JUDGMENT : (Civil Misc. Delay Condonation Application No. 1 of 2024) 1. Shri Shamim Uddin Khan, learned counsel for the respondent-petitioner states that he is not inclined to file an objection to the delay condonation application and he has no objection in case delay condonation application is allowed. 2. For the reasons stated in affidavit filed in support of delay condonation application, as the same constitutes sufficient cause for condoning delay in filing Special Appeal, the delay condonation application is allowed. The Special Appeal is treated to have been filed well within time. (Order on Special Appeal) 1. Heard Shri Adarsh Bhushan, learned counsel for the appellant-respondents and Shri Shamim Uddin Khan, learned counsel for the respondent-petitioner. 2. The present intra-court appeal is preferred against the Judgment dated 15.02.2024 passed by the learned Single Judge in Writ-A No. 19152 of 2021 (Israr Ali vs. State of Uttar Pradesh and others) on the ground that the relief that has been sought for by the respondent-petitioner in the aforesaid writ petition was at belated stage, as the aforesaid writ petition was instituted in the year 2021 and respondent petitioner was superannuated on 30.06.2019, whereas, the cause of action arose way back in the year 2011. 3. The learned Single Judge vide it's order dated 15.02.2024 had finally allowed the writ petition with a direction to the Superintending Engineer, Electricity Works Division, Prayagraj, ordering him to pay the petitioner, arrears of one month additional salary (honorarium) from the financial year 2010-11 until the financial year till he retired, in accordance with the Corporation's order dated 5th July, 2011, together with 6% interest due from the date that each year's honorarium fell due until payment. 4. Shri Adarsh Bhushan, learned counsel for the appellant-respondents has vehemently submitted that during the year 2010 to 2019, admittedly the petitioner had not discharged his duty as driver. But on his request, on account of his suffering from serious heart ailment and lungs disease, appellant-respondents on humanitarian ground had not assigned any work to the respondent-petitioner in the capacity of driver, and he was assigned only office work to keep and maintain the record of files. Even in the counter affidavit a categorical stand was taken before learned Single Judge that the appellant-respondent had released an amount of Rs. Even in the counter affidavit a categorical stand was taken before learned Single Judge that the appellant-respondent had released an amount of Rs. 1,39,600/-in favour of respondent-petitioner with regard to the treatment of his heart ailment during 05.07.2013 to 18.07.2013 and necessary bills have also been brought on record alongwith counter affidavit. 5. In this background, learned counsel for the appellant-respondents further submits that it is not in dispute that the petitioner had performed the work as driver in the Corporation only till 2010. Due to his own medical condition, he moved an application for some ministerial work and admittedly on the basis of his insistence, and on humanitarian ground, the said request was processed by the department and he was accorded lighter work. No where, in the writ petition it has been mentioned that he has actually performed the work of driver. He fairly states that no formal order to that effect has although been passed by the department but admittedly, the petitioner has not performed the work as driver in the Corporation and the said one month additional salary was also not paid since year 2010. Further, he had never made any claim qua the additional one month salary from the Corporation since 2010 and he kept mum through out his service period. He further submits that after two years of superannuation, respondent-petitioner initiated a claim of one month additional salary w.e.f. 2010 to 2019 after lapse of almost 12 years by way of filing the aforesaid writ petition. He submits that the learned Single Judge erred in law and has passed the impugned judgment without considering the above said aspect of the matter finally allowed the writ petition and accorded the relief vide order dated 15.02.2024. 6. Per contra, learned counsel for the respondent-petitioner vehemently opposed the submission advanced by the appellants-respondents and submits that so far as the nomenclature of the post of petitioner in the department is concerned, it has not been changed and he continuously got the salary for the post of driver. He further submits that in view of the order dated 05th July, 2011 issued by the Uttar Pradesh Power Corporation, respondent-petitioner was entitled to get a month's extra salary (honorarium) in every financial year, but appellant-respondents in arbitrary manner denied the said benefit. He further submits that in view of the order dated 05th July, 2011 issued by the Uttar Pradesh Power Corporation, respondent-petitioner was entitled to get a month's extra salary (honorarium) in every financial year, but appellant-respondents in arbitrary manner denied the said benefit. He further submits that aggrieved with the said denial, petitioner approached this Court by way of filing writ petition and ventilated his grievance before the learned Single Judge and learned Single Judge has rightly proceeded to consider the order dated 05th July, 2011 issued by the Uttar Pradesh Power Corporation and has accorded the relief and allowed the petition vide order dated 15.02.2024, which warrants no interference by this Bench. But, he fairly states that so far as the actual working of the petitioner is concerned, actually respondent-petitioner has not performed his work as driver in the Corporation, although his designation has never been changed through any formal order. In absence