Madhya Pradesh High Court
Sadhuram Shukla vs The State Of Madhya Pradesh on 16 August, 2018
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No.&Parties Name W.P.No. 3047 of 2012.
Sadhuram Shukla
Vs.
State of M.P. & Ors.
Date of Judgment 16/08/18
Bench Constituted Justice Sujoy Paul
Judgment delivered by Justice Sujoy Paul
Whether approved for reporting No.
Name of counsels for parties Petitioner : Ms. Malti Dadariya, Adv.
Respondent No.1 to5: Shri Naveen
Dubey, GA.
Respondents No.6 and 7 : Smt. Madhvi Chaturvedi, Adv.
Law laid down -
Significant paragraph numbers -
(ORDER)
(16.08.2018)
In this petition filed under Article 226 of the Constitution, petitioner has prayed for following reliefs :-
"1. Hon'ble court may kindly be pleased to issue a writ in the nature of mandamus directing the respondents to allow the petitioner to join and work in Block Development Office, Jaisinhnagar from where he was transferred to Tribal Department by order dated 10.07.2007 as the Collector has declared this order as void.
2. Hon'ble Court may further be pleased to direct the respondents to make the payment of salary of the petitioner with effect from 01.08.2007 till his joining till date alongwith interest at the reasonable rate. Regular payment of salary every month may also be directed to be made.
3. Cost of the litigation may kindly be awarded.
4. Any other writ/order/ direction which this Hon'ble court deems fit in the facts and circumstances of the case may kindly be issued.
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5. The Honb'le court may kindly be pleased to set aside and quash the impugned order dated 06.01.2016 Annex.P/27, directing the respondents to make the payment of salary of the petitioner w.e.f 24.07.2007 to 4.03.2012, treating the period as duty period, paying its arrears along with 10% interest w.e.f the date when it was due till its actual payment. The unpaid salary of further period w.e.f from March, 2013 to June, 2015 may also be directed to be paid, paying its arrears alongwith 10% interest w.e.f the date , the salary was due till its actual payment."
2. Learned counsel for the petitioner submits that petitioner was appointed as Chowkidar in Panchayat and Rural Development Department by order dated 1.08.1990 (Annex.P/1). The tribal department by order dated 23.3.1993 (Annex P/2) opined that petitioner is not the employee of tribal department and, therefore, payment of his salary may be made by the Panchayat department. The same stand is taken by the tribal department in order dated 28.2.2003 (Annex.P/5). In the communication dated 26.6.2002,13.2.2004 and 3.08.2005 (Annx.P/3, P/6 and P/7), it was decided by the department that till final decision is taken by the government regarding posting of the petitioner, the payment of salary may be made by the Panchayat and Rural Development Department. The tribal department contended that the post of Chowkidar is not a sanctioned post in the tribal department (Annex.P/8). Thereafter by order dated 10.07.2007, the petitioner was transferred from Panchayat and Rural Development Department to Tribal Girls Hostel, Jaisinhnagar maintained by tribal welfare department. The petitioner filed W.P.No.10624/07 claiming salary w.e.f March, 2005 to July, 2007. The writ petition was decided on 20.4.2011 (Annex.P/19) and salary was directed to be paid.
3. Ms. Malti Dadariya, learned counsel for the petitioner submits that in obedience of the said court order, the payment was made by Annex.R/6-2 filed alongwith the return. It is urged that the petitioner was transferred without payment of two years salary and his transfer to tribal department was bad in law. Since petitioner being a low paid employee had no option but to
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comply with the transfer order. He implemented it by submitting the joining on 19.11.2007 (Annex.P/9) in tribal department. Attention of this court is drawn on the acknowledgment (Annex.P/9). Learned counsel for the petitioner laid emphasis on the document dated 19.11.2007 wherein on the one hand it is mentioned that petitioner was relieved on 23.07.2007 but did not join at the new establishment and on the other hand in the same order, four documents are enclosed which includes his joining letter and last pay certificate. It is pointed out that the stand taken by the respondent is mutually inconsistent/ contradictory in nature. The documents i.e joining letter itself shows that petitioner did submit his joining at the new establishment.
