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
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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.
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5. 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.
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7. 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.
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8. 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
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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
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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.