thereof, he is entitled for one month additional salary in every financial year. 7. After considering the rival submissions advanced by the parties and perusal of the record as well as counter affidavit which is appended alongwith record of the present appeal, we find that categorical stand has been taken by the appellants-respondents that the respondent-petitioner was not assigned the job of driver from the year 2010 onwards and the same was being outsourced from agency. Looking into the serious health condition of the petitioner, on humanitarian ground, he was assigned a desk job. Further to meet out his medical expenses a sum of Rs. 1,39,600/-was granted for his treatment. Paragraph Nos. 9 and 10 of the counter affidavit is reproduced herein below for ready reference :- "9. That the contents of paragraph 13 of the writ petition not correct as stated the same are misconceived hence denied. From the year of 2010 to 2019 the work of driving of vehicle done by the outsource agency and petitioner was seriously ill due to heart diseases and lung diseases due to this reason on the request of petitioner only on the humanitarian ground petitioner was done only office work to kept and maintain the record and file, it is also pertinent to mention over here the petitioner was received medical allowance one lac thirty nine thousand sis hundred (1,39,600/-) for the treatment of heart from 05.07.2013 to 18.07.2013 in the hospital of heart line cardiac centre Allahabad. A true copy of the medical bill passed by respondents along with Medical certificate are being filed here with and marked as Annexure no. CA-2 to this Counter Affidavit. 10. That the contents of the paragraph 14 and 15 of the writ petition are not correct as stated the same are misconceived hence denied. The Petitioner was not work as a driver on the request of petitioner. Petitioner was done only official work as record keeper to kept and maintain the record and work of driver was done by outsource agency, So there is no good ground in this writ petition and devoid of merit hence this writ is liable to be reject with cost." 8. Considering the factual situation, it is evident that the petitioner has never demanded any additional salary during his service period from 2010 till his retirement and at belated stage, attempt has been made to get one month additional salary (honorarium) for the work which he did not perform. 9. The order dated 05th July, 2011 passed by the Uttar Pradesh Power Corporation which provides for the payment of a month's extra salary (honorarium) in every financial year to regular drivers of the Corporation attached to a vehicle is reproduced herein below: 10. In the matter at hand, it is pertinent to note that the order dated 05th July, 2011 issued by the Uttar Pradesh Power Corporation was instituted with the explicit objective of compensating drivers for the additional work and hardships they endure, including overtime and other strenuous duties associated with their job. The essence of this order is to provide fair remuneration to those who fulfil the specific functions and responsibilities of a driver, thereby acknowledging and addressing the unique challenges faced by these employees in the course of their duties. 11. However, the application of this order cannot be distorted to extend benefits to individuals who have not performed the requisite duties of a driver. The objective of the compensation order would be undermined if it were used to claim benefits without the corresponding fulfilment of duties. The law, in its intention to provide equitable relief, cannot be utilized to gain unwarranted advantage by defeating the fundamental purpose of recognizing and compensating the additional efforts and hardships of drivers. The objective of the compensation order would be undermined if it were used to claim benefits without the corresponding fulfilment of duties. The law, in its intention to provide equitable relief, cannot be utilized to gain unwarranted advantage by defeating the fundamental purpose of recognizing and compensating the additional efforts and hardships of drivers. Consequently, the entitlement to such honorarium is contingent upon the actual performance of driving duties, and any deviation from this principle would be contrary to the legislative intent and the principles of equity and fairness. 12. The Hon’ble Supreme Court in the matter of J.N. Srivastava Vs. Union of India reported in (1998) 9 SCC 559 has dealt with the principle of “no work no pay”. The Hon’ble Court has clearly held that the employee would be entitled for the arrears of salary and other emoluments only if he is ready and willing to work and the employer refused to grant him the work. However, in this case, the employee respondent-petitioner was not ready and willing to work as a driver, on the ground of his ill health and on his own accord, he chose to take a much comfortable desk job in which the extra honorarium was not assigned. He worked on the said job for the ten years’ and after his retirement, now he is claiming for the emolument of a post on which he even did not worked for. 13. In this case the respondent-petitioner, he himself opted not to work as a driver, and on his request a desk job was assigned. After the change of his job from 2010 till the age of superannuation he did not ask for the honorarium salary which was fixed with the driver job. Though the nature of the job was changed but the nomenclature was not changed, the respondent-petitioner cannot take an advantage of this clerical mistake. It is not a case where the appellant corporation had not assigned him the work for which he was entitled to, on the contrary the corporation had assigned a comfortable job which he had asked for. Since he opted for not doing the job, he cannot demand the pay and that too, after a lapse of almost 12 years and after the superannuation. 