Himachal Pradesh High Court
______________________________________________________________________ vs State Of Himachal Pradesh And Another on 26 June, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 1626/2015
Decided on 26.6.2015
______________________________________________________________________
Himanshu Sharma .... Petitioner
.
Versus
State of Himachal Pradesh and another .... Respondents
______________________________________________________________________
Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
Hon'ble Mr. Justice Sureshwar Thakur, Judge
Whether approved for reporting? 1yes.
For the petitioner : Mr. Subhash Sharma, Advocate.
For the respondents : Mr. Shrawan Dogra, Advocate General
with Mr. M.A. Khan, Additional
r Advocate General and Mr. P.M. Negi,
Deputy Advocate General, for
respondent No. 1.
Mr. Rakesh Dhaulta, Advocate, for
respondent No. 2.
______________________________________________________________________
Per Rajiv Sharma, Judge (oral):
Petitioner was appointed as a Senior Technician in HIMTRON on 31.3.1987. His services were transferred to T.V. Factory on 1.7.1988. T.V. Factory was closed on 16.6.1997. Petitioner approached this Court by way of CWP(T) No. 7005/2008, which was decided on 10.3.2011. Operative portion of the judgment reads as under:
"6. In the peculiar facts and circumstances of the case, the petition is disposed of with a direction to the respondents to consider the case of the petitioner for absorption against an existing vacancy of Senior Technician/ equivalent post, in the Respondent No.1-Corporation, in the first instance and in case no such post is available with the said Corporation, in any other Govt. Department/ Board/ corporation, within three months from the 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 18:27:19 :::HCHP 2
date of production of copy of this judgment by the petitioner, in accordance with law after affording an opportunity of being heard to him, if so advised. However, it is clarified that since the petitioner has neither joined nor worked against the post of Clerk offered to him, he shall not be entitled for any back-wages on the principle of 'no work no pay'.
.
2. In sequel to Judgment dated 10.3.2011, petitioner made a representation to the Managing Director of the respondent-Corporation on 25.4.2011. The representation made by the petitioner was rejected on 12.9.2011. Petitioner made another representation to the Managing Director. The Principal Secretary (Information Technology) vide annexure P-5. Principal Secretary (IT) informed the petitioner that one post of Workshop Instructor (Electronics) in the pay scale of `5480- 8925 has been created in Government Polytechnic for Women Kandaghat and an incumbent has been engaged on semester to semester basis from Student Welfare Fund since 2005-06. His tenure would come to an end on 17.6.2012. Petitioner was requested to give option for the post after 17.6.2012. Director Technical Education sent a communication dated 22.5.2012 to the Principal, Govt. Polytechnic (W), Kandaghat informing him that petitioner would be temporarily adjusted on secondment basis against the post of Workshop Instructor (Electronics) after 17.6.2012. Principal Secretary (Information Technology) sent a communication to the Managing Director of the respondent-Corporation on 28.6.2012 to relieve the petitioner to enable him to join in Government Polytechnic Kandaghat on secondment basis. Fact of the matter is that petitioner was not permitted to join duties. Director Technical Education sent a communication to the Managing Director on 17.7.2012 that petitioner has directly submitted joining report vide application dated 25.6.2012 and 29.6.2012 without ::: Downloaded on - 15/04/2017 18:27:19 :::HCHP 3 proper relieving from the Department. The Project Coordinator sent a communication to the Director Technical Education that the petitioner already stood relieved from the Corporation on 25.9.2000. Fact of the matter is that petitioner was permitted to join his duties only on .
7.12.2012 vide annexure P-15.
3. According to the operative portion of Judgment dated 10.3.2011, respondents were directed to consider the case of the petitioner for absorption against an existing vacancy of Senior Technician in the Corporation, in the first instance and in case no post was available in the Corporation, in that eventuality, in other Government Department/ Board/ Corporation within three months from the date of production of a copy of the judgment. Petitioner has not been absorbed against exiting vacancy. The post of Workshop Instructor (Electronics) was available only after 17.6.2012. Principal, Government Polytechnic Kandaghat has not accepted the joining of the petitioner on one pretext or the other. Matter has remained under correspondence depriving the petitioner of his livelihood with effect from 10.3.2011 till his date of joining i.e. 7.12.2012.
4. Mr. Rakesh Dhaulta, Advocate, has vehemently argued that the petitioner can not be granted salary for this period on the principle of 'no work no pay'. In this case, petitioner was always ready and willing to work in the respondent-Corporation or any other Department as per Judgment dated 10.3.2011. Petitioner has not been absorbed in the respondent-Corporation immediately. His joining has been delayed arbitrarily. Thus, principle of 'no work no pay' is not at all attracted in this case.
::: Downloaded on - 15/04/2017 18:27:19 :::HCHP 45. Their Lordships of the Hon'ble Supreme Court in Union of India vs. K.V. Jankiraman reported in (1991) 4 SCC 109, have held as under:
24. It was further contended on their behalf that the normal rule .
is "no work no pay". Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elemen- tary rule that a person is to be paid only for the work he bas done and not for the work he has not done.
As against this, it was pointed out on behalf of the concerned employ- ees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed Under suspension. When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly.
25.r We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.
6. Accordingly, the present petition is allowed. Respondents are directed to pay and release to the petitioner, salary with effect from March, 2011 to November 2012, within a period of eight weeks from today, with interest @ 8.5% per annum. Pending applications, if any, are also disposed of.
(Rajiv Sharma) Judge (Sureshwar Thakur) Judge June 26, 2015 (vikrant) ::: Downloaded on - 15/04/2017 18:27:19 :::HCHP