Madhya Pradesh High Court
Naval Kishore Sharma vs State Of M.P. on 19 January, 2017
1
Writ Petition No.116/2008
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB: HON'BLE MR. JUSTICE S.A. DHARMADHIKARI
Writ Petition No. 116/2008
Nabal Kishore Sharma
Vs.
State of M.P. & anr.
Whether reportable :- Yes /No
_______________________________________________
For applicant : Shri K.N. Gupta, senior counsel with
Shri Kumar Gaurav, Advocate for the
petitioner.
For Respondent : Shri Harish Dixit, Govt. Advocate,
for the respondent/State.
ORDER
(Delivered on this Day of 19th January,2017)
1. Heard finally with the consent of both the parties.
2. By filing this petition under Article 226 of the Constitution of India, the petitioner has assailed the order dated 21.11.2007 (Annexure P/1) passed by the respondent No. 2, whereby t he claim for the salary for the period from 01.03.2003 to 28.07.2005 (2 years 4 months 28 days) on the ground of unauthorized absence from the duty applying principle of "No work No pay" has been rejected. However, the said period has been counted for the purpose of pension.
3. Brief facts leading to filing of this case are that, the petitioner was appointed as Lower Division Clerk on 13.01.1966 in Life 2 Writ Petition No.116/2008 Insurance Department, Bhopal. Thereafter, he was promoted on the post of Upper Division Clerk. Again he was promoted as Inspector on 08.11.1990 and thereafter, he was promoted as Superintendent on 25.10.2002. The Life Insurance Department was merged with the Directorate of Small Saving and State Lotteries, M.P. Bhopal.
4. Since, the petitioner was not paid the salary for the aforesaid period, he filed an application before the Administrative Tribunal, which was registered as Original Application No. 265/2003. The petitioner did not join even though no stay was granted by the Tribunal. After abolition of the Tribunal, the aforesaid application was transferred to this Court and it was renumbered as Writ Petition No. 8105/2003. The said W.P. was disposed of vide order dated 20.04.2004 with the following directions:-
"Accordingly, respondents shall take proper action for posting of the four petitioners in suitable department in accordance with their requirement keeping in view of the aforesaid condition. In the meanwhile, the claim of the petitioners for payment of salary for the period of March 2003, till date proper orders are passed shall be made to the petitioners as the petitioners had a reasonable justification for not complying with the directives of the respondents which had adversely affected their service conditions and according to the petitioners they were not permitted to join unless and until they withdrawn the present case. Accordingly, petition is allowed and the following direction issued to the respondents:-
1. To settle claims of the petitioners for payment of salary as directed hearinabove and pass proper order.
2. They absorbed all the petitioners keeping in view of the fact that their service condition are not adversely affected or changed.
3. Let necessary action be taken for implementing the aforesaid direction within a period of two months from the date of filing of certified copy of this order. "
5. Thereafter, in view of the above order of this Court the 3 Writ Petition No.116/2008 petitioner submitted the application for posting on 22.05.2004. Since, no action was taken regarding his posting, the petitioner had left with no option, but to file contempt petition No. 27/2005. The same disposed of vide order dated 07.04.2006 with the following directions:-
"Accordingly for the present without initiating action of contempt against the respondents this application is disposed of with direction to petitioner to join first at the place where he is posted, thereafter, respondents shall make compliance of other directives issued by this Court."
6. Thereafter, the petitioner was allowed to join on 29.07.2005 and was permitted to continue in service w.e.f the aforesaid date. However, the respondents did not take any action with regard to salary of the petitioner when he was not permitted to work in accordance with the directions of this Court. The petitioner preferred W.P. No. 6016/2006 (s) for claiming salary for the aforesaid period in view of the direction issued by this Court in W.P. No. 8105/2003 and contended that respondents be directed to pass suitable order with regard to intervening period of absence of the petitioner as per the directions issued by this Court in writ petition No. 8105/2003 vide order dated 20.04.2004.
7. On the other hand, learned counsel for the respondent/State submitted that the petitioner was absent unauthorisedly and there was no order in favour of the petitioner and for the absence of the petitioner a show cause notice was issued to the petitioner. The petitioner submitted his reply to the aforesaid notice. It is an admitted fact that the petitioner has been retired from service on 31.12.2006.
8. Counsel for the respondent further submitted that the petitioner himself was absent and for that purpose a show-cause notice was issued to him. This Court while deciding the writ petition No. 6016/2006 (s), vide order dated 10.07.2007 was pleased to quash the 4 Writ Petition No.116/2008 show cause notice dated 08.09.2006 and directed the respondents to pass suitable order with regard to intervening period of absence of the petitioner as per the directions issued by Court passed in W.P. No. 8105/2003 vide order dated 20.04.2004.
9. Thereafter, the respondents in compliance of the order dated 10.07.2007 was pleased to pass a speaking order Annexure P/1 dated 21.11.2007 wherein the period from 01.03.2003 to 28.07.2005 (2 years 4 months 28 days) was treated as unauthorized absence from the duty applying principle of "No work No pay". The petitioner was not entitled for the salary of the aforesaid period.
