Punjab-Haryana High Court
Bala Ram Son Of Shri Simru Ram vs Uttar Haryana Bijli Vitran Nigam on 29 February, 2012
Author: K. Kannan
Bench: K. Kannan
CWP No.14645 of 2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.14645 of 2010 (O&M)
Date of decision:29.2.2012
Bala Ram son of Shri Simru Ram, resident of Village Nizampur, District
Panipat (Haryana)
....Petitioner
versus
Uttar Haryana Bijli Vitran Nigam, through its Managing Director, Vidyut
Sadan, Plot No.16, Sector-6, Panchkula (Haryana), and others.
....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Present: Mr. S.K. Sud, Advocate, for the petitioner.
Mr. Birender Singh Rana, Advocate, for the respondents.
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1. Whether reporters of local papers may be allowed to
see the judgment ? Yes
2. To be referred to the reporters or not ? Yes
3. Whether the judgment should be reported in
the digest ? Yes
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K.Kannan, J. (Oral)
1. The issue involved in the case is whether it was permissible for an employer to claim wages for the period when he could not work on account of the fact that he had suffered a criminal court conviction which he had suffered under the Prevention of Corruption Act, but was later set aside in appeal by the High Court and when he was allowed to rejoin duty with continuity of service.
2. Through the impugned order the petitioner was denied the wages on the ground of 'no work, no pay' principle, and the learned counsel for the petitioner would contend that 'no work, no pay' principle could be applied in all cases where the person was abstaining from CWP No.14645 of 2010 (O&M) 2 work and not in a case where he was prevented from work by the Management unjustly.
3. In State of Haryana Versus Bani Singh Yadav-2005(1) RSJ 606 cited by the learned counsel for the petitioner, the Division Bench of this Court was considering a case of employer in the army, who had denied to him the promotion when he was fully entitled to and the Court found that the Government could not take advantage of its own wrong by first not giving to him the promotion and later when he was found entitled, to deny to him the promotional scale by the fact that he did not work in the promotion post. In K.C. Rana Versus State of Haryana-2003(3) RSJ 200, the Division Bench was considering the case of exoneration of charges by an Enquiry Officer after discharge by a Criminal Court that there existed no case. This was an instance where there was no prejudice against the employee but when he was prevented unjustly from occupying the post. The above two cases are wholly different from a situation where the employee lands on a conviction after a full-fledged trial but the judgment is set aside in appeal by the higher court. It is not as if the employer had a choice or it could be stated that the employee was unjustly denied the work.
4. The issue obtained a different treatment by the Hon'ble Supreme Court in Ranchhodji Chaturji Thakore Versus The Superintending Engineer, Gujarat Electricity Board-1997 (1) SCT 824, that considered the case of a person, who had been involved in an offence under Section 302/34 IPC, who was convicted originally but later acquitted. The Court found that the petitioner in such a case must be taken as employee who had rendered himself disabled from rendering service and denied to him his wages during the period when he was not working. In Basanti Prasad Versus The Chairman, Bihar CWP No.14645 of 2010 (O&M) 3 School Examination Board and others-2009(3) SCT 761, on termination of services, retiral dues had been denied. The services had been terminated on account of conviction in a criminal court case. The conviction was set aside in appeal. The Court found that during the currency of conviction, the employee could not be given any employment and, therefore, denial of benefits during the period when he did not work was justification enough for not paying the salary. These two decisions of the Hon'ble Supreme Court squarely answer the question and mark exception to the situations dealt with in the proceeding para.
5. There is a second prayer in the writ petition namely that the petitioner was reverted to a lower post from Junior Engineer to Assistant Foreman which was a major penalty and no notice or any form of enquiry had been made before ordering reversion. This order of reversion dated 30.12.1994 is alleged to have been not communicated to the petitioner at all and he had come to know about the same only when the order was passed on 17.6.2010 denying to him the back wages. At a previous hearing of 19.1.2012, I had directed to the learned counsel appearing for the respondent to take instructions and inform the Court about whether any notice had been given before the reversion order. At a further hearing he had again sought for an adjournment and today learned counsel for the respondent is unable to show any proof for the fact that the order of reversion passed on 21.3.1995 was ever served on the petitioner or any form of notice had been given earlier before taking such a decision. The order which was not communicated is not an order which the petitioner could have challenged earlier. Therefore, the plea of delay and laches in defence cannot be accepted. The order of reversion is quashed.
CWP No.14645 of 2010 (O&M) 4
6. The petitioner's prayer for grant of back wages will be denied for the reasons referred to above and the petitioner must be taken as having been continued in the post as a Junior Engineer and his pay and retiral benefits shall be worked out on that basis and the amount be released to the petitioner with interest at the rate of 6% per annum within a period of eight weeks from the date of receipt of copy of the order.
7. The writ petition is disposed of accordingly.
(K. KANNAN) JUDGE 29.2.2012 sanjeev/archana