Himachal Pradesh High Court
Balak Ram vs Secretary (Forests) To The Government ... on 17 September, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWPOA No. 5637 of 2019
Reserved on: September 15, 2020
.
Decided on: September 17, 2020
______________________________________________________________
Balak Ram .........Petitioner
Versus
Secretary (Forests) to the Government of Himachal Pradesh and
others ...Respondents
______________________________________________________________
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
____________________________________________________________
For the petitioner: Mr. M.L. Sharma, Advocate, through
video-conferencing.
For the respondents: Mr. Sudhir Bhatnagar and Mr. Arvind
r Sharma, Additional Advocates General
with Mr. Kunal Thakur, Deputy
Advocate General, through video-
conferencing.
______________________________________________________________
Sandeep Sharma, J.
Being aggrieved and dissatisfied with decision of the respondents to recover a sum of Rs.1,47,746/- paid to the petitioner as arrears on account of grant of work charge status, petitioner at the first instance approached erstwhile Himachal Pradesh Administrative Tribunal by way of OA No. 3516 of 2015, which now stands transferred to this Court and re-
registered as CWPOA No. 5637 of 2019, praying therein for the following reliefs:
Whether reporters of the Local papers are allowed to see the judgment? .::: Downloaded on - 19/09/2020 20:17:56 :::HCHP -2-
"i) to direct the respondents to make payment of the pending instalaments as done in the case of the persons mentioned in para-6(v) of the petition."
.
2. For having bird's eye view of the matter, certain undisputed facts as emerge from pleadings adduced on record by the respective parties are that the petitioner was initially appointed as a Mali in the Forest Department on daily wage basis on 1.3.1992 and after having rendered ten years' continuous service with 240 days in each calendar year on 1.1.2002, became eligible for grant of work charge status in terms of judgment rendered by Hon'ble Apex Court in celebrated case of Mool Raj Upadhyay. Since the respondents failed to grant aforesaid benefit in favour of the petitioner, despite there being clear cut mandate issued by Hon'ble Apex Court in Mool Raj Upadhyay (supra), he was compelled to approach this Court by way of CWP no. 5211 of 2010, titled Balak Ram vs. State of Himachal Pradesh and others. This Court, vide judgment dated 26.8.2010, disposed of the petition with a direction to the respondents to take a final decision in light of judgment (supra).
3. In compliance to aforesaid judgment, work charge status came to be conferred upon the petitioner with effect from 1.1.2002 vide letter dated 13.12.201 (Annexure R-1). Arrears on account of grant of work charge status for the period ::: Downloaded on - 19/09/2020 20:17:56 :::HCHP -3- 1.1.2002 to 31.5.2011 were also calculated by the Department concerned on the basis of clarification given by the Finance .
Department, conveyed vide letter No. FFE-A(E)2-1/2008-II dated 11.7.2011. It is also not in dispute that pursuant to aforesaid financial sanction given by the Department concerned, petitioner was paid a sum of Rs.2,03,405/- in three installments of Rs.67,801, 67,802 and 67,803. However, after release of aforesaid amount to the petitioner, respondent Department as per instructions of the Finance Department conveyed by Principal Secretary (Forests) to the Government of Himachal Pradesh, vide letter dated 8.3.2013 (Annexure R-7), ordered that the arrears in excess of three years, ordered to be paid to the petitioner, are required to be recovered in terms of judgment rendered by Hon'ble Apex Court in Jai Dev Gupta (AIR 1998 SC 2819). In the aforesaid background, petitioner has approached this Court by way of instant petition, praying therein for the relief, as reproduced herein above.
4. Having heard learned counsel for the parties and perused the material available on record, the question which surfaces to the fore for adjudication by this Court is, "whether the respondents are legally competent to recover the amount already paid to the petitioner as arrears on account of grant of work charge status for the period with effect from 1.3.2002 to 31.5.2011 and to stop the further payment in terms of ::: Downloaded on - 19/09/2020 20:17:56 :::HCHP -4- instruction of Finance Department, Himachal Pradesh, conveyed vide letter dated 8.3.2013 (Annexure R-7), especially .
when such amount was sanctioned by Finance Department, Himachal Pradesh in favour of the petitioner on account of arrears on grant of work charge status. Since, there is no dispute inter se parties that the petitioner, after having rendered service on daily wage basis for requisite period, had become entitled for grant of work charge status and such benefit stands extended to the petitioner with effect from 1.3.2002 vide Annexure R-1, there appears to be no occasion for this Court to go into that aspect of the matter, especially when there is no challenge, if any, to the same by either of the parties. Similarly, there is no dispute that Government of Himachal Pradesh held the petitioner entitled to a sum of Rs.3,39,007/- as arrears on account of grant of work charge status for the period with effect from 1.3.2002 to 31.5.2011 vide Annexure R-3, dated 22.2.2012.
