Orissa High Court
Kumuda Chandra Pradhan vs Berhampur Municipal Corporation on 19 May, 2017
THE HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.9244 of 2009
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Kumuda Chandra Pradhan ... Petitioner
-Versus-
Berhampur Municipal Corporation ... Opposite Party
For Petitioner : M/s. A.K. Baral & K. Ray
For Opposite Party : M/s. D.K. Panda, G. Sinha &
A. Mishra
PRESENT:
THE HON'BLE DR. JUSTICE D.P. CHOUDHURY
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Date of hearing: 25.04.2017 Date of Judgment: 19.05.2017
___________________________________________________
Dr. D.P. Choudhury, J. Challenge has been made to the inaction of the
opposite party for not paying the arrear salary of the petitioner.
FACTS
2. The unnecessary details of the factual matrix leading
to this writ petition is that the petitioner was working as a Fees
Supervisor under the erstwhile Berhampur Municipality presently
Berhampur Municipal Corporation since 1.3.2006 on contract
basis on payment of consolidated pay of Rs.4,000/- per month.
It is alleged inter alia that on 23.3.2006 the State Government in
Housing and Urban Development Department relying upon the
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G.A. Department resolution dated 30.6.1999 directed the
Berhampur Municipality to cancel the engagement of the
petitioner as Fees Supervisor on contractual basis. The petitioner
assailing the said order of the Government approached this
Court in W.P.(C) No.4677 of 2006 whereunder the Court was
pleased to issue notice and maintained status quo in respect of
the appointment and posting of the petitioner. The Court also
further held in that writ petition that consolidated salary of
Rs.4,000/- per month would be continued to be paid by the
opposite party but for no reason the same was not paid. Since
the arrear salary was not paid, the petitioner had to file another
writ application bearing W.P.(C) No.15008 of 2006 for payment
of the arrear salary of the petitioner. That writ petition was
disposed of directing the opposite party to consider the case of
the petitioner and if it is found that the petitioner is discharging
the duties regularly and the amount legally payable to him shall
be disbursed within a period of three months from the date of
communication of the order.
3. Be it stated that on 21.11.2008 the said order was
produced by the petitioner before the opposite party but the
opposite party vide order dated 17.3.2009 informed that the
petitioner had not discharged the duties for a single day for
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which he is not entitled to remuneration. It is alleged, inter alia,
that the reasons of the opposite party to opine that the
petitioner was not discharging the duties is out of record and the
interim order of this Court would go to show that the petitioner
was all along on duty. In this regard, it is submitted that the
petitioner received the monthly calculated salary of Rs.52,000/-
for the period from March 2006 to March 2007. Petitioner,
therefore, challenged the opposite party for its observance that
the petitioner has not worked at all. Hence, the petitioner filed
the present writ petition to quash the order dated 17.3.2009
passed by the opposite party under which the opposite party has
rejected the claim of the petitioner in regard to payment of
salary with the consequent prayer for payment of arrear salary
and issue an order of appointment.
4. Per contra, the opposite party filed counter refuting
the allegation made by the petitioner. It is the case of the
opposite party that although the order was passed by the
opposite party to appoint him as Fees Supervisor but the
petitioner never joined after retirement and has not discharged
his duties. As the State Government in Housing and Urban
Development Department communicated the letter of the
Government about cancellation of the engagement of the
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petitioner, the opposite party did not pass any order engaging
the petitioner. Even if the petitioner was not engaged but in view
of the order of this Court in W.P. (C) No.4677 of 2006 the salary
at the consolidated rate was paid to the petitioner as the interim
order was extended from time to time but on 16.9.2009 the
petitioner approached the opposite party to extend the
continuance of the post.
5. Be it stated that when in W.P.(C) No.15008 of 2008
the Court directed the opposite party to consider his
representation dated 6.10.2008 and if the petitioner was found
to have discharged the duties regularly he may be paid his
arrear salary. On the other hand, after verification the office of
the opposite party did not find out the representation dated
6.10.2008filed by the petitioner and the petitioner is found to have not discharged his duties as Fees Supervisor. So, the opposite party was right in action for not paying any salary or remuneration to the petitioner.
6. It is reiterated that the Municipal Council allowed the petitioner to be engaged on consolidated monthly remuneration of Rs.4,000/- per month after his superannuation subject to approval of the Government. As the Government did not approve the same and directed to cancel the order of engagement, the 5 question of the petitioner discharging the duty after retirement is out of bound. Since he has not discharged any duty as Fees Supervisor, he is not entitled to any arrear salary and rightly the order has been passed on 17.3.2009 by the opposite party. SUBMISSIONS
7. Learned counsel for the petitioner submitted that he has filed the rejoinder to the counter. According to him the petitioner was discharging his duty regularly as Fees Supervisor by putting signatures in the attendance register available with the Dealing Assistant Ramesh Chandra Sahoo. He further submitted that if there is any Government order to disengage the petitioner, yet no order of disengagement was passed confirming the plea of the opposite party. When there is order passed by this Court protecting the service condition of the petitioner and there is no disengagement order passed by the opposite party, the petitioner was found to have discharged his duty and accordingly he should be paid the arrear salary or remuneration.