14. Hon’ble Supreme Court in the matter of State of Kerala Vs. Since he opted for not doing the job, he cannot demand the pay and that too, after a lapse of almost 12 years and after the superannuation. 14. Hon’ble Supreme Court in the matter of State of Kerala Vs. E K Bhaskaran Pillai reported in (2007) 6 SCC 524 has held that the principle of “no work no pay” cannot be accepted as a thumb rule and the matter will have to be considered on a case to case basis. 15. A Constitution Bench considered application of “no work, no pay” in the matter of employees of Bank going on strike in Syndicate Bank vs. K. Umesh Nayak AIR (1995) SC 319 and observed that whoever, voluntarily refrains from doing work when it is offered to him is not entitled for payment for the work not done. In other words that is the dictum of “no work, no pay”. 16. Hon’ble Supreme Court in the matter of Union Territory Chandigarh Vs. Brijmohan Kaur reported in (2007) 11 SCC 488 has categorically held that the principle of “no work no pay” is based upon a fundamental concept that in case employee did not carry out the work when there is no refusal on behalf of the employer to grant such work then the principle of “no work no pay” would come into force. This principle has been laid down keeping in view public interest and the government servant who did not discharge his duty is not entitled to get pay for the work which they have not done, on the cost of public exchequer. 17. The principle of “no work no pay” would attract when the employee himself does not carry out the work which he is supposed to do. In this case, it is not a case where the employee was ready to work as a driver and the appellant-respondent purposely did not grant him work. On the contrary, in this case the respondent-petitioner opted for not doing the work and wanted a comfortable job, which on a humanitarian ground was assigned to him and after completing his tenure, it is not open for the respondent to ask for the honorarium and other pay which was attached with the job he chose not to do. 18. In this case, the petitioner knowingly accepted lighter duties due to his medical condition and did not demand the honorarium during his service. 18. In this case, the petitioner knowingly accepted lighter duties due to his medical condition and did not demand the honorarium during his service. Granting the honorarium post-retirement, despite his nonperformance of driver duties, would be inequitable and unjust, contravening the principles established in cantena of Supreme Court judgments. 19. The approach of the Court should not be rigid or mechanical but should be flexible and realistic and it should also not tilt the equity in favour of a person who on his own accord chose not to carry on the hard work and chose for a comfortable desk job, is not entitled for extra privileges which was attached to the hard work. 20. Further the principle of acquiescence is relevant here, as respondent-petitioner's prolonged inaction and failure to demand the honorarium during his service period, despite being aware that he was not performing the duties of a driver, constitutes acquiescence. This inaction can be seen as a waiver of his right to claim the honorarium later. By not raising the issue during his service, the petitioner effectively accepted the change in his duties and the corresponding absence of the honorarium. 21. Hon’ble Supreme Court in Union of India v. Tarsem Singh (2008) 8 SCC 648 dealt with the issue of delayed claims and their impact on the employer. In this case, the belated claim by the petitioner, made two years after his superannuation, poses financial and administrative challenges. The court acknowledged that delayed claims can put a heavy financial strain on the employer, particularly in cases where the employee knew the facts but chose not to pursue the issue promptly. Acknowledging such claims could have unfair financial repercussions for the corporation, which is unjust considering the conscious and sustained inaction of the respondent-petitioner. 22. The learned Single Judge had granted one month additional salary as honorarium from the financial year 2010-2011 until the financial year till he retired along with interest of 6%. We find conversely, if the present claim is accepted in such eventuality, the Corporation may not consider even a genuine medical condition of employee and assign them lighter work on the their request on humanitarian ground, if it will be saddled to pay the honorarium as directed by learned Single Judge. 23. The appellant Corporation cannot be saddled with such a cost just because nomenclature of the driver was not change in the record. 23. The appellant Corporation cannot be saddled with such a cost just because nomenclature of the driver was not change in the record. If the impugned order passed in Writ -A No. 19152 of 2021 (Israr Ali vs. State of Uttar Pradesh and others) is not set aside, it will create a wrong precedent, as people will opt for comfortable job and after the retirement would seek honorarium, which is only available to the driver, who were supposed to be working for long hours and in the longer run it will create a huge financial impact for the corporation. Petitioner’s protracted inaction and the potential financial and administrative costs on the Corporation is supported by the ratio laid down by Hon’ble Supreme Court in aforementioned judgments cited above, this Court finds that the petitioner's claim for the honorarium is not justified. 24. In view of the observation made above, the judgment passed by the learned Single Judge dated 15.02.2024 is not sustainable and is accordingly set aside. 25. The instant Special Appeal is accordingly allowed.