4. Learned counsel for the petitioner submits that petitioner attended his office daily but he was not allowed to work by the said office on the pretext that he has already been relieved. The petitioner pleaded in this regard in para-2 of the rejoinder. In para-5.5 of the petition, he pleaded that he was not allowed to join.
5. Reliance is placed on Annex.P/14 dated 12.10.2010 wherein the Assistant Commissioner admitted that petitioner submitted his joining on 1.07.2010. During the course of arguments, reliance is also placed on Annex.P/13 dated 1.07.2010 and document dated 14.9.2010 (Annex.P/18 and P/20) to show that there exist acknowledgment of the joining letter of the petitioner. The petitioner was all along ready to perform his duties but he was not permitted to join and, therefore, the principle of "No Work No Pay"
cannot be applied. Learned counsel for the petitioner also relied on the order of Collector Annex.P/24 wherein it is declared that the transfer and relieving order are void ab initio. The petitioner placed reliance on various letters dated 24.01.2012, 16.12.2011, 24.1.2012, 03.05.2012, 12.06.2012, 26.07.2012, 31.08.2012, 26.09.2012 and 08.10.2012 filed as Annex. P/26, P/28, P/29,P/30,P/31, P/32,P/33, P/34 and P/35 to contend that all these documents contain acknowledgment. Despite that, petitioner's joining was not accepted.
6. Since, petitioner's prayer for grant of salary and joining could not fetch any result, the petitioner was constraint to file this writ petition wherein a detailed order dated 27.02.2012 was passed. In obedience of this order,
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although petitioner was allowed to join on 05.03.2012. The back wages were not paid to him. Against non-payment of salary, a Contempt Petition No.1960/12 is pending. Learned counsel for the petitioner submits that the order dated 06.01.2016 (Annex.P/27) was served on the petitioner for the first time during the present proceedings which is challenged by the petitioner by way of amendment. Since petitioner wanted to perform his duties and was prevented to do so by the respondents, the principle of "No Work No Pay"
cannot be pressed into service. Lastly, it is submitted that against the letter dated 13.3.2013 Annexure P/38, petitioner filed his detailed reply Annexure P/39. The respondents have not paid him salary for the subsequent period also i.e. from March, 2013 to June, 2015. Thus, there are two spells for which salary is claimed viz. (i) 24.7.2007 to 4.3.2012 and (ii) March, 2013 to June, 2015. By placing reliance on 1999 SCC (L&S) 281 (Rabindra Kumar Buttik vs. State of Orissa), it is argued that when there is a wrongful refusal to join duties, the employee is entitled to get arrears of salary. Reference is made to 1998 SCC (L&S) 1251 (J.N. Shrivastava vs. Union of India) to contend that if an employee is willing to work but was not allowed to perform his duties, he is entitled to get the salary.
7. Shri Naveen Dubey and Ms. Chaturvedi contended that petitioner has actually not performed his duties. There is no material on record to show that petitioner has actually performed his duties. On a specific query made in letter dated 13.3.2013 Annexure P/38, the petitioner in his reply has not given any proof of his performance of his duties. Since petitioner has not worked, he is not entitled to get wages for the said period.
8. In rejoinder submission, Ms. Dadariya contended that petitioner being a low paid Class IV employee does not have any record about his working. The respondents are the custodian of records and; therefore, they should have examined from their office about the working of the petitioner. If petitioner was not permitted to perform his duties, how can he place proof of his performance or working.
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9. No other point is pressed by the learned counsel for the parties.
