Patna High Court - Orders
Amit Kumar vs The Uttar Bihar Kshetriya Gram on 16 October, 2014
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
Patna High Court CWJC No.14510 of 2010 (7) dt.16-10-2014
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14510 of 2010
======================================================
Amit Kumar
.... .... Petitioner/s
Versus
The Uttar Bihar Kshetriya Gramin Bank & Ors.
.... .... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ranjan Kr.Dubey
For the Respondent/s : Mr. Prabhakar Jha
======================================================
CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
C.A.V. ORDER
7 16-10-20141. I have already heard the learned senior counsel, Mr. S.S.Dvivedi for the petitioner.
2. This writ application has been filed by the petitioner for directing the respondents to pay the arrears of salary admissible to the mother of the petitioner since 2001 upto date of her death dated 05.05.2008 including the emoluments, all kinds of allowances, admissible increments and promotions including the gratuity, leave encashment and G.P.F.. A counter-affidavit has been filed on behalf of the respondents.
3. According to the petitioner, the petitioner's father was appointed Manager of Vishunpurwa Branch of Champaran Kshetriya Gramin Bank who died during service and petitioner's mother, Smt. Madhuri Kumari was appointed on compassionate ground as Clerk-cum-Cashier on 03.07.1989. She worked to the satisfaction of the respondents. Lastly, she was Patna High Court CWJC No.14510 of 2010 (7) dt.16-10-2014 2 posted at Sugauli branch of the Bank in September, 2001 where she was attacked with severe paralysis. She reported the concerned respondents and prayed for financial support. However, nothing was paid. She took loan of Rs.2,50,000 from her provident fund account. Thereafter, she filed application for her transfer from Sugauli branch to any other branch. In the said application, she stated that it was impossible for her to move on account of paralysis. Thereafter, a medical board was constituted to examine the physical condition of the petitioner's mother wherein it was found that she was suffering from 70% of disability. Ultimately, she filed an application to rejoin again on duty in 2007. In response to the said application of the petitioner's mother, again medical board was constituted. Thereafter, she received a letter dated 20.06.2007 informing the petitioner's mother that she has been declared not physically fit and mentally alert and accordingly, she was not permitted to join in service. During this period, the petitioner continued to meet the authorities of the Bank for compassionate appointment and to pay the salary of Smt. Madhuri Kumari. Ultimately, she died on 05.05.2008. According to the petitioner, the petitioner and his sister are entitled to receive the admissible arrears of salary of Smt. Madhuri Kumari. Thereafter, various letters were sent to the authorities as Patna High Court CWJC No.14510 of 2010 (7) dt.16-10-2014 3 contained in Annexure 10. Subsequently, partial payments were made towards provident fund but the arrear of salary was not paid. The leave encashment amount of Rs.38,829 and G.S.L.I. amount of Rs.96,760 were adjusted in the loan amount. A separate writ application being C.W.J.C. No.12811 of 2009 is still pending which is filed by the petitioner for appointment on compassionate ground.
4. A counter-affidavit has been filed by the respondents, Bank alleging that all the admissible dues have been paid to the petitioner and so far arrears of salary from 04.09.2001 till 05.05.2008 is concerned, the petitioner's mother was absent from the duty without leave sanctioned, therefore, her absence was unauthorized and she died during that period. In such circumstances, due to unauthorized absence, the salary of the petitioner's mother for the aforesaid period was not paid as per norms "no work no pay".
5. The learned senior counsel, Mr. S.S.Dvivedi submitted that the action of the respondents is arbitrary. The respondents had the knowledge that the petitioner's mother was attacked with paralysis and in such circumstances, on technical grounds, for obtaining leave, the salary of the petitioner's mother could not be withheld. The learned counsel further placed Section Patna High Court CWJC No.14510 of 2010 (7) dt.16-10-2014 4 47 of The Persons with Disabilities(Equal Opportunities etc.) Act, 1995 and submitted that the petitioner's mother could not have been denied the salary on the ground that she was disabled or unable to work in the said post. If she was unable to work in the said post in which she was appointed, she could have been shifted to some other post with the same pay scale and service benefits and if it was not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
6. Admittedly, the mother of the petitioner was appointed on compassionate ground in the year 1989. It is also admitted by the respondents that she worked till September, 2001 in the post in which she was appointed. It is admitted fact that thereafter she did not work as she was attacked with paralysis. In the year 2004, her disability was found to be 70% and lastly when she filed application to rejoin in the post in the year 2007, she was found not fit either physically or mentally for the post and ultimately she died on 05.05.2008. Therefore, it is admitted fact that during the period for which the salary is claimed, the petitioner's mother never worked as she was unable to even attend the office of the Bank where she was posted. She herself reported Patna High Court CWJC No.14510 of 2010 (7) dt.16-10-2014 5 that she was unable to move.
