Madhya Pradesh High Court
Satish Kumar Khare vs The State Of M.P. And Ors on 5 January, 2010
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Writ Petition No : 3227 OF 2002
SATISH KUMAR KHARE
- V/s -
STATE OF MADHYA PRADESH AND OTHERS
Present : Hon'ble Shri Justice Rajendra Menon.
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Ku. Namrata Kesharwani, learned counsel for the petitioner.
Shri Rahul Jain, learned Deputy Advocate General for
respondent nos. 1, 2, 3 and 5.
Shri K.C.Ghildhyal, learned counsel for respondent no.4.
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ORDER
( 05-01-2010) Challenging an order Annexure A-12 dated 11-03-2002, passed by the Collector, Tikamgarh denying wages for certain period and treating the said period on the principle of 'No work No wages' the petitioner has filed this petition.
2. Facts in brief are that the petitioner is a physically handicapped, he is suffering from Polio and the disability certificate available on record indicates that he is permanently disabled to the extent of 40%.
3. Municipal Council, Tikamgarh, issued an advertisement for appointment of Shiksha Karmi Grade-III. Against the post of Assistant Teacher (Science) in Govt. Govt. Higher Secondary School, Tikamgarh, the petitioner submitted his candidature and vide order Annexure A-5 dated 09-03-1999, the petitioner was appointed. On being so appointed, the petitioner submitted his joining to the Principal of the institute and he was permitted to join on 22-03-1999. The petitioner continued to work upto 31-03-1999, when by oral order, the petitioner was prevented from working. The petitioner continued to visit the school and sign the attendance register upto 20-04-1999. When he was prevented from doing 2 so, representation submitted having fallen on deaf ear, the petitioner filed W.P. No. 3439/1999 before this court and a Bench of this court vide order dated 02-08-1999 (Annexure A-11) finding adequate alternative remedy available to the petitioner under M.P. Municipality Shiksha Karmi (Recruitment and Conditions of Service) Rules, 1998 directed the petitioner to take recourse to the alternative remedy. Accordingly, the petitioner preferred an appeal under Rule 12 of the said Rule before the Collector, Tikamgarh and the Collector, Tikamgarh vide order Annexure A-12 dated 11-03-2002 found action of the respondents in preventing the petitioner from working to be illegal and directed for permitting him to join duties. However, for the period intervening, the Collector directed that the same shall be considered on the principle of 'No work No wages'. Being aggrieved by this part of the order treating the intervening period on the basis of no work no wages, this petition has been filed.
4. Ku. Namrata Kesharwani, learned counsel for the petitioner taking me through the order dated 11-03-2002 (Annexure P-12), passed by the Collector emphasized that the Collector having found the action of the respondents to be illegal should have granted full salary for the intervening period, when it was the case of the petitioner that he was always willing to work and it was the illegal action of the respondents which prevented the petitioner from discharging his duties. Inter alia contending that in the facts and circumstances of the case and in the light of the finding recorded by the Collector, in the order in question treating the intervening period as no work no wages is not sustainable, the learned counsel for the petitioner seeks interference into the matter. Placing reliance on the judgment of the Supreme Court in the case of Commissioner, Karnataka Housing Board Vs. C.Muddaiah, (2007) 7 SCC 689, learned counsel for the petitioner submits that in the facts and circumstances of the case, principle of 'No work No wages' cannot be applied and it is a fit case where considering the physical disability of the petitioner, his willingness to discharge the duties and the illegal action of the respondents in preventing the petitioner to discharge his duties relief sought for should be granted.
35. Shri Rahul Jain, learned Deputy Advocate General for the State and Shri K.C.Ghildiyal, learned counsel for respondent nos.4 and 5 have filed return and have objected to the grant of relief mainly on the ground that the petitioner was receiving certain pension i.e. sum of Rs.150/- per month as Samajik Suraksha Pension. That apart respondents by contending that the petitioner has not proved that he was not gainfully employed and therefore not entitled to salary for the intervening period. Further objection raised by the respondents is to the effect that petitioner has not discharged his duties, the Collector has not committed any error. That apart another objection raised is to the effect that the appointment of the petitioner is made by the Incharge Chief Municipal Officer and therefore the appointment being made by incompetent person cannot be enforced.
6. By filing rejoinder the learned counsel for the petitioner has refuted the aforesaid objections and has pointed out that the petitioner has filed a specific affidavit before this court indicating the fact that the petitioner was never gainfully employed during the period in question when he remained out of the employment. It is further stated that Samajik Suraksha Pension of Rs.150/- which the petitioner was getting under the special scheme of the Ministry of Social Welfare Department is only given due to the physical disability of the petitioner and that does not disentitle the petitioner from claiming the salary for the intervening period. As far as the competence of the Incharge Chief Municipal Officer to issue the order of appointment is concerned, the learned counsel for the petitioner invites my attention to the findings in this regard recorded by the Collector in the order in question and pointed out that the Chief Municipal Officer who was incharge at the relevant time has made more than 27 appointments and in all such cases the appointments were recognized and given due consideration by the Municipal Council, all the persons are working and in the case of the petitioner a different discrimination action cannot be adopted, contending that the Collector has already addressed to the said question which is just and reasonable, learned counsel refuted the objections raised by the respondents.