10. I have heard the learned counsel for the parties and perused the record.
11. The order dated 28.2.2003 Annexure P/5 and certain other orders of this nature show that the Tribal Welfare Department had taken a stand that post of Chowkidar is not sanctioned in their office. However, Zila Panchayat by communication dated 3.8.2005 Anneuxre P/7 made it clear that till a decision is taken regarding drawl of salary of Chowkidar and Sweepers, payment be regularly made from the Janpad Panchayat fund. Thereafter, by order dated 10.7.2007 Annexure P/8, the petitioner was transferred from Block Office, Jaisinghnagar to Tribal Girls Hostel maintained by Tribal Department. The petitioner's stand is that he submitted his joining on 19.11.2007 Annexure P/9. This fact was seriously disputed by the respondents. However, I do not see any merit in the stand taken by the respondents that petitioner did not submit his joining. The said stand on the face of will be proved to be incorrect if Annexure P/10 dated 19.11.2007 is carefully perused. I find substantial force in the argument of Ms. Dadariya that the respondents have taken diametrically opposite stand in the same letter dated 19.11.2007. In para 2, it is mentioned that petitioner has not submitted his joining at new establishment whereas as an enclosure to this document, petitioner's joining letter is annexed. Thus, the finding that petitioner did not join at new establishment is factually incorrect and runs contrary to record. Thereafter, petitioner has filed a series of representations for permitting him to join and perform his duties. After approaching the authorities from pillar to post, the learned Collector passed order dated 1.12.2011 Annexure P/24. The relevant portion reads as under:
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"mijksDr rF;ksa ls Li"V gS fd Jh lk/kqjke 'kqDyk pkSdhnkj ewy :i ls xzkeh.k fodkl foHkkx ds deZpkjh gSaA vkfne tkfr dY;k.k foHkkx esa pkSdhnkj dk in Lohd`r ugha gS] ys[kk vf/kdkjh dk;kZy;
vk;qDr] vkfnoklh fodkl e0iz0 Hkksiky ds i= dzekad@ctV@mi;kstuk@2003@3367@fnukad 28-02-2003 dh Nk;k izfr ifjf'"V&6 layXu gSA bl lEcU/k esa dk;kZy;hu i= dzekad@lgk0vk0@LFkk0lk0@6950@fn0 23-03-93 }kjk fodkl[k.M vf/kdkjh t;flaguxj dks fy[kk x;k Fkk fd Jh lk/kqjke 'kqDyk bl foHkkx ds deZpkjh ugha gS] ewy inLFkkiuk LFkku ls gh osru vkfn dh dk;Zokgh djsaA ¼Nk;k izfr layXu gS ifjf'k"V&7½ vkfne tkfr dY;k.k foHkkx ds vkns'k dzekad@LFkk0lk0@845@07@4136 fnukad 10-07-2007 ¼Nk;k izfr layXu gS ifjf'k"V&8½ }kjk fd;k x;k LFkkukaUrj.k ,oa fodkl [k.M vf/kdkjh t;flaguxj ds vkns'k i`0dz0@fc0[k0@LFkk0@07@1785 fnukad 23-07-2008 ¼Nk;k izfr layXu gS ifjf'k"V&9½ }kjk dk;ZeqfDr xyr rF; ij vk/kkfjr gksus ls izHkko 'kwU; gSA xzkeh.k fodkl foHkkx ds deZpkjh dk LFkkukarj.k vkfne tkfr foHkkx }kjk ugha dh tk ldrh gSA vr% Jh 'kqDyk dks ns; yafcr osru Hkqxrku dj 5 fnu esa voxr djk;sa rkfd ekuuh; mPp U;k;ky; dks voekuuk izdj.k esa oknksRrj ds ek/;e ls voxr djk;k tk ldsA "
(Emphasis supplied) A plain reading of this order shows that the petitioner's transfer order dated 23.7.2007 was treated as void ab initio. The petitioner was held to be employee of Rural Development Department. The learned Collector by taking into account the order of this court dated 20.4.2011 directed the authorities to make the payment of wages to the petitioner, yet the said payment was not made. Thereafter, another struggle of petitioner started. He on the strength of learned Collector's order dated 1.12.2011, preferred a series of representations i.e. dated 24.1.2012 Annexure P/25 and Annexure P/26 but he was not permitted to perform his duties. It is not in dispute between the parties that petitioner was permitted to join back only in obedience of the order passed by this court dated 27.2.2012. This order reads as under:
"Ku. Malti Dadariya, learned counsel for the petitioner.
Issue notice to the respondents on payment of P.F. within one week, returnable in four weeks.
In the meanwhile, keeping in view the directions issued by the Collector, Shahdol as contained in Annexure P-24 dated 1.12.2011, Respondent Nos.6 & 7 are directed to permit the
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petitioner to join duties forthwith and submit a report to this court by the next date of listing. They are also directed to settle the claim of the petitioner for payment of salary as ordered by the Collector, Shahdol and submit report to this Court."
