Madras High Court
D.Ramkumar vs Pondicherry Society For Higher ... on 21 January, 2015
W.P.No.23154 of 2015
IN THE HIGH COURT OF JUDICATURE OF MADRAS
RESERVED ON : 21.04.2022
DELIVERED ON : 08.08.2022
CORAM:
THE HONOURABLE MR. JUSTICE M.S. RAMESH
W.P.No.23154 of 2015
D.Ramkumar ... Petitioner
Vs
1.Pondicherry Society for Higher Education,
Represented by its Chairman,
PIPMATE Complex, Lawspet,
Puducherry – 605008.
2.The Member Secretary,
Pondicherry Society for Higher Education,
PIPMATE Complex, Lawspet,
Puducherry – 605008.
3.The Principal,
Kasthurba College for Women,
Villianur,
Puducherry -605110. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus, calling for records relating to the order
of the first respondent made in No.379/PONSHE/Estt./E2/2013 dated
21.01.2015 to quash the same and consequently direct the respondents to
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W.P.No.23154 of 2015
forthwith regularize the period between 25.11.2013 and 29.06.2014 as duty for
all purposes as per Fundamental Rules and to extend all benefits both service
and monetary arising thereto.
For Petitioner : Mr.L.Chandrakumar
For R-1 and R-3 : No appearance.
For R-2 : Mr.T.M.Naveen
ORDER
The claim of the petitioner seeking for salary and other monetary benefits from the date of his transfer till the date of his joining at the transferred place, i.e., between 26.11.2013 and 29.06.2014, was rejected by the first respondent herein through the impugned order, dated 21.01.2015, which is under challenge in the present Writ Petition.
2. The brief facts of the case are as follows:
(i) The petitioner herein is a 100% visually challenged person. He was initially appointed as a Lecturer in English on 06.02.2009 at the third respondent College. During his employment, he was transferred on 25.11.2013 from the third respondent College to Rajiv Gandhi Arts and Science College, Thavalakuppam, Puducherry. The challenge to the transfer order before this 2/19 https://www.mhc.tn.gov.in/judis W.P.No.23154 of 2015 Court in W.P.No.33715 of 2013, came to be dismissed by a learned Single Judge on 27.06.2014. As against the same, the petitioner preferred an appeal in W.A.No.961 of 2014 and by an order, dated 10.09.2014, the order of the learned Single Judge in the Writ Petition, as well as the transfer order, dated 25.11.2013, were set aside and the Writ Petition came to be allowed.
(ii) Pursuant to the order passed in the Writ Petition, the petitioner had joined at the transferred place in Rajiv Gandhi Arts and Science College on 30.06.2014. His request seeking for salaries for the period between 26.11.2013 and 29.06.2014 was rejected through the impugned order, dated 21.01.2015, by stating that since he had not objected the transfer order and had also not joined duty in the transferred post between 26.11.2013 and 29.06.2014, he is not entitled to claim salary for the said period on the principle of “no work no pay”. This rejection order is under challenge in the present Writ Petition.
3. While the learned counsel for the petitioner submitted that in view of the quashing of the transfer order by the Hon'ble Division Bench of this Court in W.A.No.961 of 2014, the petitioner would be entitled for payment of the salaries 3/19 https://www.mhc.tn.gov.in/judis W.P.No.23154 of 2015 between the period of transfer and his date of joining, the learned counsel for the respondents submitted that since the Hon'ble Division Bench had not ordered for payment of the monetary benefits during this period and also since the petitioner did not actually work, he is not entitled for any monetary benefits and as such, there is no illegality in the impugned order. In support of his contention, the learned counsel for the respondents placed reliance on the decisions of the Hon'ble Supreme Court in the case of T.P.Moideen Koya Vs. Government of Kerala and others, reported in (2004) 8 SCC 106 and Omprakash Verma and others Vs. State of Andhra Pradesh and others, reported in (2010) 13 SCC 158, for the proposition that since the Hon'ble Division Bench had not ordered for payment of the monetary benefits, it is not open to the petitioner to once again re-agitate the claim, which could amount to res judicata. He also placed reliance on the case of Sukhdeo Pandey Vs. Union of India and another, reported in (2007) 7 SCC 455, for the ground that the petitioner is not entitled for salaries on the principle of 'no work no pay'.
4. The main ground of objection from the respondents seems to be that since the High Court had not directed for payment of the monetary benefits, 4/19 https://www.mhc.tn.gov.in/judis W.P.No.23154 of 2015 while setting aside the order of transfer, the petitioner is not entitled for the same. In this connection, it would be relevant to refer to the order of the Hon'ble Division Bench passed in W.A.No.961 of 2014, dated 10.09.2014. The relevant portion of the order reads as follows:
“18. It is a well settled principle of law that transfer order can be challenged on the ground of mala fides as well as violation of any statutory rule/provision. The first respondent having violated the statutory provision as enshrined in Section 38 of the Act, the same is liable to be set aside. It is not the case of the first respondent that in the third respondent college there is no vacancy and the post held by the appellant is surplus. Even assuming that one post has become surplus in English department, only the junior- most in the Department can be deployed to other needy college. The only contention of the first respondent before this Court was that the third respondent College being a women's college, the male faculty members are to be transferred to other colleges. As already stated six Lecturers/Assistant Professors are serving in the third respondent College even now and transferring the appellant alone to the 4th respondent college is a discriminatory treatment and arbitrary action exercised by the first respondent.