5. Grouse of the petitioner in the case at hand, is that once respondent Department, in compliance of judgment dated 26.8.2010 passed by a Division Bench of this Court in CWP No. 5211 of 2010, had decided to confer upon the petitioner work charge status with effect from 1.1.2002 and had sanctioned a sum of Rs.3,39,007/- vide communication dated 22.2.2012, no recovery, if any, could have been effected from him on the ::: Downloaded on - 19/09/2020 20:17:56 :::HCHP -5- strength of instructions of the Finance Department conveyed vide letter dated 8.3.2013 by Principal Secretary (Forests) to .
the Government of Himachal Pradesh (Annexure R-7), wherein it has been held that arrears in excess of three years period so released are required to be recovered in terms of judgment rendered by Hon'ble Apex Court in Jai Dev Gupta (supra). By way of fresh calculations, petitioner has been held entitled to a sum of Rs.55,665/- on account of arrears, but since he has been already released substantial amount in three installments, amount of Rs.1,47,746/- paid in excess, now is sought to be recovered by the respondents in terms of instructions issued by Finance Department.
6. Before adverting to the factual matrix of the case vis-à-vis prayer made in the instant petition, this Court deems it fit to take note of judgment rendered by Hon'ble Apex Court in Jai Dev Gupta, which is as under:
"The appellant approached the central Administrative Tribunal for the relief that he is entitled to the pay-scale of Lecturer in Commercial arts though he was appointed to the post of 'Studio Artist'. In addition to that he claimed the difference in the salary from the year 1971. He approached the Tribunal for this relief in May. 1989. The Tribunal accepted the claim of the appellant that he should be paid the salary of Lecturer in Commercial Arts though he was appointed to the post of 'Studio Artist' in View of the fact that he was performing the duties of Lecturer in Commercial Arts. However, the ::: Downloaded on - 19/09/2020 20:17:56 :::HCHP -6- Tribunal granted the relief of difference in backwages from May, 1988 only on the ground that under Section 21of the Administrative Tribunals Act the period of one year is prescribed for redressal of grievances. Against the decision .
of the Tribunal that the appellant is entitled to be paid the salary of Lecturer in Commercial Arts though he was appointed as 'Studio Artist' the respondents have not filed any appeal. The appellant has preferred this appeal claiming the difference in backwages from the date of his posting as Lecturer in Commercial Arts.
2. Learned counsel appearing for the appellant submitted that before approaching the Tribunal the appellant was making number of representations to the appropriate authorities claiming the relief and that was the reason for not approaching the Tribunal earlier than May, 1989. We do not think that such an excuse can be advanced to claim the difference in backwages from the year 1971. In Administrator of Union Territory of Daman and Diu & Ors. Vs. R.D. Valand 1995 Supp(4) SCC 593 this court while setting aside an order of Central Administrative Tribunal has observed that the Tribunal was not justified in putting the clock back by more than 15 years and the Tribunal fell into patent error in brushing aside the question of limitation by observing that the respondent has been making representations from time to time and as such the limitation would not come in his way. In the light of the above decision, we cannot entertain the arguments of the learned counsel for the appellant that the difference in backwages should be paid right from the year 1971. At the same time we do not think that the Tribunal was right in invoking section 21 of the Administrative Tribunals Act for restricting the difference by backwages by one year.
::: Downloaded on - 19/09/2020 20:17:56 :::HCHP -7-3. In the facts and circumstances of the case, we hold that the appellant is entitled to get the difference in backwages from May, 1986. The appeal is disposed of accordingly with no order as to costs.
.
7. Careful perusal of aforesaid judgment rendered by Hon'ble Apex Court, clearly reveals that the same cannot be made applicable to the case of the petitioner. Facts in Jai Dev Gupta's case reveal that the petitioner in that case approached Central Administrative Tribunal for the relief that he is entitled to pay scale of Lecturer in Commercial Arts though he was appointed to the post of Studio Artist. Apart from above, petitioner in that case claimed difference in salary from the year 1971 but since for said relief, petitioner approached the Tribunal in the year 1989, as such, Tribunal, while granting relief to the petitioner, restricted the back wages upto May, 1988 on the ground that under S.21 of the Administrative Tribunals Act, the period of one year is prescribed for redressal of grievance. Against the aforesaid decision of the Tribunal, petitioner in that case approached Hon'ble Apex Court. Hon'ble Apex Court, having taken note of the plea of the petitioner that before approaching Tribunal, he made a number of representations to the appropriate authorities claiming the relief, ruled that such excuses cannot be advanced to claim difference in backwages from the year 1971. While placing reliance upon judgment rendered in case Administrator of ::: Downloaded on - 19/09/2020 20:17:56 :::HCHP -8- Union Territory of Daman and Diu v. R.D. Valand, 1995 Supp (4) SCC 593, wherein Hon'ble Apex Court, while setting aside .
