Madhya Pradesh High Court
Anand Mohan Saxena vs State Of M.P. on 29 June, 2016
1 First Appeal No. 08/2007
HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR
First Appeal No. 08 OF 2007
Anand Mohan Saxena
-Vs-
State of Madhya Pradesh and others
For the appellant : Shri O.P. Saxena, Advocate
For the State/respondents : Shri Prabal Solanki, Public Prosecutor
No. 1, 2 and 3
For the respondent No. 4 : Shri Vivek Khedkar, Advocate
PRESENT : HON'BLE MR. JUSTICE N.K. GUPTA
JUDGMENT
(29/06/2016) The appellant has preferred the present appeal being aggrieved with the judgment and decree dated 30.10.2006 passed by second Additional District Judge (Fast Track Court, Datia) in Civil Suit No. 1-A/2006, whereby suit for declaration and recovery of salary filed by the appellant/plaintiff was dismissed.
(2) The admitted facts of this case are that the appellant/ plaintiff was working in the District Treasury, Datia since 30.12.2002 when he joined in that office. It is also admitted that on 20.06.2003, the appellant was relieved from the District Treasury, Datia to report at Training Centre, Gwalior on 23.06.2003 and an order Ex. P-13 was issued. It is also admitted that the respondent No. 2 - the Commissioner Treasuries and Accounts, Bhopal had issued a transfer order dated 26.06.2003, by which the appellant was transferred from Datia to Gwalior. It is also admitted that on 07.07.2003 the appellant submitted a leave application for grant of medical leave for two weeks from 07.07.2003. Original application Ex. P-25 along with medical certificate Ex. P-26 were returned to the appellant with the direction that those be submitted before Gwalior office. It is also admitted that the appellant had moved a writ petition (W.P. No. 2014/2003) challenging the transfer order, in which it was directed vide order dated 10.07.2003 that his representation shall be considered and a 2 First Appeal No. 08/2007 speaking order shall be passed and he should not be relieved if he is still working in the post. It is also admitted that vide order dated 07.06.2004 Ex. P-36, the transfer of the appellant from Datia to Gwalior was cancelled.
(3) The appellant/plaintiff has filed a civil suit that initially he was working as a UDC in the District Treasury, Datia. On 23.12.2002 he was promoted to the post of Assistant Accountant and he resumed the charge of that post on 30.12.2002. He worked on this post up to 18.07.2003 but he was not paid the salary of last three months'. However, on negotiations with Collector and senior officers of the district, three months' salary of the appellant was paid but thereafter no payment of salary was made to the appellant. Since the appellant was working as a District President of Employees Union of Treasury, he could not be transferred from the post according to the transfer policy of the Government. He was sent for system operation training held in between 23.06.2003 to 05.07.2003 and he was relieved for that purpose. In the meantime, a transfer order was issued and without giving any information, a relieving order was passed by the respondent No. 3. The appellant has filed a writ petition against the order of transfer and he got a relief that he was permitted to work on the post at Datia until his representation is decided. However, neither he was permitted to do the work nor his attendance was marked in the attendance register. Several representations and applications were given by the appellant to the higher authorities including the Collector, Datia. Ultimately his transfer order was cancelled. However, no salary of the period from 07.07.2003 to 13.06.2004 was paid to him and, therefore, he has filed a civil suit for declaration and a consequential relief for getting arrears of salary of Rs.80,500/- along with 2% interest on that sum.
(4) The respondents No. 1 to 3 / defendants No. 1 to 3 in their written statement have denied all the pleadings made by the plaintiff/appellant. It is pleaded that he was entitled to get the salary from 07.07.2003 to 13.06.2004 from Gorkhi Treasury, Gwalior but since he did not appear in that office to do work, therefore, on the 3 First Appeal No. 08/2007 principle of no work no pay, nothing was paid to him.
(5) It was pleaded by the respondent No. 4 that there was no mischief on the part of the respondent No. 4 in relieving the appellant on 07.07.2003 and, therefore, his suit was not acceptable. It was also pleaded that he did not deposit any court fees relating to decree of arrears of the salary of Rs.80,500/- and, therefore, he was not entitled for that sum. The respondent No. 4 has submitted in the written statement in the same tune as pleaded by the respondents No. 1, 2 and 3. It was further pleaded that before taking any action, the respondent No. 4 always sought guidance from the superior officers, he also sought the guidance from Additional Advocate General, Gwalior and he got the advise that order of relieving the appellant was correct and there was no need to permit the appellant's joining at Datia office. It was also submitted that the suit filed by the appellant be dismissed.
