Indian Kanoon - Search engine for Indian Law

Jammu & Kashmir High Court - Srinagar Bench

Ashiq Hussain Dar & Ors vs Union Territory Of Jk & Ors on 19 March, 2020

Author: Ali Mohammad Magrey

Bench: Ali Mohammad Magrey

         IN THE HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR


                             WP(C) No. 742/2020
                            CM No. 1591/2020 c/w
                             SWP No. 2648/2018
                            CCP(S) No. 402/2019

                                                      Reserved on: 17th of March, 2020.
                                                    Pronounced on: 19th of March, 2020.


Ashiq Hussain Dar & Ors.
                                                                 ..... Petitioner(s)
                                  Through: -
                          Mr Altaf Haqani, Advocate.

                                       V/s

Union Territory of JK & Ors.
                                                               ..... Respondent(s)
                                Through: -
                        Mr Shah Aamir, AAG with
                     Ms Sharaf Wani, Assisting Counsel.

CORAM:
                  Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
                                  JUDGMENT

01. The precise case set up by the petitioners is that they are working as Class-IV employees in the respondent Department on substantive basis from the last 15 years. It is stated that a controversy regarding the correct allotment of General Provident Fund (GPF) Computer Code numbers of Class-IV employees working in the offices of the Block Medical Officers, under the control of respondent No.5, was raised by the respondent No.4 vide communication dated 22nd of January, 2018. The said communication, as stated, advised that the GP fund contribution of the employees in question, till further instructions, may be stopped. This communication was followed by another letter dated 30th of January, 2018 directing the respondent No.5 for stoppage of salary of the Class-IV employees mentioned in letter dated 29th of January, 2018. The petitioners plead that since the necessary enquiry Page 2 of 8 WP(C) No. 742/2020;

SWP No. 2648/2018;

regarding correct allotment of the GP Fund Computer Code numbers is pending before the respondents and has not been concluded, therefore, the respondents could not have proceeded to withhold the salary of the petitioners since the month of December, 2017, that too, without issuing any formal order to the petitioners. It is contended that the petitioners are continuing to discharge their duties uninterruptedly at their respective places of posting, however, their salary is not being released without there being any rhyme or reason. The petitioners claim that despite they having approached the respondents repeatedly, their salary was not released constraining them to approach this Court through the medium of writ petition bearing SWP No.2648/2018, wherein they prayed for the grant of following relief(s) in their favour:

"i) A writ, order or direction including one in the nature of Mandamus, commanding upon the respondents to allow the petitioners to continue in service against their respective posts and maintain their GPF Accounts in accordance with rules;

ii) A writ, order or direction including one in the nature of Mandamus, commanding upon the respondents to release the salary of the petitioners alongwith the arrears as has been kept withheld;

iii) A writ, order or direction including one in the nature of Mandamus, commanding upon the respondents not to cause any interference into the services of the petitioners:

iv) Any other writ, order or direction which the Hon'ble Court may deem fit and proper in the facts and circumstances of the case may also be passed in favour of the petitioners and against the respondents."

02. When the matter came up for consideration on motion hearing, i.e., 16th of November, 2018, this Court, while issuing notice to the respondents, directed the respondent No.3 to ensure release of withheld salary of the petitioners in accordance with the rules governing the field. When the respondents did not implement the said order passed by this Court, the petitioners filed contempt petition bearing CCP(S) No.402/2019 for seeking implementation of the same. In the said contempt petition, on notice having Page 3 of 8 WP(C) No. 742/2020;

SWP No. 2648/2018;

been issued, the respondents filed a compliance report on 4th of February, 2020, annexing therewith order No. 381-NG of 2019 dated 29th of August, 2019 issued by the Director, Health Services, Kashmir, whereby the claim of the petitioners has been rejected. It is this order dated 29 th of August, 2019 that has been assailed by the petitioners in WP(C) No.742/2020. In that view of the matter and in order to set the records straight, the earlier petition filed by the petitioners, being SWP No.2648/2018 as also the contempt petition bearing CCP(S) No.402/2019 have, thus, turned infructuous, therefore, both these matters shall stand disposed of as such. That being so, this Court is, now, left to decide only WP(C) No.742/2020 whereby challenge has been thrown by the petitioners to order dated 29th of August, 2019 rejecting their claim for release of salary.

