Case: Burn Standard Company Limited and Another Vs. Tarun Kumar Chakraborty and Others

This appeal presents an instance of application of the rule, "no work, no pay" as well as the exception to the said rule. In response to an advertisement inviting applications for the post of Deputy Manager, Accounts (Project), the first respondent who was employed with some other management, applied to the appellant Company on 25-2-1983. He was selected and a letter of appointment was issued to him on 23-5-1984. Between the said date and 22-10-1984, correspondence between the first respondent and the appellant is brought on record but it is not necessary to refer to the same because the appellant had agreed to extend the time till 22-10-1984 to enable the first respondent to join the service. It is not in dispute that, on that date, the first respondent reported for duty but he was not allowed to work nor was he paid any salary from that date. It appears that the appellant was involved in litigation in the Calcutta High Court, with the Burns Standard Officers Association being Civil Rule No. 4543(W) of 1982. In the said proceedings, a learned Single Judge of the High Court at Calcutta passed the following order: "Till the disposal of this application, no appointment by way of direct recruitment is to be made in respect of non-selection post without the leave of this Court." * It is not in dispute that the post to which the first respondent was appointed is a non-selection post. Subsequently, that order came to be modified on 13-8-1984. The relevant portion of the modified order reads as under : "Meanwhile no appointment by way of direct recruitment is to be made in respect of non-selection posts without giving a notice of at least seven days to the petitioners Association. If there is any objection raised by the Association then the Association shall be at liberty to mention this matter before this Court." * It was by virtue of the said orders of the High Court, it is contended, the appellant was in a fix to permit the first respondent to join the service when he reported on 22-10-1984. The first respondent having found himself in an unenviable position of leaving the earlier job and joining the service in the appellant Company and being without salary filed a writ petition [CR No. 19272(W) of 1984] praying, inter alia, for a direction to the appellant to allow him to join the post of Deputy Manager, Accounts (Project) and also claiming salary with effect from 22-10-1984. On the said writ petition, on 27-12-1984, a learned Single Judge of the Calcutta High Court passed an order, which reads thus: "In the meanwhile, the respondents are directed not to fill up the vacancy for the post of Deputy Manager, Accounts (Project) until the rule is culled out." * Having failed to get any relief, the first respondent filed a second writ petition, Civil Order No. 13315(W) of 1985, praying for a direction to the appellant to pay his salary for the post of Deputy Manager, Accounts (Project) with effect from 22-10-1984. On 18-9-1985, a learned Single Judge issued the following directions: "In the meantime, the respondents are directed to pay salary to the petitioner including arrears, if any, as admissible in law. This order is passed upon consideration of the facts and the circumstances of the case upon hearing the submissions made on behalf of the parties." * The appellant carried that order in appeal before a Division Bench. The appeal was admitted and, it is stated, that the order under appeal was stayed. By order dated 11-4-1989, the writ appeal was disposed of directing the learned Single Judge to dispose of the writ petitions filed by the first respondent expeditiously. Accordingly, those writ petitions were allowed on 22-12-1995. The appellant questioned the correctness of that order in FMAT No. 371 of 1997. The Division Bench of the High Court which heard the appeal, declined to interfere with the order passed by the learned Single Judge and dismissed the appeal on 14-8-1997. It is from that order of the Division Bench that the present appeal arises. Mr. Altaf Ahmed, learned Additional Solicitor-General contended that the reason why the first respondent was not allowed to join the service was because it was advised by its counsel that in view of the orders of the learned Single Judge, the first respondent could not be permitted to join the service. To avert any complication, the appellant, it is submitted, filed an application in the writ petition filed by the Association praying to implead the first respondent and seeking permission to allow him to join the service but no order was passed by the Court on the said application though the matter was being heard from time to time. Ultimately, submits the learned Additional Solicitor-General, on a settlement being reached between the Company and the Association, the writ petition filed by the Association was withdrawn on 12-10-1988 and till then, the appellant had reasonable cause for not permitting the respondent to join service and, therefore, the Company cannot be burdened with the payment of salary for