8. Learned counsel for the opposite party submitted that after receiving the order from the State Government to cancel the engagement of the petitioner, the petitioner challenged the said letter of the Government in W.P.(C) No.4677 6 of 2006 which confirms that the petitioner has challenged the order of disengagement. According to him the Dealing Assistant Ramesh Chandra Sahoo had not prepared any duty certificate showing engagement of the petitioner as Fees Supervisor and no document has been filed as a proof of attending the duty as Fees Supervisor. He also challenged the documents purportedly prepared by Ramesh Chandra Sahoo vide Annexure-9 series as said Ramesh Chandra Sahoo has expired long back and moreover, no representation of the petitioner was available to show the bonafideness of the plea taken by the petitioner. According to him, since after the order of the State Government received about disengagement of the petitioner, the petitioner was not engaged and he has not performed his duty. When he has not performed his duty, he is not entitled to the arrear salary for the simple reason that this Court in W.P.(C) No.15008 of 2008 has directed to pay the salary if it is found that he has actually discharged the duty. As such, the present writ petition should be dismissed.
9. Main point for consideration:-
(i) Whether the petitioner has discharged the duty from 1.3.2006 to 30.9.2008 and is entitled to arrear salary ?7
DISCUSSION
10. It is admitted fact that the petitioner was engaged as Fees Supervisor by the opposite party on contract basis on payment of consolidated amount of Rs.4,000/- per month. It is also admitted fact that the State Government in Housing and Urban Development Department directed the opposite party not to engage the petitioner. It is not in dispute that the petitioner has filed W.P.(C) Nos.4677 of 2006 and 15008 of 2008 before this Court. It is admitted fact that in the latter writ petition the order was passed to pay the arrear salary if it is found that the petitioner has actually discharged the duty.
11. Annexure-1 shows that on 21.2.2006 the Council of the Opposite party-Municipality passed order to engage the petitioner as Fee Collection Supervisor after retirement on 28.2.2006 with effect from 1.3.2006 for six months. It shows that this engagement would be subject to the order of the State Government. Annexure-2 shows that petitioner was issued a letter of engagement with effect from 1.3.2006 for a period of six months on payment of consolidated amount of Rs.4,000/- per month. Annexure-3 shows that on 23.3.2006 the Administrative Department issued letter to opposite party to cancel the engagement if it has been done already because same 8 violates the G.A. Department resolution No.19637/Gen. dated 30.6.1999. Annexure-4 shows that on 3.4.2006 this Court passed order to maintain status quo in respect of appointment and posting of the petitioner as per Annexure-5 to continue but the salary at consolidated rate shall be paid by the opposite party. Thus, it shows that the letter dated 23.3.2006 of the State Government was not acted upon in view of the order of this Court.
12. The order dated 3.4.2006 shows that such interim order was passed till disposal of the writ petition. From the additional counter of the opposite party it is revealed that such writ petition has been withdrawn by the petitioner but it is not mentioned when such writ petition was withdrawn.
13. Annexure-7 shows that due to non-payment of the arrear salary the petitioner filed W.P.(C) No.15008 of 2008 and in that case on 20.10.2008 this Court passed the following order:
"20.10.2008 The petitioner is working as Fees Supervisor in Berhampur Municipality in the district of Ganjam. According to the petitioner though he was duly selected and engaged, unfortunately his remuneration/salary @ Rs.4,000/- per month for the period from March, 2006 is not being paid. In course of hearing however, it appears, that the petitioner has already filed a representation before the Executive Officer, Berhampur Municipality on 06.10.2008. Non-payment of salary/remuneration to a person 9 who is discharging his duties regularly definitely causes prejudice.
2. After hearing learned counsel for the parties, this Court disposes of the Writ Petition directing the Executive Officer, Berhampur Municipality - opposite party to consider the application filed by the petitioner on 06.10.2008 and if it is found that the petitioner is discharging his duties regularly the amounts legally payable to him shall be disbursed as expeditiously as possible, preferably within a period of three months from the date of communication of this order.
The order be communicated to opposite party at the cost of the petitioner.
Urgent certified copy of this order be granted on proper application.
Sd/- A.S. Naidu, J."