47. Having heard the learned counsel for the parties and on consideration of the facts that have come on record, it is clear that in the order passed by the Collector available on record as Annexure P-12 dated 11-03-1002, the Collector has adverted to consider various aspects of the matter , finding recorded by the Collector is that the petitioner was duly appointed, he was permitted to join duties on 22-03-1999 when all of a sudden without canceling his appointment and without passing any order he was prevented from working, the Collector has found the aforesaid action of the respondents to be wholly illegal and contrary to the settled principles of law, the Collector has also considered the objections of the respondents to the effect that the order of appointment is passed by an incompetent officer, the Collector has found that the Incharge Chief Municipal Officer has appointed more than 27 persons, all these persons are working and no action is taken against them. That being so the Collector has recorded a finding that in appointing the petitioner, the Chief Municipal Officer, who was holding the post in the officiating capacity as Incharge, has not committed any error. The Collector has taken note of the fact that the order passed by the said authority was given effect to the petitioner was permitted to join and until and unless the order is cancelled in accordance to law, the petitioner is entitled to work. Accordingly, the Collector finding the action of the respondents to be illegal and contrary to law, directed for permitting the petitioner to join duties and discharge functions in accordance to the appointment made . However, after having so ordered the Collector without recording any reason has directed for treating the intervening period on the basis of no work no wages, no reason or justification for the same is indicated in the order passed by the Collector.
Normally when a action is found to be illegal and is set aside or direction issued to the contrary, the delinquent is entitled to all the consequential benefits, it is only under exceptional circumstances that consequential benefits of arrears of salary etc are denied. In the present case even though the Collector has not indicated any reason for denying the salary of the intervening period. The respondents in their reply have raised three objections.
58. The first objection is that the order is passed by the incompetent person i.e. Incharge Chief Municipal Officer and therefore, the petitioner cannot take advantage of the same.
9. This objection of the respondents is already addressed to and answered by the Collector as indicated hereinabove. The said order of the Collector is not challenged by the respondents, it having attained finality now in this petition the said objection cannot be reconsidered.
10. The second objection is that the petitioner has not indicated that he has not gainfully employed during the intervening period. Alongwith the rejoinder filed, the petitioner has specifically filed an affidavit indicating that he is a physical handicapped and Samajik Suraksha Pension of Rs.150/- which the petitioner was getting under the special scheme of the Ministry of Social Welfare Department is only given to the physical disability of the petitioner and that does not disentitle the petitioner from claiming the salary for the intervening period.
11. This objection raised to the effect that the petitioner was getting certain pension under Samajik Suraksha Pension Scheme and therefore not entitled to the salary is not sustainable. Samajik Suraksha Pension of Rs.150/- per month is being granted to the petitioner due to physical disability of the petitioner on the basis of certain policy and schemes formulated by the State Govt. and implemented by the Ministry of Social Welfare Department and if the petitioner, considering his physical disability is granted the said pension, salary cannot be denied to the petitioner merely because he is getting certain pension, the aforesaid ground and objection raised by the respondents is found to be unsustainable and rejected. It may further be taken note that the said amount of Rs.150/- which the petitioner was getting when he was out of employment, but after reinstatement of the petitioner in pursuance to the order passed by the Collector, the pension has been discontinued.
12. The third objection is regarding gainful employment of the petitioner, in the present case except for making vague and unspecific averments and allegations, particularly of the employment, the nature of work performed, the establishment where the petitioner was working are not indicated and no material is adduced by the respondents to show as to 6 how and in what manner the petitioner was gainfully employed and earned his wages. In the absence of material to show that the petitioner was gainfully employed and earned wages during the intervening period the benefit of salary to the petitioner cannot be denied. The respondents having failed to prove gainful employment of the petitioner cannot now raise the ground without supporting documentary or other material to substantiate their contention.
13. The Supreme Court in the case of Commissioner,Karnataka Housing Board(supra) has laid down the principles that in a given case if it is found that the person was willing to work and he was illegally and unlawfully prevented for working then the principle of no work no wages may be deviated and in such circumstances direction can be issued to the parties concerned to pay salary to the petitioner. In the present case this court has to take note of certain peculiar circumstances i.e. the petitioner is physical handicapped and he was appointed to the post in question, the appointment is in existence and has not been cancelled in accordance with law, he was willing to work and in fact he was permitted to join and discharge duties for a particular period of time and thereafter the finding recorded is that he was illegally prevented from working. That being so it is a fit case where the salary for the intervening period should be granted to the petitioner as it is a case where even though petitioner was willing to discharge his duties and earn his wages, it was the illegal action of the respondents which prevented the petitioner from discharging his duties.
14. Accordingly, in the facts and circumstances of the case this court is of the considered view that in denying the wages to the petitioner for the intervening period and declining the same on the principle of no work no wage, the Collector concerned has committed a grave error which warrant interference and to that extent the order dated 11-03-2002 passed by the Collector warrants modification and is accordingly modified. This petition is allowed. The Municipal Council respondent nos. 3 and 4 are directed to pay salary and allowance to the petitioner for the post in question during the period when the petitioner remained out of employment i.e. from 1st April 1909 till his joining in pursuance to the 7 order passed by the Collector on 11-03-2002. The aforesaid amount be paid to the petitioner within a period of two months from the date of receipt of the certified copy of this petition.
15. The petition stands allowed and disposed of with the aforesaid without any order so as to cost.
(RAJENDRA MENON) JUDGE hsp.