(Emphasis supplied) The order aforesaid is in two parts. Firstly, the respondents were directed to permit the petitioner to join the duties forthwith and submit a report before this court. (ii) the respondents were directed to settle the claim of the petitioner for payment of salary. Undisputedly, petitioner was permitted to join but his claims have not been settled. The respondents passed the order dated 6.1.2016 and opined that since petitioner has not worked from 24.7.2007 to 4.3.2012 and he has not filed any representation in this regard, the total period of 1685 days shall be treated as "no work no pay".
12. In the aforesaid factual backdrop, it is clear that petitioner left no stone unturned to join the duties at the transferred place, his series of representations leave no room for any doubt that he was keen and willing to join duties and perform his work. The document dated 19.11.2007 turns the table against the respondents and makes it clear that petitioner submitted his joining. The order of learned Collector shows that petitioner's transfer itself was void ab initio. In this view of the matter, principle of 'no work no pay' cannot be pressed into service. The petitioner was willing to perform his duties but was not allowed to do so for the reasons solely attributable to the respondents. Thus, on the basis of judgment of Supreme Court in the case of Rabindra Buttik(Supra) and J.N. Shrivastava(Supra), I am constrained to hold that petitioner is entitled to get salary for the said period. In view of aforesaid analysis, I have no scintilla of doubt that respondents have erroneously applied the principle of 'no work no pay' for the period in question. Resultantly, the impugned order dated 6.1.2016 Annexure P/27 is set aside.
13. Mahatma Gandhi once said that the nature of civilized society or quality of administration can be judged by seeing as to how the society and administration behaves with a downtrodden person. In the instant
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case, those who were in the helm of affairs were not sensitive enough to redress the grievance of a low paid employee. They turned blind eye on his grievance and did not exercise their power to ensure that a low paid employee is permitted to perform his duties and get salary out of that work so that he can keep his body and soul together in the present days of price hike. Swami Vivekanand said-"pray for power to serve, all other prayers are selfish."
14. It is a sorry state of affairs that a low paid employee/chowkidar was running from pillar to post but no authority has paid heed to his grievance and redressed his grievance. It is only because of order of this court dated 27.2.2012, he was permitted to join. Despite clear fact that he submitted his joining and he was not permitted to perform his duties, he was deprived of the arrears of salary. Despite declaring the transfer order itself as void ab initio, petitioner was not permitted to join back. Thus, in the considered opinion of this court, the action of respondents is arbitrary, capricious and unconstitutional in nature. Resultantly, the petitioner is entitled to get complete salary from 24.7.2007 to 4.3.2012.
15. So far second claim of salary from March, 2013 to June, 2015 is concerned, it is apposite to note that this claim is added by way of amending the petition. Despite query from the Bench, learned counsel for the petitioner is unable to show any pleading in the body of petition wherein petitioner has either pleaded that he has performed his duties from March, 2013 to June, 2015 and has not been paid salary or he submitted his joining and yet respondents have not accepted the same. In absence of any averments of this nature in the body of petition, merely claiming a relief in the relief clause will not serve the purpose. Putting it differently, the relief clause is the outcome of the entire factual details mentioned in the body of petition. Facts and circumstances need to be pleaded with accuracy and precision in the body of petition and on the strength of these pleadings, reliefs can be claimed. If in the pleadings, no factual background is mentioned, relief claimed alone cannot serve any purpose. However, in the interest of justice, I deem it proper to permit
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the petitioner to file a detailed representation claiming salary for this period and submit it before respondents No.6 & 7. In that event, it will be the duty of respondents No.6 & 7 to consider and decide the said representation by a reasoned order in accordance with law. If said authorities come to the conclusion that petitioner is entitled for any claim between March, 2013 to June, 2015, they shall pass on the said benefit to the petitioner within 60 days. If they decide otherwise, a speaking order be passed and communicated to the petitioner.
16. So far the payment of salary from 24.7.2007 to 4.3.2012 is concerned, respondents shall calculate the said amount and pay the arrears to the petitioner within 60 days from the date of communication of this order, failing which it will carry 12% interest till the date of actual payment.
17. Petition is allowed to the extent indicated above.
(Sujoy Paul) Judge MKL/ys Digitally signed by MANOJ KUMAR LALWANI Date: 2018.08.18 11:59:50 +05'30' -:- 10 -:- W.P.No.3047/12.