BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date: 01/09/2006 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI Writ Petition (MD)No.4092 of 2004 and W.P.M.P.(MD)No.4112 of 2004 T.Arivarasupandian ... Petitioner Vs. 1.The Director of Public Libraries, 737/1, Anna Salai, Chennai - 600 002. 2.The Secretary/District Library Officer, No.3, Kasturibai Road, N.R.T.Nagar, Thenji - 625 531 ... Respondents PRAYER Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Mandamus, to direct the 2nd respondent to pay salary from May 2003 to till date to the petitioner. !For Petitioner ... Mr.M.Ajmal Khan ^For Respondents ... Mr.K.Baskaran Additional Government Pleader. :ORDER
This writ petition is filed for a direction against the second respondent
to pay salary from May 2003 to till day. The petitioner, who was working as
Accountant in the District Library Office, Theni, was transferred to Chennai.
That transfer order was challenged by the petitioner before the Tamil Nadu
Administrative Tribunal by filing O.A.No.1915 of 2003, challenging the order on
various grounds including that the first respondent, who has passed the transfer
order has no jurisdiction. Ultimately, the said O.A. came to be allowed on
21.10.2003 holding that the first respondent has no jurisdiction to pass the
transfer order and the transfer order was set aside. Aggrieved by the said
order of the Tribunal, the first respondent has filed writ Petition in
W.P.No.1919 of 2004. The Division Bench of this Court has dismissed the writ
petition on 30.04.2004 holding that as per Rule 42 of the Madras Public Library
Rules, the District Library Authority is the person responsible for the
appointment of the staff, proper control and therefore, in the absence of any
rule empowering the first respondent namely the Director of Public Libraries to
make transfer from one unit to another unit, the first respondent cannot be said
to be the competent authority to pass orders of transfer.
3. The Division Bench of this Court while upholding the order of the
Tribunal and considering various facts has held as follows:
“Though it is said a common seniority list is prepared, nothing is placed
before the Tribunal, showing that by the transfer,the right of promotion to the
individual would not be affected. Considering this fact as well as the absence
of rules, the Tribunal had set aside the order of transfer, in which we are
unable to find any error of law, warranting our interference. It is also made
clear in the Tribunal’s order, considering the inconvenience caused to the
applicant and therefore, the grievance of the writ petitioners is not justified,
based on any legal ground. For the foregoing reasons, we find no infirmity in
the order passed by the Tribunal and in this view, the same is confirmed.”
4. It is also admitted that the said order of the Division Bench has
become final. It is also the case of the petitioner that inspite of the order
passed by the Division Bench of this Court, the petitioner was not reinstated at
Theni, which has resulted the petitioner in filing a Contempt petition in
Cont.P.No.550 of 2004 and it was during the pendency of the Contempt petition,
the petitioner was issued an order on 02.08.2004, wherein permission was granted
to the petitioner to join with effect from 12.08.2004 and it was thereafter
recording the said fact, the Contempt petition came to be closed. In view of the
said facts, the petitioner has made many representations to the respondents to
pay salary for the period between 14.05.2003 to 11.08.2004. The representations
were made on 12.08.2004, 02.09.2004 and 19.10.2004. Inspite of the repeated
representations neither the representations were considered nor the petitioner
is paid the salary for the said periods.
5. In view of the same, the present writ petition is filed for the
reasons stated above.
6. Mr.Ajmal Khan, learned counsel for the petitioner while taking me to
various facts would also place reliance on the judgment of the Hon’ble Apex
Court rendered in Srikantha S.M. Vs. Bharath Earth Movers Ltd., reported in
(2005) 8 SCC 314 for the proposition that the respondent cannot deny the right
for the said payment of the petitioner on the ground of “no work no pay”.
7. The Hon’ble Apex Court considering such a situation has held that the
principle of “no work no pay” will not apply in cases where the employee was
willing to work and the employer has refused to provide employment. The Hon’ble
Supreme Court while dealing with the issue has made it very clear by referring
the various earlier judgments in the following terms:
“We must frankly admit that we unable to uphold the contention of the
respondent company. A similar situation had arisen in J.N.Srivastava and a
similar argument was advanced by the employer. The Court, however, negatived
the argument observing that when the workman was willing to work but the
employer did not allow him to work, it would not be open to the employer to deny
monetary benefits to the workman who was not permitted to discharge his duties.
Accordingly, the benefits were granted to him. In Shjambhu Murari Singha II
also, this Court held that since the relationship of employer and employee
continued till the employee attained the age of superannuation he would be
entitled to “full salary and allowances” of the entire period he was kept out of
service. In Balram Gupta in spite of specific provision precluding the
government servant from withdrawing notice of retirement, this Court granted all
consequential benefits to him. The appellant is, therefore, entitled to salary
and other benefits.”
8. Therefore, the dictum laid down by the Hon’ble Supreme Court that “no
work no pay” will not apply in cases where the employee was willing to do the
work and the employer has not provided employment and the same has become the
rule. In the present case, as factually narrated above, the order of transfer
has been effected to the petitioner on 14.05.2003 and the petitioner has stated
before the Court that he has been willing to work in the previous place. By due
process of law it should be deemed that ever since the date of impugned order of
transfer till he was replaced to the same place, and the petitioner was willing
to work.
9. In view of the same, there is absolutely, no impediment for the
respondents to pay salary to the petitioner for the said period, for the course
of action, the learned Additional Government Pleader has no answer. Even
though, no counter has been filed in this case, the learned additional
Government Pleader would fairly submit that the facts stated in the writ
petition are true and there is no denial about the facts.
10. In view of the said factual position as also the legal position
regarding this case, I am of the considered view that the petitioner is entitled
for the relief claimed for.
11. In view of the same, the writ petition stands allowed. The respondents
are directed to pay salary to the petitioner for the period from 14.05.2003 till
the date of reposting of the petitioner on 11.08.2004 as Accountant and such
salary shall be paid to the petitioner within a period of 12 weeks from the date
of receipt of a copy of this order. No costs. Consequently, connected W.P.M.P.
is closed.
sms
P.JYOTHIMANI,J.
To
1.The Director of Public Libraries,
737/1, Anna Salai,
Chennai – 600 002.
2.The Secretary/District Library Officer,
No.3, Kasturibai Road,
N.R.T.Nagar,
Thenji – 625 531