03. Objections stand filed on behalf of the respondents, resisting and controverting the averments made by the petitioners in their petition. It is stated that as per the records available in the Department, the District Fund Officer, Bandipora, identified 129 Class-IV employees, including the petitioners herein, who were drawing salary from the Medical Blocks, Hajin; Bandipora; and Gurez of District Bandipora, but were holding fictitious GP Fund Account numbers as the same did not match with the record of the District Fund Office, Bandipora. Consequently, as stated, the Chief Medical Officer, Bandipora, was instructed to withhold the salary of all the said 129 Class-IV employees. The respondents contend that in order to conduct an enquiry into the matter and to take further course of action, an Inquiry Committee was constituted vide order dated 3rd of February, 2018, besides, the matter was also referred to Crime Branch, Kashmir, as is evidenced by communication dated 10th of May, 2018 for further investigation. It is pleaded that, thereafter, in terms of Government order No. 672-HME of 2018 dated 7th Page 4 of 8 WP(C) No. 742/2020;

SWP No. 2648/2018;

of December, 2018, the Administrative Department separately constituted a designated committee with the task to look into the matter in the backdrop of report of the District Fund Office, Bandipora, regarding possession of fictitious GP Fund Account numbers by 129 persons working as Class-IV employees in the three Medical Blocks, viz. Hajin; Bandipora; and Gurez of District Bandipora. It is further submitted that during the course of investigation conducted by the Crime Branch, Kashmir, it came to fore that all the said 129 Class-IV employees of District Bandipora possess fictitious GP Fund Account numbers with allotted Computer Code 7501 and that these persons have managed their appointments fraudulently through a well-knit criminal conspiracy in league with some officers/ officials of the Department. The respondents have proceeded to state that the Departmental Inquiry is still going on in the matter in order to ascertain the genuineness or otherwise of the appointment of the petitioners as well as that of the other similarly circumstanced Class-IV employees, besides, to identify the officers/ officials, if any, found involved for facilitating such appointment orders to these persons. It is also informed that the Crime Branch, Kashmir, has also registered a criminal case in the matter and has started further investigation. In this context, the respondents have prayed that the petition of the petitioners deserves to be dismissed.

04. Heard the learned counsel for the parties, perused the records made available by the learned counsel for the respondents and considered the matter.

05. At the first blush, what requires to be stated is that there is no dispute to the fact that the petitioners are discharging their duties in the respondent Department as Class-IV employees in different Medical Blocks of District Bandipora for quite a long time. However, there appears to have surfaced a Page 5 of 8 WP(C) No. 742/2020;

SWP No. 2648/2018;

controversy with regard to the genuineness or otherwise of 129 number of Class-IV employees working in the respondent Department, including the petitioners herein for which a Departmental Inquiry is stated to have been ordered by the respondents which is pending final outcome. It has also come to fore that the said case landed before the Crime Branch, Kashmir, for investigation, where too the matter is stated to be pending investigation. Admittedly, till date, neither any final report nor a formal order has been issued by the respondents declaring the appointment of the aforesaid 129 Class-IV employees, including the petitioners herein, as fake or otherwise. In this backdrop, the question that arises for consideration of the Court is that since the petitioners are, admittedly, discharging their duties in the respondent Department as Class-IV employees and the matter regarding the genuineness or otherwise of their appointment as Class-IV employees is still under inquiry before the concerned authorities, are the respondents justified in law to stop the salary of the petitioners in lieu of the services being rendered by them in the respondent Department.

06. The answer to the above formulated question has to be in negative. This is so because in case the said course, as adopted by the respondents, is allowed, that would amount to 'Begar'. The word 'Begar' is not a word of common use in English language, instead, it is a word of Indian origin which, like many other words, has found its way in the English vocabulary. It is very difficult to formulate a precise definition of the word 'Begar', but there can be no doubt that it is a form of forced labour under which a person is compelled to work without receiving any remuneration. It is also described by some as labour or service exacted by a Government or person in power without giving remuneration for it. Wilson's Glossary of Judicial and Revenue Terms describes the word 'Begar' as a forced labourer pressed to Page 6 of 8 WP(C) No. 742/2020;

