Allahabad High Court
Arvind Kumar Sonkar vs State Of U.P. & Others on 13 January, 2012
Author: Krishna Murari
Bench: Krishna Murari
HIGH COURT OF JUDICATURE AT ALLAHABAD A F R ''Court No. 01' Civil Misc. Writ Petition No. 64423 of 2008 Arvind Kumar Sonkar Versus State of U. P. and others Along with Civil Misc. Writ Petition No. 64424 of 2008 Sanjay Prasad Vs. State of U. P. and others And Civil Misc. Writ Petition No. 64425 of 2008 Amit Kumar Vs. State of U. P. and others And Civil Misc. Writ Petition No. 64427 of 2008 Narendra Kumar Vs. State of U. P. and others And Civil Misc. Writ Petition No. 64429 of 2008 Raish Ahmad Ansari Vs. State of U. P. and others And Civil Misc. Writ Petition No. 64430 of 2008 Ajay Kumar Vs. State of U. P. and others Hon'ble Krishna Murari, J.
Heard learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents.
Pleadings have been exchanged between the parties and with the consent of the learned counsel for the parties, these petition are being disposed of finally.
Undisputed facts are that the petitioners in this bunch of writ petition were recruited in 2004 as Constable in Provincial Armed Constabulary 20th Battalion PAC, Azamgarh. After completing the training successfully, they were posted at 12th Battalion, Fatehpur. An order dated 25.7.2007 was passed by the Commandant dispensing with the services of the petitioner purported to be passed in exercise of powers conferred by Rule 8 (2) (b) of the U. P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991. The said order was challenged by the petitioners by filing separate writ petitions which were bunched together. Learned Standing Counsel was directed to produce the relevant record on the basis of which the orders under Rule 8 (2) (b) were passed. On record being produced, it was found that the petitioners were medically re-examined on 19.7.2007 and since they were found to be medically unfit for various reasons such as colour blindness, bilateral flat foot etc., their services were dispensed with under Rule 8 (2) (b). The learned single Judge finding that the petitioners were recruited in Police force wherein medical fitness was of paramount consideration, directed constitution of Special Medical Board for fresh medical examination consisting of two Ophthalmologists. The learned single Judge further directed that based on same report, the competent authority will re-consider the matter and take decision. The matter went up in special appeal. Vide judgment and order dated 21.11.2007, the Division Bench of this Court modified the order of the learned single Judge by constituting three members Board and the medical examination to be carried out by the Board in Lucknow. The Division Bench further directed that there will be two separate Boards, one for the purposes of eye test and the other for the physical test. The Boards will be consisting of three Doctors, one from a Government Hospital, one from Sanjay Gandhi Post Graduate Institute, Lucknow and the third from the King George Medical College, Lucknow. In pursuance to the aforesaid direction of the Division Bench, Medical Board was constituted which examined all the petitioners and found them to be medically fit. As a consequence vide order dated 18.1.2008 all the petitioners were reinstated back. Thereafter all the petitioners made application for the arrears of salary and other benefits such as seniority etc. When no decision was taken, they approached this Court by filing separate writ petitions which were disposed of directing the Commandant, 12th Battalion, P. A. C., Fatehpur to consider and decide the representation by means of a reasoned and speaking order. In pursuance to the aforesaid orders passed by this Court, vide order dated 22.8.2008, the claim made by the petitioners for arrears of salary and other consequential benefits has been rejected applying the principle of ''No Work No Pay'.
It is contended by the learned counsel for the petitioners that the services were terminated wrongly and illegally on the basis of an alleged wrong medical report which was subsequently found to be incorrect by the Medical Board constituted under the orders of this Court as such they cannot be faulted with so as to deny the wages of the said period as well as other consequential benefits.
In reply, learned Standing Counsel referring to the averments made in the counter affidavit has submitted that since the earlier termination was not recalled or set aside rather after their medical re-examination since they were found fit and have been re-employed as such they are not entitled to any salary or other benefits for the said period.
I have considered the arguments advanced by the learned counsel for the parties and perused the record.
The petitioners must have been given appointment after they were found to be medically fit. However, in pursuance of some letter of the Director General of Police fresh medical examination was conducted in which all the petitioners were declared to be medically unift and the same was found to be incorrect by the Medical Board constituted under the direction of this Court. The shortcomings on which they were found medically fit such as colour vision and blindness, bilateral flat foot etc. cannot be said to be temporary in nature so as the same was not found in the subsequent medical examination. The same are permanent in nature. It is, thus, clear that the services of the petitioners were dispensed with wrongly and illegally on incorrect report which certified them to be medically unfit. Since the petitioners are not at fault for disengagement, they were clearly entitled for payment of arrears of salary for the said period as well as other consequential benefits and there is no justification to deny the said benefits.
In the case of Registrar (Administration), High Court of Orissa, Cuttack Vs. Sisir Kanta Satapathy (dead) by L. Rs. and another, AIR 1999, SC 3265, the Apex Court has held that if an employee was willing to work but arbitrarily deprived from discharging his duties, should be paid his wages. The ratio of the aforesaid judgment is squarely applicable in the facts of the present case. All the petitioners were duly discharging their duties. There is no reason to believe that they were not willing to work. It is only on account of a medical report, which was subsequently found to be wrong and incorrect for which the respondents have no justification, there is no hesitation in holding that the petitioners were deprived from working arbitrarily.
In view of the above facts and circumstances, all the writ petitions succeed and stand allowed. The order dated 22.08.2008 passed by the Commandant 12th Battalion P. A. C., Fatehpur is quashed. A further writ of mandamus is issued commanding the respondents to treat the petitioner in continuous service with effect from 25.7.2007 to 18.1.2008 and also pay them the arrears of salary for the said period with all other consequential benefits.
13.01.2012 Dcs.