(6) The trial Court after considering the pleadings prepared as many as ten issues relating to appointment of the appellant as a President of the Union, his explanation for transfer on the basis of transfer policy, whether he was transferred against the transfer policy, whether the relieving order dated 07.07.2003 was prepared on 18.07.2003, whether that order was null and void, whether the appellant continued in the office of District Treasury, Datia since 01.07.2003 to 13.06.2004, whether he was entitled for salary of that period, whether he gave the sufficient court fees after making an appropriate valuation of the relief and whether suit was filed by the appellant was baseless and false and about relief and costs and ultimately recording the evidence of parties, dismissed the suit. (7) During the pendency of the appeal, the appellant has filed I.A. No. 10669/2009, an application under Order 41 Rule 27 of the CPC to take three documents on record, (i) Annexure A-1 the representation of President of State Level Union of the Employees to State Minister, Finance and Commercial Tax of M.P. Government, Bhopal (ii) a letter issued by the concerned State Minister to the respondent No. 2 and (iii) a letter issued by Joint Director to Additional 4 First Appeal No. 08/2007 Director / Public Information Officer, Directorate of Treasury and Accounts, Madhya Pradesh along with the note-sheets. It was directed vide order dated 27.09.2009 that the application shall be considered at the time of final disposal of the case and, therefore, I have heard the learned counsel for the parties on that application and also heard them finally.
(8) Learned counsel for the appellant has vehemently argued the matter that transfer of the appellant was done against the State policy and, therefore, he could not be relieved. He was shown relieved malafidely, whereas he was not served with the transfer order. He invited the attention of this Court to the various documents specially Ex. P-12, P-25, P-26, P-43 and the documents filed under Order 41 Rule 27 of the CPC that the appellant could not get his salary due to malafide activity of the respondent No. 4. It was submitted that since his transfer order was illegal, he could not be relieved and thereafter the respondent No. 4 did not comply the order of the writ Court and, therefore, it shall be presumed that he was deprived by the respondent No. 4 illegally to do work on his post and, therefore, principle of no work no pay shall not be applied. In reply to the submissions made by the learned counsel for the respondent No. 4 that in absence of consequential relief, suit was not maintainable for payment of salary. It was submitted that the court fees of Rs.9,000/- has been deposited by the appellant and in compliance to the order dated 25.06.2007, the court fees of Rs.9,000/- was deposited on 25.06.2007.
(9) On the other hand, learned counsel for the respondent No. 4 has submitted that the appellant was not entitled to get the salary on the basis of the principle no work no pay and since he did not deposit the appropriate court fees before the trial Court, in the light of opinion passed by the Division Bench of this Court in the cae of "Apparao Sheshrao Deshmukh Vs. Smt. Bhagubai W/o Yeshwantrao Deshmukh and others" [AIR 1949 Nagpur 1], his suit was fit to be dismissed under the provisions of Order 7 Rule 11 of the CPC and hence, the appellant cannot get relief of arrears of salary.
5 First Appeal No. 08/2007(10) After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it appears that most of issues framed by the trial Court were settled on the basis of admitted position of the case. Only two points out of those issues can be considered in the present appeal. Firstly whether the appellant was not entitled for relief of arrears of salary for want of court fees and secondly whether he was not entitled for arrears of salary on the basis of principle of no work no pay. It was submitted by the learned counsel for the respondent No. 4 that according to the provisions of Section 34 of the Specific Relief Act, no declaratory decree can be given in favour of any litigant, if any further relief is available and same is not sought. It is submitted that since the appellant / plaintiff has valued his relief of arrears of salary but did not pay the court fees, then it shall be presumed that no such consequential relief was sought. Hence, in absence of consequential relief, only declaratory decree could not be given. Such defence was not taken by the respondent No. 4 before the trial Court. However, any legal objection can be raised in the first appeal and, therefore, such argument should be considered in the present appeal. (11) It would be apparent from the pleadings of the appellant that he had prayed for a declaratory decree and consequential relief to get arrears of the salary and, therefore, it cannot be said that he did not seek any further relief. Under these circumstances, the provisions of Section 34 of the Specific Relief Act were not applicable. In the present case, the objection raised by the respondent No. 4 before the trial Court may be considered that without depositing any court fees, whether such relief could be given to the appellant. It is true that the Division Bench of this Court in its opinion in Apparao Sheshrao Deshmukh (supra) confirmed the order passed under Order 7 Rule 11 of the CPC. However, in the present case, the suit filed by the appellant was not dismissed under Order 7 Rule 11 of the CPC and not only the suit but his appeal is also prosecuted till the end and, therefore, at this stage, it would be appropriate for this Court to impose a condition that decree, if given by this Court, will not be 6 First Appeal No. 08/2007 executed, until the court fees is deposited. It is true that the appellant has deposited court fees of Rs.9,000/- on 25.06.2007 but it is not clear that deposited court fees is a court fees consolidated for suit and appeal or it is deposited only for appeal. Hence, this question is decided with the direction that if decree is granted in favour of the appellant then the same shall not be executed unless the appellant deposits the appropriate court fees before the trial Court relating to filing of his suit.