order of Central Administrative Tribunal, had observed that the Tribunal was not justified in putting the clock back by more than 15 years and that the Tribunal fell into patent error by brushing aside question of limitation by observing that the respondent has been repeatedly representing to the Department, and as such, plea of limitation will not arise, rejected the prayer made on behalf of the petitioner in that case that difference in backwges should be paid right from the year 1971. Apart from above, Hon'ble Apex Court while holding that the Tribunal was not right in invoking S.21 of the Administrative Tribunals Act for restricting backwages for a period of one year, held the petitioner in that case entitled to differences in backwages from the year 1986 i.e. three years prior to filing of the petition.
8. Having carefully perused the aforesaid judgment rendered by Hon'ble Apex Court in Jai Dev Gupta, this Court finds force in the submission of Mr. M.L. Sharma, learned Counsel appearing for the petitioner that the judgment rendered by Hon'ble Apex Court is a judgment in personam and not a judgment in rem and as such could be made applicable to each and every case, especially in the case of the petitioner for effecting recovery of amount already calculated by the ::: Downloaded on - 19/09/2020 20:17:56 :::HCHP -9- respondent authorities as arrears on account of grant of work charge status for the period 1.3.2002 to 31.5.2011. If the .
judgment rendered by Hon'ble Apex Court is read in its entirety, observations and findings returned therein are specifically with reference to provisions contained under S.21 of the Administrative Tribunals Act, which prescribe one year limitation for redressal of grievance.
9. In Jai Dev Gupta's case, tough the Hon'ble Apex Court restricted the claim of the petitioner for three years having taken note of the fact that he approached the Tribunal beyond the prescribed period of limitation i.e. after 18 years but, at no point of time, laid down any general principle that in all other cases, claimants/petitioners if entitled, would be paid arrears for three years prior to filing of the petition in the court of law.
10. There cannot be any quarrel with the proposition that the Department/organisation liable to pay some amount can pray for restricting the claim for a period of three years while placing reliance upon aforesaid judgment rendered in Jai Dev Gupta case, wherein admittedly Hon'ble Apex Court having taken note of delay of 18 years, restricted the claim of the petitioner for a period of three years but, if no such restriction is ever put by the court, while holding petitioner/claimant entitled for the benefits, the Department/organisation liable to pay the amount, of its own, cannot effect recovery or deduct the ::: Downloaded on - 19/09/2020 20:17:56 :::HCHP
- 10 -
amount, on the basis of the judgment rendered by Hon'ble Apex Court in Jai Dev Gupta.
.
11. In the case at hand, work charge status came to be conferred upon the petitioner with effect from 1.1.2002 by the Department in compliance to judgment rendered by a Division Bench of this Court on 26.8.2010 in CWP No. 5211 of 2010.
Pursuant to grant of work charge status to the petitioner, respondent Authorities calculated arrears on account of grant of work charge status to the tune of Rs.3,39,007/- and thereafter, released three installments of Rs.68,701, Rs.68,702/- and Rs.68,702/-, as such, subsequent action of the respondents, whereby amount already paid to the petitioner as arrears on account of grant of work charge status is sought to be recovered, cannot be said to be legal and justifiable , especially when it stands established on record that the respondent authorities having found petitioner entitled to work charge status sanctioned a sum of Rs.3,39,007/- in his favour.
12. Though, for the reasons stated in earlier part of the judgment, this Court is of the definite view that the Finance Department could not have issued any instructions for effecting recovery of amount paid on account of arrears, if any, to the employees on account of their being conferred work charge status or regularisation, on the basis of judgment ::: Downloaded on - 19/09/2020 20:17:56 :::HCHP
- 11 -
rendered in Jai Dev Gupta's case, but even otherwise, said Notification came to be issued in the year 2010, as such, .
cannot be made applicable to the cases which otherwise stood decided prior to issuance of said instructions. Since no specific challenge has been laid to the aforesaid instructions of Finance Department, whereby decision has been taken to restrict the arrears to three years in the instant petition, this Court would refrain itself from quashing the same in the instant proceedings. however, having taken note of the communication dated 11.7.2011 (Annexure R-2), issued by Additional Chief Secretary (Forests) to Principal Chief Conservator of Forests, Himachal Pradesh, wishes to observe that the officers manning responsible posts in the Government do not bother to look into/peruse the opinion rendered by the Law Department, whose duty is otherwise to advise the Government in legal matters. Communication dated 11.7.2011 (Annexure R-2) annexed with the reply filed by respondents Nos. 1 to 3 reveals that the office of Additional Chief Secretary (Forests) to the Government of Himachal Pradesh, after having received clarification from the Finance Department, clarified to the office of Principal Chief Conservator of Forests, Himachal Pradesh that the judgment rendered by Hon'ble Apex Court in Jai Dev Gupta's case needs to be taken as additional pleading, while defending/preferring various petitions in the courts, so as to ::: Downloaded on - 19/09/2020 20:17:56 :::HCHP
- 12 -
restrict the financial liability, however, to restrict financial liability, it cannot be used to subvert and misinterpret any .