the said period. Mr. Jaideep Gupta, learned counsel appearing for the first respondent, on the other hand, took us through various orders passed by the Court in different proceedings and submitted that there was no absolute bar on the appellants to permit the first respondent to join the service and as they are at fault, therefore, they must pay salary to the first respondent for the period commencing from 12-10-1988 till 15-5-1997 when the first respondent was permitted to join the service. The question is whether the first respondent is entitled to his salary for the period from 12-10-1988 to 15-5-1997. It is no doubt true that the first respondent did not work during that period and, without anything more, he cannot claim salary for the said period on the principle "no work, no pay". But in this case, he reported to the appellants to join service on 12-10-1988 but was not allowed to do so till 15-5-1997. It is not on account of any fault of the first respondent that he was kept out of service and not permitted to work by the appellants. The appellants endeavoured to justify their action on the ground that due to pendency of case filed by the Association they believed that they could not permit him to join duty except on pain of facing contempt proceedings and that they took all possible steps to help the first respondent - first by taking legal advice and secondly by seeking permission of the Court - as such they had reasonable cause for not allowing him to join service. The said period can conveniently be divided into two spans, first commencing from 22-10-1984 to 12-10-1988 when the writ proceedings initiated by the Association terminated on being withdrawn and second from 12-10-1988 till 15-5-1997 when the first respondent was permitted to join the service. Evidently during the second period the appellant had no justification much less any impediment in law to permit the first respondent to join the service. Having regard to the circumstances indicated above, we are inclined to take the view that the appellants had reasonable ground to believe that the first respondent could not be permitted to join the service during the period first mentioned in view of the pendency of the writ petitions filed by the Association against them and in view of various interim orders passed by the courts and were supported in that view by legal advice. But for the period commencing from 12-10-1988 till 15-5-1997 there is absolutely no reason why the first respondent was not permitted to join the service. For this period, the first respondent is entitled to receive his full salary with usual allowances admissible to the post of Deputy Manager, Accounts (Project) and if the salary for the said post has been revised during that period, he will be entitled to the same and also to all consequential benefits permissible for the said period.

Decision:
1[ds]It is no doubt true that the first respondent did not work during that period and, without anything more, he cannot claim salary for the said period on the principle "no work, no pay". But in this case, he reported to the appellants to join service on 12-10-1988 but was not allowed to do so till 15-5-1997. It is not on account of any fault of the first respondent that he was kept out of service and not permitted to work by the appellants. The appellants endeavoured to justify their action on the ground that due to pendency of case filed by the Association they believed that they could not permit him to join duty except on pain of facing contempt proceedings and that they took all possible steps to help the first respondentfirst by taking legal advice and secondly by seeking permission of the Courtas such they had reasonable cause for not allowing him to join serviceThe said period can conveniently be divided into two spans, first commencing from 22-10-1984 to 12-10-1988 when the writ proceedings initiated by the Association terminated on being withdrawn and second from12-10-1988till 15-5-1997when the first respondent was permitted to join the service.Evidently during the second period the appellant had no justification much less any impediment in law to permit the first respondent to join the service. Having regard to the circumstances indicated above, we are inclined to take the view that the appellants had reasonable ground to believe that the first respondent could not be permitted to join the service during the period first mentioned in view of the pendency of the writ petitions filed by the Association against them and in view of various interim orders passed by the courts and were supported in that view by legal advice. But for the period commencing from12-10-1988till 15-5-1997there is absolutely no reason why the first respondent was not permitted to join the service. For this period, the first respondent is entitled to receive his full salary with usual allowances admissible to the post of Deputy Manager, Accounts (Project) and if the salary for the said post has been revised during that period, he will be entitled to the same and also to all consequential benefits permissible for the said period.