(12) So far as the second point is concerned, the learned counsel for the appellant has vehemently argued that the appellant was relieved mischievously and with malafide intention of the respondent No. 4 and the respondent No. 4 did not permit him to do work on the given post inspite of the fact that an order Ex. P-14 was passed by writ Court in W.P. No. 2014/2003. It is further submitted at the length that copy of transfer order was never served to the appellant before relieving him from the office of District Treasury, Datia and, therefore, relieving of the appellant was not proper. Learned counsel for the appellant has invited attention of this Court to statements of various serving peons like Ramdayal (DW-2) and Shauqat Ali (DW-3) that the transfer order was not served upon the appellant on or before 07.07.2003. It was served upon him on 10.07.2003, whereas by order Ex. P-23 the respondent No. 4 had relived the appellant on 07.07.2003. Learned counsel for the appellant has also challenged the transfer order passed against the appellant against the transfer policy of the State.
(13) It is apparent that the appellant was transferred by the respondent No. 2 and cancellation order was also passed by the respondent No. 2. In the present case, the validity of transfer is not in question. Hence, it is not necessary to decide that he was transferred against the State policy. The appellant has filed I.A. No. 10669/2009, an application under Order 41 Rule 27 of the CPC to get three documents on record. However, such documents are related about the efforts done by the appellant for cancellation of his transfer and that he was transferred against the transfer policy and therefore, for 7 First Appeal No. 08/2007 disposal of the suit as well as the appeal such documents are not required. Under these circumstances, there is no necessity to take such documents on record. Consequently I.A. No. 10669/2009 is hereby dismissed.
(14) In civil cases, it is a settled principle of the Evidence Act that facts admitted need not be proved. It would be apparent that when transfer order was received, the appellant was on training and respondent No. 4 had sent the copy of transfer order of the appellant to his house but his son refused to take copy of that order and told the serving officer that the appellant went to the market. It would be apparent from the order dated 10.07.2003 Ex. P-14 passed by the writ Court that the appellant must have filed the writ petition at least three days prior to 10.07.2003 because of High Court Rules, whereby the order dated 26.06.2003 was referred and copy of that order was filed as Annexure P-1. The appellant who went on training and was relieved on 20.06.2003, had to come back on 07.07.2003 but instead of joining on 07.07.2003, he had sent a leave application Ex.P-25 along with a medical certificate Ex. P-26 on 07.07.2003. It is possible that the appellant was seriously ill, therefore, he could not resume his duties at Datia on 07.07.2003 but thereafter his various representations and applications are considered then it would be apparent that he made the complaint before the higher authorities that he went to the office of District Treasury, Datia on 11.07.2003 but he was not permitted to join. Such overt act of the appellant clearly indicates that he was not sick on 11.07.2003, whereas he obtained a certificate from the doctor that he was required to take medical leave for two weeks from 07.07.2003. Had the appellant reported himself at District Treasury, Datia on 07.07.2003, then certainly he would have been served with the transfer order and he would have been relieved on the same day but since he had the knowledge of the transfer order, he had the copy of the transfer order, which was filed by him before the writ Court and, therefore, he had sent a false application of medical leave on 07.07.2003. Such conduct of the appellant clearly indicates that on completion of training, he did not join at office of 8 First Appeal No. 08/2007 District Treasury, Datia on 07.07.2003 and a false application for medical leave was sent. Hence, under these circumstances, it is admitted fact that the appellant had the copy of the transfer order and he had knowledge of that transfer from the very beginning. When the officer of District Treasury went to serve order at the house of the appellant and his son refused to take such order then it shall be presumed that the order was properly served. When instead of joining at District Treasury, Datia an application of medical leave was received by the respondent No. 4 then certainly he could presume that the appellant had the knowledge of the order and in compliance of that order, he could be relieved. Under these circumstances, it cannot be said that relieving order dated 07.07.2003 was not according to the provisions of law and it was malafide.