10. The petitioner aggrieved by the order dated 21.11.2007 has challenged the said order on the ground that the petitioner was not allowed to join the duty at that relevant point of time. He was ready and willing to work in accordance with the direction issued by this Court in W.P. No.8105/2003, but the respondent did not allow him to join on duty under the pretext that the case was pending before this Court and the decision is awaited. Thereafter only after the direction issued by this Court in Contempt petition No. 27/2005, the petitioner submitted his joining on 29.05.2005 which was accepted vide order dated 12.08.2005. In the aforementioned situation petitioner has not willfully absented from the service and the respondents themselves have not allowed the petitioner to join the services, therefore, without considering this fact, issuing order Annexure P/1 and considering the aforesaid period as unauthorized absence by applying the principle of "No work No pay" would not apply in the present case.
11. On the other hand, a detailed reply has been filed by the respondent/State. It has been submitted that the respondent/State earlier took a policy decision on 28.12.2002 to close down the Directorate of Life Insurance Department, Gwalior and merged the same with the Small Savings and State Lotteries Department and 5 Writ Petition No.116/2008 thereafter, about 28 employees filed a petition which was registered as O.A. No. 265/2003 before the learned Tribunal. After winding up of the Tribunal, the same was transferred to this Court and registered as W.P. No. 8105/2003 which was decided on 20.04.2004. In compliance of the directions of this Court, about 24 employees joined their duties at new place of posting and 4 employees did not join and chose to wait for the outcome of the petitioner, even though there was no stay granted by this Court, therefore, the petitioner ought to have joined service as other employees have joined. After lapse of considerable time, the petitioner did not join the service and the lapses on the part of the petitioner cannot be shifted on to the respondents unnecessarily without any just cause or reason as the petitioner himself is responsible for unauthorized absence from duty and as such the petition filed by the petitioner deserves to be dismissed.
12. Learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Apex Court rendered in the case of Somesh Tiwari Vs. Union of India and ors. reported in 2009 (2) SCC 592, Burn Standard Co.Ltd and anr. Vs. Tarun Kumar Chakraborty and ors. reported in 2002 (10) SCC 585, and R.B. Vs. State of M.P. and others reported in 2008(5) M.P.H.T 291 (DB), wherein, it is held that the petitioner was willing to work but was illegally and unlawfully not allowed to do so under the pretext that the case is pending before the Court and also on the ground that there were no direction issued by the Court for allowing the petitioner to join services. The petitioner further contended that direction be issued to authority to grant him the benefit treating him as if he had worked.
13. The question which arises for consideration in this petition is that whether the petitioner would be entitled to salary for the period 6 Writ Petition No.116/2008 from 01.03.2003 to 28.07.2005 or not?
14. Heard the learned counsel for the parties.
15. The respondents have passed the impugned order dated 21.11.2007, wherein it has been mentioned that the salary of the petitioner has been protected and as such no loss has been caused to the petitioner for the purpose of salary. Secondly, as per the under taking given on 28.12.2006, the benefit of Rs. 69,417/- towards leave encashment of 196 days has also been extended to the petitioner. It is further mentioned that the salary and allowances for the period from 29.07.2005 to 31.12.2006 has also been paid alongwith retrial dues. Since, the petitioner did not join and work from 01.03.2003 to 28.07.2005 salary of the aforesaid period has not been paid on the principle "no work no pay" however, the aforesaid period shall be counted for the purpose of pension.
16. It is not a case of the petitioner that he denied to join in the new department or was not willing to work. In my considered view the principle of "No work No pay" shall apply to a case where a person voluntarily refuses to work or for some special reason the work could not be assigned to him. In the present case, indisputably because of pendency of the case before this Court, the petitioner was not allowed to join. It is only after the order passed by this Court in contempt petition No. 27/2006 the petitioner was allowed to join.
17. In view of the aforesaid, this Court has no hesitation to arrive at the conclusion that evidently the petitioner was not allowed to join the service in view of the order passed by this Court in W.P. No.8105/2003. It is only when the directions were issued while disposing the contempt petition the petitioner was allowed to join on 29.07.2005. In these circumstances, the respondents have not pointed out any concrete reason not to permit the petitioner to join the service except the reason that the case is pending before the 7 Writ Petition No.116/2008 Court, therefore, he could not be allowed to join. As no fault can be found on the part of the petitioner in not joining the service, the petitioner is entitled to get full salary with admissible allowances for the period from 01.03.2003 to 28.07.2005 (2 years, 4 months and 28 days) and if the salary has been revised during the aforesaid period, he will be entitled for the same alongwith all consequential benefits permissible for the said period, if any.
18. The respondents are directed to work out the salary and other monetary benefits permissible for the aforesaid period and pay the same to the petitioner within a period of four months from today.
19. The petition stands allowed.
20. No order as to cost.
(S.A. DHARMADHIKARI) JUDGE (19/01/2017) LJ*