7. Section 47 of The Persons with Disabilities(Equal Opportunities etc.) Act, 1995 reads as follows:
"47. Non-discrimination in Government employment- (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
8. In view of this provision, the respondents-
authorities of the Bank could not have dispensed with or reduced in rank who acquires disability during his service. In the present case, it is not the case of the petitioner that petitioner's mother rank was reduced or that she was able to work even though her disability was 70% in the year 2004. It is also not the case that she Patna High Court CWJC No.14510 of 2010 (7) dt.16-10-2014 6 ever applied for sanction of her leave. According to the statements in the writ application, she only informed the authorities. It is admitted fact that her leave was never sanctioned. Now, therefore, she remained absent without leave. As stated above, she never joined the service and worked in the post. It is not the case that the petitioner's mother had been dispensed with. She was never terminated from the service nor she was suspended. Further, no disciplinary proceeding was initiated against her. In other words, she remained the employee of the Bank till her death. Therefore, there was no question of her shifting to some other post with the same pay scale and service benefits arise. It is not the case of the petitioner that she was able to hold or work in any other post having same pay scale and service benefit. Further, according to the second proviso, keeping the petitioner on a supernumerary post is concerned, it arises only when it is not possible to adjust the employee against any post. This adjustment and/or keeping the employee on a supernumerary post is dependent on the capacity to work of the petitioner. Here, nowhere the petitioner's mother ever desired to work in any other post. It is not the case of the petitioner that her mother was competent to work in any other post but the respondents refused her to continue in the said other post.
Patna High Court CWJC No.14510 of 2010 (7) dt.16-10-20147
9. The dictionary meaning of the word "supernumerary" is that someone who is not part of the regular staff but who can be called on to work or serve. Secondly, someone or something i.e. extra or surplus to requirements. Now, therefore, in view of this dictionary meaning of this word, the respondents never treated the petitioner as not a part of the regular staff or a surplus staff. The only claim of the petitioner to receive the salary for the period for which she never worked. As stated above, so far keeping the petitioner in some other post or in supernumerary post does not arise. According to the petitioner himself, her mother was not competent to work in any post and she never joined in the service. There is no provision in this Act also to the effect that even if the person disabled did not work in any post, she will be entitled to receive the salary.
10. The Hon'ble Supreme Court in the case of Food Corporation of India and others v. Ashis Kumar Ganguly and others, (2009) 7 Supreme Court Cases 734 has held that writ of mandamus can be issued when there exists a legal right in petitioner and there is corresponding legal duty in respondent. Likewise, in the case of State of West Bengal v. Subhas Kumar Chatterjee and others, (2010) 11 Supreme Court Cases 694, the Supreme Court has held that mandamus Patna High Court CWJC No.14510 of 2010 (7) dt.16-10-2014 8 cannot be issued to State to act contrary to law.
11. In view of the above facts as discussed above, Section 47 of the Act of 1995 relied upon by the learned counsel for the petitioner is not applicable in the case. The respondent's case is that she never worked, therefore, no payment has been made. No other provision has been pointed out before the court which creates a legal right in favour of the petitioners' mother entitling her to receive the salary even if she was unable to work and she did not work. Therefore, when there was no legal right, there is no question of corresponding legal duty in the respondents arises.
12. It is settled principles of law that the words "for any other purpose" occurring in Article 226 of the Constitution of India enables the High Court to exercise powers for the enforcement of legal rights which are not fundamental rights but when there is no question of any violation of fundamental rights and the jurisdiction of the High Court is invoked by relying on the words "for any other purpose", the High Court will only interfere with grave and exceptional cases of an urgent nature where there is no suitable remedy adequate to meet the needs of the case. In the present case, as has been stated above, it is not the fundamental right conferred on petitioner under Patna High Court CWJC No.14510 of 2010 (7) dt.16-10-2014 9 Chapter III of the Constitution to receive salary without work, therefore, the petitioner is claiming the relief relying on the words "for any other purpose" occurring in Article 226 of the Constitution of India. I have already discussed above that the petitioner herein also failed to prove any legal right exists in the petitioner's mother or the petitioner and there is corresponding legal duty in the respondents.
13. In view of the above facts, I find no merit in this writ application and thus, this writ application is dismissed.
(Mungeshwar Sahoo, J) Saurabh/-
U