19. The appellant being 100% visually challenged person was 5/19 https://www.mhc.tn.gov.in/judis W.P.No.23154 of 2015 managing his assignments as Assistant Professor/HOD of English Department in third respondent College in a healthy and friendly atmosphere and by transferring him to the 4th respondent College his normal way of functioning as physically challenged person is very much affected. In a welfare State, the persons vested with responsibilities are bound to protect the welfare of physically challenged persons, as they got disability by birth or by some accident and the said duty is recognised not only under Act 1/2006, but also as a human right. The inaction on the part of the second respondent in not considering the representation of the appellant seeking re-transfer to the third respondent college shows the defiant and insensitive attitude of the second respondent. Hence this Court is inclined to interfere with the order of transfer dated 25.11.2013, which was upheld by the learned single Judge by order dated 27.6.2014.
20. The learned counsel appearing for respondents 1 and 2 tried to justify the order of transfer, which was upheld by the learned single Judge by relying on the judgments of the Honourable Supreme Court reported in (1989) 3 SCC 445 (Union of India v.
H.N.Kirtania); (2006) 9 SCC 583 (S.C.Saxena v. Union of India); and (2009) 11 SCC 678 (Tushar D.Bhatt v. State of Gujarat) and argued that in the light of the said judgments no interference is called for in the order passed by the learned single Judge. As we 6/19 https://www.mhc.tn.gov.in/judis W.P.No.23154 of 2015 have rendered our findings with regard to the applicability of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995, which gives statutory right to the appellant, who is a 100% visually challenged person, and in the light of the Official Memorandum dated 31.3.2014 issued by the Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training, Government of India, which states that the practice of considering choice of place of posting in case of persons with disabilities may be continued and to the extent feasible, they may be retained in the same job, where their services could be optimally utilised, the above cited decisions relied on by the learned counsel for respondents 1 and 2 have no application to the facts and circumstances of this case.
21. In fine, the order of transfer dated 25.11.2013 passed by the second respondent transferring the appellant as HOD of English Department from the third respondent Kasthurba College for Women, Villianur, Puducherry to the 4th respondent Rajiv Gandhi Arts and Science College, Thavalakuppam, Puducherry, as well as the order passed by the learned single Judge in W.P.No.33715 of 2013 dated 27.6.2014 are set aside and the writ petition filed by the appellant is allowed.” [emphasis supplied by me] 7/19 https://www.mhc.tn.gov.in/judis W.P.No.23154 of 2015
5. The aforesaid extract is self explanatory. The Hon'ble Division bench, while setting aside the order of transfer, had dealt with the merits of the case and held that the transfer was a discriminatory treatment and an arbitrary action exercised by the first respondent.
6. The consequential issue that arises for consideration is merely because the Hon'ble Division Bench did not direct the respondents to pay the monetary benefits during the period when the petitioner had not joined duty, would entitle them to deny such monetary benefits? The decisions in T.P.Moideen Koya and Omprakash Verma (supra) relied by the respondents is on the principles of res judicata. It is not the case of the respondents that the petitioner's claim for salaries for the period between 26.11.2013 and 29.06.2014 was rejected by the Hon'ble Division Bench in the earlier proceedings. The principle of res judicata would apply as a bar to the subsequent proceedings when certain contentions have already been raised in the earlier round of litigation and considered therein. Likewise, the principle of constructive res judicata would apply in cases, where contentions have either been raised and not dealt with by the Court in the first round of litigation or such contentions were available and yet not raised therein, 8/19 https://www.mhc.tn.gov.in/judis W.P.No.23154 of 2015 which would act as a estoppel for being raised in the subsequent proceedings. There is no quarrel on this proposition and hence, the decisions relied upon by the learned counsel for the respondents does not require further elaboration.
7. However, the issue involved in the present Writ Petition as to whether the payment of the monetary benefits between the period of the petitioner's transfer and subsequent joining in the post, requires to be specifically ordered by the Court in the earlier proceedings when the transfer order was set aside; or whether such entitlement of the benefits is automatic when the order of transfer is set aside? Incidentally, the issue that arises is as to whether the petitioner's claim for monetary benefits can be rejected on the ground of “no work no pay”, as referred to by the first respondent in the impugned order?