(15) The writ Court has given an opportunity to the appellant that if the appellant was not relieved then till disposal of the representation, he should not be relieved. Thereafter the appellant approached the District Treasury, Datia on 11.07.2003 with a joining report. In Document Ex. P-27, he gave a reference of that joining report. As mentioned by the appellant, with his several applications and representations, specifically Ex. P-28, it would be apparent that he did not continue to work at District Treasury, Datia and he reported for joining on 11.07.2003. It is strange that on such refusal, he did not file any contempt petition before the High Court against the respondent No. 4. He was expected to report on his duties on 07.07.2003 and it is found that leave application for medical leave was filed on the basis of incorrect facts. Therefore, he did not appear before office of the District Treasury during the period 07.07.2003 to 11.07.2003 and, therefore, it cannot be said that he continued to do his work during that period. Hence, by considering the overt act of the appellant, if the respondent No. 4 has relieved him on 07.07.2003 then that order cannot be said invalid only because a formality of pasting of the copy of the order was not done on the house of the appellant. He had copy as well as the knowledge of the order prior to 07.07.2003 and, therefore, he had sent an application for grant of medical leave.
9 First Appeal No. 08/2007(16) It would be pertinent to note, as per document Ex.P-13, that on 20.06.2003 the appellant was relieved from the office of District Treasury, Datia and his physical charge was given to someone else at District Treasury, Datia and, therefore, on his transfer, when he did not appear at District Treasury, Datia for joining after the training then the respondent No. 4 could issue a formal order of relieving because no physical charge was required to be taken from the appellant. Hence, the trial Court has rightly found that there was no malafide or illegality in passing the order by the respondent No. 4 so that the appellant was relieved on 07.07.2003. When the appellant was not in a position to get any advantage of the conditional stay order passed by the writ Court then he had two options, one to join at the place to which he was transferred or to take leave for the entire period of his absence. If he chose not to appear before the District Treasury, Gorkhi, Gwalior then he was responsible for his own absence and the trial Court has rightly found that he was not entitled for the salary of the period on which neither he worked at Datia nor at Gwalior and, therefore, on the basis of principle of no work no pay, he was not entitled for any salary of the period for which he remained absent.
(17) It was for the appellant to show that he was relieved by the respondent No. 4 in contravention to the order passed by the writ Court or he was not permitted to do work before his previous office from where he was transferred then he could get the salary for his absence and the principle of no work no pay should have not been applicable in that case. But from the documents filed by the appellant himself, he has accepted this fact that after completion of the training, he had to join at District Treasury, Datia on 07.07.2003 and due to having the knowledge and copy of the transfer order, he did not join on 07.07.2003 and after getting the order of the writ Court, he tried to join on 12.07.2003, whereas it was specifically mentioned in that order that he should not be relieved if he was continued at his work. It would be apparent from the record that the appellant did not appear before the respondent No. 4 to join his duties in the period 07.07.2003 to 10 First Appeal No. 08/2007 11.07.2003 and the leave application was not accepted. On the contrary, he appeared in the office of respondent No. 4 on 12.07.2003 for joining so that he could get the shelter of the order passed by the writ Court but if he had continued with the work then it was not necessary for him to give joining report on 12.07.2003. Hence by the documents of the appellant himself, it is established that he did not resume his duty after training on 07.07.2003 without any reason and, thereafter he could not get the joining on 12.07.2003 because the order of the writ Court did not give any right to the appellant to join at his work after passing of the order of the writ Court and, therefore, for the period in which the appellant remained absent, it was his willful absence and for such absence, he cannot blame the transfer policy or any malafide conduct of the respondent No. 4.
(18) Hence, when it is not proved by the appellant that the respondent No. 4 did not permit him to do his work at District Treasury, Datia then it cannot be said that his none-appearance for a particular period was not due to his own fault but, due to malafide action of the respondent No. 4. On the contrary, it is established that the appellant was adamant not to join at District Treasury Gorkhi, Gwalior. Hence, due to his own willful absence from his work, he could not get any salary for the period of absence on which he remained absent on his own. The trial Court has rightly dismissed the suit filed by the appellant for grant of salary.
(19) On the basis of the aforesaid discussions, the present appeal filed by the appellant is not acceptable. Consequently, it is hereby dismissed. Judgment and decree passed by the trial Court are hereby confirmed. The parties shall bear their own costs. (20) However, a direction be given to the trial Court that the court fees relating to relief of getting salary as sought in the suit filed by the appellant be recovered as per the provisions of law.
(N.K. Gupta) Judge (29/06/2016) Abhi