In pursuance of the above order, the opposite party informed the petitioner that the letter dated 6.10.2008 is not available in file and the Dealing Assistant Ramesh Chandra Sahoo has also reported that the petitioner has not discharged his duty as Fees Supervisor as the petitioner has not signed in any register as proof of attending the duty. Opposite party has not produced any such document stated to have been written by the Dealing Assistant Ramesh Chandra Sahoo. On the other hand, Annexure-9 series has been produced by the petitioner to show that said Ramesh Chandra Sahoo has certified about the performance of duty by the petitioner for the period from 1.3.2006 to 31.7.2006, 1.8.2006 to 31.12.2006, 1.1.2007 to 10 31.5.2007, 1.6.2007 to 30.11.2007, 1.12.2007 to 30.4.2008 and from 1.5.2008 to 30.9.2008 and each absentee statement has been countersigned by the Chairperson of the Berhampur Municipality.
14. It is revealed from the counter and additional counter of the opposite party that the Chairperson, Berhampur Municipality does not countersign any absentee statement of the employees and the employees are required to sign the attendance register while attending duty as Fees Supervisor. But Annexure-9 series do not disclose about the signature of the present petitioner nor are same the copies of the attendance register. Rather, he produced the Death Certificate of Ramesh Chandra Sahoo vide Annexure-A/1 which has been issued by the Birth and Death Registrar on 20.8.2009. It appears from that certificate that Ramesh Chandra Sahoo expired on 17.7.2009.
15. On 2.3.2017 an order was passed directing the opposite party to file additional affidavit about Annexure-9 series filed by the petitioner. On 9.4.2017 the opposite party filed the additional counter affidavit wherein at para-3 the opposite party has stated in the following:-
"3. That with regard to the averments made in para 3.1 and 3.2 of the rejoinder are false, fabricated and concocted. It is humbly submitted that Ramesh Chandra Sahoo, Dealing Asst. had 11 not prepared the Duty Certificate showing engagement of the petitioner as Field Supervisor as he had reported in Annexure-8 that no record regarding discharge of duty of the petitioner is available in the office. Moreover, petitioner has not signed any register as proof of attending the duty as Fees Supervisor nor as he submitted any report with regard to collection of fees. It is humbly submitted that said Ramesh Chandra Sahoo had already expired since long and after death of Ramesh Chandra Sahoo Annexure-9 of the rejoinder had been prepared to suit the case purpose only for claiming back wages which is in after thought and the Hon'ble Court should not interfere in the matter. Further with regard to absentee statement for performance of duty, chairperson of the Municipal Corporation is not competent person to the counter signing authority. The competent person of the counter signing authority is the administrative authority of the concerned section/establishment. The other facts stated in the rejoinder affidavit are misconceived and afterthought."
From the aforesaid additional counter affidavit, the opposite party has neither denied about the signature of Ramesh Chandra Sahoo nor challenged the same as false or fabricated. Simply it has been said that since this document is afterthought, the Court should not interfere in the matter. But at the same time it is revealed from above submission of the opposite party that the absentee statement for performance of duty is prepared. It is not clear from the above additional counter as to who is the competent person to countersign the absentee statement if the Chairperson of the Municipal Corporation is not 12 competent. It is also revealed from the aforesaid statement of the opposite party that vide Annexure-8 Ramesh Chandra Sahoo has reported that such representation of the petitioner dated 6.10.2008 is not available but no such report of Ramesh Chandra Sahoo is produced. When admittedly Ramesh Chandra Sahoo expired in 2009 and all Annexure-9 series pertain to the period from 1.3.2006 to 30.9.2008 and the signatures are not denied, it cannot be said that they are afterthought. Moreover, when the opposite party does not disprove the counter signature by the Chairperson of the Berhampur Municipality, the document vide Annexure-9 series cannot be denied. When Annexure-8 is not supported by any document of Ramesh Chandra Sahoo, same cannot be accepted to counter Annexure-9 series. When Ramesh Chandra Sahoo is no more, the documents prepared by him vide Annexure-9 series have got relevant evidentiary value.
16. When the petitioner has been able to establish his discharging of duty by virtue of Annexure-9 series in pursuance of the order passed on 3.4.2006 in W.P.(C) No.4677 of 2006 and W.P.(C) No.15008 of 2008 and opposite party has failed to disprove the same, and further failed to prove its own case, it must be observed that the petitioner has discharged his duty from 1.3.2006 till 30.9.2008. The point is answered accordingly. 13 CONCLUSION
17. In view of the aforesaid analysis, when this Court is of the opinion that the petitioner has discharged the duties from 1.3.2006 to 30.9.2008, he should be paid the arrear salary for that period at the rate of Rs.4,000/- per month duly fixed by the opposite party. The order of the Government will not stand as a bar because of the order of this Court dated 20.10.2008 passed in W.P.(C) No.15008 of 2008 directing the opposite party for payment of such salary if the petitioner is found to have discharged the duties regularly. Hence, the writ petition is disposed of with a direction to the opposite party to compute the salary at consolidated rate of Rs.4,000/- per month for the above period and pay the same to the petitioner within a period of three months from the date of this order.
The writ petition is disposed of accordingly.
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Dr. D.P. Choudhury, J.
ORISSA HIGH COURT: CUTTACK Dated the 19th May, 2017/Kar 14