8. In service jurisprudence, whenever the employer passes an order that is deemed to be illegal, whether it be a case of dismissal or any other termination, suspension, transfer, etc., the employee would be entitled for reinstatement/joining in the original place of employment when such orders are passed and all consequential service and monetary benefits during the period of 9/19 https://www.mhc.tn.gov.in/judis W.P.No.23154 of 2015 non-employment would automatically follow, as if the original order of dismissal/termination/suspension/transfer was never passed. In cases of wrongful/illegal termination, the Hon'ble Supreme Court, in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and others, reported in (2013) 10 SCC 324, had held that such an employee/workman would be entitled for reinstatement with continuity of service and backwages. The background on which this principle was laid down by the Hon'ble Supreme Court is to rehabilitate such an employee, whose termination was held to be illegal and invalid. The relevant portion of the order reads as follows:
“22.The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter’s source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food 10/19 https://www.mhc.tn.gov.in/judis W.P.No.23154 of 2015 and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” The aforesaid ratio that has been laid down in cases of termination of an employee, would also be equally applicable in cases where the illegal orders of transfer of an employee has been made.11/19
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9. Apart from such a ratio laid down in Deepali Gundu Surwase, the Hon'ble Supreme Court, in the case of Somesh Tiwari Vs. Union of India and others, reported in (2009) 2 SCC 592, had specifically dealt with case of illegal transfer of an employee and cases of transfer, where inter alia mala fide on the part of the authority is proved. In such cases of illegal transfer, it was held therein that such a transferred employee would be entitled for the salaries for the period, for which, he has not worked, pursuant to the transfer order and that the principle of no work no pay will not apply. The relevant portion of the order reads as follows:
''16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds – one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu 12/19 https://www.mhc.tn.gov.in/judis W.P.No.23154 of 2015 of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.
...19. We, although, are of the opinion that the appellant, thus, should have joined at his transferred post, he did not do so as a result whereof he might have committed a misconduct. But while invoking the doctrine of ‘no work no pay’, as urged by Mr. Quadri, the superior courts must strike a balance. With a view to do justice to both the parties, the court was required to consider the conduct of both the parties.
...22. The High Court while exercising its jurisdiction under Article 226 of the Constitution of India must consider the facts of each case. Mechanical application of the normal rule “no work no pay” may in a case of this nature, be found to be wholly unjust. No absolute proposition of law in this behalf can be laid down.
23. This Court in Commissioner, Karnataka Housing Board v.
C. Muddaiah, [(2007) 7 SCC 689 ] laid down the law, thus :-
“33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue 13/19 https://www.mhc.tn.gov.in/judis W.P.No.23154 of 2015 necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged.
34. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a 14/19 https://www.mhc.tn.gov.in/judis W.P.No.23154 of 2015 given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected.” ''
10. In the present case, the Hon'ble Division Bench of this Court had clearly held that the order of transfer was discriminatory and arbitrary, which has to be regarded as illegal. If that be so, the claim for the monetary benefits including the salary after the transfer order, cannot be rejected on the ground of 'no work, no pay'.
11. Since the case of Somesh Tiwari deals specifically on transfer cases of employees and on the principle of entitlement and on the scope of principle of 15/19 https://www.mhc.tn.gov.in/judis W.P.No.23154 of 2015 no work no pay, the decision relied by the learned counsel for the respondents in Sukhdeo Pandey (supra), which arises out of the general principle of no work no pay in a case of reversion, the facts of which reveals that the employee therein was reinstated about fifteen years back from the date of the order, will have no applicability to the facts of the present case. Thus, the reasoning adopted by the first respondent herein in the impugned order that the denial of the claim of the petitioner for the salaries and other monetary benefits from 26.11.2013 to 29.06.2014, on the ground of 'no work, no pay', cannot be sustained. Consequently, in the light of the ratio laid down by the Hon'ble Supreme Court in the case of Somesh Tiwari (supra), the petitioner would be entitled for the monetary benefits, he seeks for during that period.
12. Thus, it requires to be held that when the order of transfer of the petitioner was set aside by this Court, the consequential service and monetary benefits arising therefrom between 26.11.2013 and 29.06.2014 would automatically become a part of such an order and no specific directions need be given for payment of such benefits. If that be so, the petitioner herein need not specifically plead for the relief of consequential service and monetary benefits, in 16/19 https://www.mhc.tn.gov.in/judis W.P.No.23154 of 2015 the earlier round of litigations. Incidentally, since the Hon'ble Division Bench had not denied these benefits to the petitioner, it ought to be held that he would be entitled for all these benefits, in view of the decisions of the Hon'ble Supreme Court cited in this order. Thus, the principles of res judicata nor constructive res judicata will not apply to the facts of the present case and hence, the judgments relied upon by the learned counsel for the respondents in this regard, is of no avail.
13. In the result, the impugned order, dated 21.01.2015 on the file of the first respondent is quashed. Consequently, there shall be a direction to the first respondent herein to forthwith regularise the period between 25.11.2013 and 29.06.2014, as duty period for all purposes and extend all the service and monetary benefits arising thereto, within a period of four (4) weeks from the date of receipt of a copy of this order.
14. This Writ Petition stands allowed. There shall be no order as to costs.
08.08.2022 17/19 https://www.mhc.tn.gov.in/judis W.P.No.23154 of 2015 Index: Yes Speaking order Lm M.S.RAMESH,J.
Lm Order made in W.P.No.23154 of 2015 18/19 https://www.mhc.tn.gov.in/judis W.P.No.23154 of 2015 08.08.2022 19/19 https://www.mhc.tn.gov.in/judis