed to work as Head Clerk of Nagar Palika Parishad, Aonvla, Bareilly. 22. The counsel for the petitioner has pointed out also an order dated 21.5.2012 passed by the Executive Officer of Nagar Palika Parishad, Aonvla, Bareilly wherein it has been stated that the post of Head Clerk is a post belonging to Centralized Services wherein posting/appointment/promotion has to be made by Director of Local Bodies. Since, the post of Head Clerk has remained vacant for long and work of Nagar Palika Parishad is being affected, therefore, the petitioner would be allowed to work as Head Clerk till the further orders passed by the Competent Authority. 23. Since, the post of Head Clerk has remained vacant for long and work of Nagar Palika Parishad is being affected, therefore, the petitioner would be allowed to work as Head Clerk till the further orders passed by the Competent Authority. 23. It has been submitted by the learned counsel for the petitioner that since his working on the post of Head Clerk had initially been allowed by the Executive Officer, Nagar Palika Parishad, Aonvla, Bareilly on 21.5.2012 and thereafter, the Board had also given approval as per Section 74 of the U.P. Municipalities Act, 1916 on 24.3.2018 he should be considered to have been duly promoted. The post of Head Clerk is undoubtedly a post of Centralized Services where the Director is the Competent Authority to make promotion/appointment/posting. In the case of the petitioner such procedure has not been followed as he has been officiating as Head Clerk only on the basis of Resolution dated 24.3.2018 of the Board. 24. It is settled law that no mandamus can be issued to the Authorities in the absence of any substantive legal rights of the petitioner. In the case of the petitioner his legal rights is only to be considered for promotion in accordance with the Rules applicable. The Director, Local Bodies is the competent authority for posting/appointing/promoting of Head Clerk as per the Rules, and as is evident from the order passed by the Executive Officer on 21.5.2012, the petitioner has not been posted/appointed/promoted following the Rules therefore, no mandamus can be issued to the respondents in Writ Petition No. 15946 of 2022 as prayed for. 25. In so far as the Writ Petition No. 15156 of 2022 is concerned, a prayer has been made that the salary for the period of suspension adjusting the subsistence allowance already paid and the salary w.e.f. 25.1.2019 up to 31.12.2020 be directed to be given to the petitioner. 26. This Court is clearly of the opinion that under Article 144 of the Constitution an observation made by the Supreme Court shall settle the law on a subject and all the Authorities are bound to Act in the aid of the orders passed by the Supreme Court. 26. This Court is clearly of the opinion that under Article 144 of the Constitution an observation made by the Supreme Court shall settle the law on a subject and all the Authorities are bound to Act in the aid of the orders passed by the Supreme Court. In the case of the petitioner, the Commissioner committed a serious error while allowing the appeal of the petitioner on technical grounds when he did not clarify that the reinstatement of the petitioner and his working shall be governed by the orders passed in fresh inquiry to be initiated by the Nagar Palika Parishad concerned. 27. The petitioner has been reinstated and has been working as Clerk. No suspension order has been passed which this Court thinks was necessary in the case. However since the petitioner has not been suspended, no fruitful purpose would be served in suspending the petitioner now to conduct inquiry that was initiated by the order dated 28.11.2020. 28. Since the charges that were framed against the petitioner were found vague by the Appellate Authority, this petition is disposed of with a direction to the respondent No. 4 to appoint an Inquiry Officer and to approve a newly constituted detailed charge-sheet within a period of six weeks from the date a copy of this order is produced before him. The petitioner shall be allowed to work as Clerk. He shall face inquiry and it shall be held strictly in accordance with Rules. Final order passed in the inquiry shall govern the payment of salary to the petitioner and other consequential benefits. 29. Since it has come to the notice of the Court that Director, respondent No. 2 is the competent authority to post/appoint/promote any person to the post of Head Clerk which is a post belonging to Centralized Services, a mandamus is issued to the respondent No. 2 to take appropriate steps in this regard and consider all eligible persons from feeding Cadre on the basis of Rules framed by the competent authority and to pass appropriate orders as expeditiously as possible say within a period of six months from the date a copy of this order is produced before him. 30. Learned Standing Counsel shall inform of the order passed today to the respondent Nos. 1 and 2 within a period of one week.