court order. Hence, Department is advised to implement the court order in its entirety. Besides above office of Additional Chief Secretary (Forests) to the Government of Himachal Pradesh, in the aforesaid communication, further clarified that the matter was taken up with the Law Department, which has opened as under:
".. this department is of the considered opinion that in the cases of instant retrospective regularization, especially on the basis of Mool Raj Upadhaya's case of the Hon'ble Supreme Court, the ratio of the Jai Dev Gupta's case can not be imported as spelt out above. The A.D. is therefore advised to act strictly as per scheme of the pinion dated 21.1.2008 supra. However, it would not be out of place to mention there that the scheme of the Mool Raj Upadhaya's case is being followed & implemented by all the administrative Departments of the State Government & the Department of Forests can not act in different manner as has rightly been observed interalia by the Department of Finance that 'so as to restrict financial liability, it cannot be used subvert/misinterpret any court order/judgment.' Hence, the Department is advised to implement the court orders in its entirety. "
13. Law Department in the aforesaid communication specifically clarified that in cases of retrospective regularisation, especially on the basis of Mool Raj Upadhyay, ration of Jai Dev Gupta, case cannot be imported. However, Forest Department, ignoring aforesaid clarification/information ::: Downloaded on - 19/09/2020 20:17:56 :::HCHP
- 13 -
issued by the Finance Department and Law Department, proceeded to effect recovery of amount already sanctioned in .
favour of the petitioner on account of grant of work charge status.
14. During arguments, learned Additional Advocate General also placed reliance upon following judgments of Hon'ble Apex Court to substantiate the claim of the respondent Department that the petitioner is/was entitled for arrears for three year prior to filing of the petition:
1. Union of India & Ors. vs. Tarsem Sngh (2008) 8 SCC 648
2. Prahlad Raut v. All India Institute of Medical Sciences, Civil Appeal No. 6640 of 2019, decided on 27th August, 2019.
3. Prem Singh vs. State of Uttar Pradesh & Ors. (2019) 10 SCC 516
4. Harendra Chandra Nath vs. State of Tripura (Writ appeal No. 71 of 2007, decided on 30.5.2012) by Gauhati High Court.
15. However, having carefully perused aforesaid judgments rendered by Hon'ble Apex Court and other High Court(s), this Court finds that in all the aforesaid cases, though Hon'ble Apex Court held the claimants entitled for reliefs as prayed for but restricted payment of arrears for a period of three years having taken note of delay and laches in approaching court of law.
16. As has been discussed herein above, there cannot be any quarrel with the proposition of law that the ::: Downloaded on - 19/09/2020 20:17:56 :::HCHP
- 14 -
Department/organisation liable to pay some amount can always pray to restrict the claim for a period of three years on .
the ground of delay and laches while placing reliance upon aforesaid judgments as well as judgment rendered in Jai Dev Gupta but if no such restriction is imposed by court, while holding a person entitled for some amount, Department/Organisation liable to pay such amount, of its own, cannot restrict claim of the claimant on the basis of aforesaid judgmenst, rather, in that eventuality, Department/organisation is either to pay full amount or to file further appeal, if any, against the judgment rendered by the court, whereby it has held a claimant entitled for full amount.
17. In the case at hand, respondents, of their own, having found petitioner entitled for grant of work charge status, granted him this benefit with effect from 1.1.2002 vide communication dated 13.2.2010 and thereafter, after having received clarification of Finance Department, calculated arrears to the tune of Rs.3,39,007/- and, as such, amount already ordered to be released in favour of the petitioner, cannot be recovered by the Department, that too by misinterpreting the judgment rendered by Hon'ble Apex Court in Jai Dev Gupta's case.
18. Consequently, in view of above, present petition is allowed. Respondents are directed to release the entire amount ::: Downloaded on - 19/09/2020 20:17:56 :::HCHP
- 15 -
of arrears as calculated /mentioned in Annexure R-3, dated 22.2.2012, within a period of three months, alongwith upto-
.
date interest. Amount, if any recovered from the petitioner shall also be paid to him, with upto-date interest, within above period.
All pending applications also stand disposed of.
(Sandeep Sharma) Judge September 17, 2020 (Vikrant) ::: Downloaded on - 19/09/2020 20:17:56 :::HCHP