SWP No. 2648/2018;

carry burthens for individuals or the public. 'Begar' may, therefore, be loosely described as labour or service which a person is forced to give without receiving any remuneration for it. This definition was accepted by a Division Bench of the Bombay High Court, in case titled 'S. Vasudevan v. S.D. Mital'; 'AIR 1962 Bom 53'. 'Begar', thus, clearly is a form of forced labour and all forms of forced labour are unconstitutionally prohibited by Article 23 of the Constitution of India. This article strikes at forced labour in whatever form it may manifest itself, because it is violative of human dignity and is contrary to basic human values. In the case on hand, the respondents, as per their own admission, are extracting services from the petitioners as Class-IV employees, but are not paying them any salary/ wages/ remuneration for the same solely on the ground that inquiry is pending against them as regards the genuineness or otherwise of their appointment, thereby subjecting the petitioners to 'Begar', moreso, when there is no final inquiry report or formal order declaring the petitioners as having been fraudulently appointed. In absence of a final decision in the inquiry proceedings with reference to the case of the petitioners, coupled with the factum of the petitioners discharging their duties in the respondent Department continuously, the respondents cannot retain the salary of the petitioners for inordinate time. The respondents, in law, were/ are obliged to take all possible steps so as to ensure that the inquiry proceedings pending against the petitioners are taken to their logical conclusion expeditiously and, accordingly, take a decision in the matter on the basis of said findings of the inquiry committee. Instead of doing so, the respondents have chosen to withhold the salary of the petitioners which cannot be countenanced by law.

07. The law is that a person discharging his duties on the appointed post becomes legally eligible to receive the salary attached to the said post in Page 7 of 8 WP(C) No. 742/2020;

SWP No. 2648/2018;

accordance with the rules governing the field. Admittedly, the petitioners have been discharging their duties ever since their joining the respondent Department. It is also well settled that salary is the property of an employee and that the right to receive the salary is a fundamental right of an employee as enshrined under Article 19 of the Constitution of India. In the case on hand, the only reason for non-payment of the salary in favour of the petitioners is pendency of inquiry with reference to genuineness or otherwise of the appointment of the petitioners. As already stated, the petitioners are discharging their duties in the respondent Department and not paying them salary would tantamount to taking 'Begar' from the petitioners which, as observed hereinabove, is forbidden under Article 23 of the Constitution of India. This view is fortified by a judgment of law rendered by a Co-Ordinate Bench of this Court in Jammu wing of the High Court in case titled 'Amarmeet Singh V. State of JK & Ors.', reported as '2014(3) JKJ 80 (HC)'.

08. The judgments referred to and relied upon by the learned Additional Advocate General, representing the respondents, are not applicable to the case on hand as, till date, there is no declaration from any inquiry proceedings that the very appointment of the petitioners is an outcome of fraud.

09. Viewed in the context of what has been said and done above, the petition of the petitioners is allowed and, by a 'Writ of Certiorari', the impugned order bearing No. 381-NG of 2019 dated 29th of August, 2019 issued by respondent No.2, insofar as it relates to the present petitioners, is quashed. The respondents, by a 'Writ of Mandamus', are directed to release the withheld as well as the future salary of the petitioners in lieu of the services rendered/ to be rendered by them in the respondent Department as Class-IV employees, notwithstanding pendency of any inquiry against them. Having Page 8 of 8 WP(C) No. 742/2020;

SWP No. 2648/2018;

said so, nothing observed or ordered hereinabove, shall preclude the respondents from taking the inquiry regarding genuineness or otherwise of the appointment of the concerned Class-IV employees, including the petitioners herein, to its logical conclusion as well as from taking the subsequent necessary follow up action with respect thereto on the basis of the final outcome of the said inquiry in accordance with law.

10. Writ petition bearing WP(C) No.742/2020 shall stand disposed of as above, alongwith the connected CM.

11. As regards the clubbed writ petition registered as SWP No.2648/2018 and contempt petition CCP(S) No. 402/2019, both filed by the petitioners as well, same shall stand disposed of as recorded in Paragraph No.2 of this judgment. Registry to place a copy of this judgment on each file.

12. Bench Secretary of this Court is directed to forthwith return the records to the learned Additional Advocate General against proper receipt.

(Ali Mohammad Magrey) Judge SRINAGAR March 19th, 2020 "TAHIR"

                                  i.    Whether the Order is reportable?        YES/NO
                                  ii.   Whether the Order is speaking?          YES/ NO




TAHIR MANZOOR BHAT
2020.03.19 14:06
I attest to the accuracy and
integrity of this document