IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5662 of 2002 =========================================================== Sridhar Sinha, son of late Netram Singh, resident of Village Ramdeo Chak, P.S. and District Jehanabad. .... .... Petitioner Versus 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna. 2. Commissioner cum Secretary, Cabinet Secretariat and Co-ordination Department, Government of Bihar, Patna. 3. Commissioner cum Secretary, Department of Health, Government of Bihar, Patna. 4. Director in Chief, Health Services, Department of Health, Government of Bihar, Patna. .... .... Respondents with Civil Writ Jurisdiction Case No. 13292 of 2002 =========================================================== Sridhar Sinha, son of late Netram Singh, resident of Village Ramdeo Chak, P.S. and District Jehanabad. .... .... Petitioner Versus 1. The State of Bihar through the Commissioner cum Secretary, Department of Health, Government of Bihar, Patna. 2. Director in chief, Health Services, Government of Bihar, Patna. 3. Accountant General, Bihar, Patna. 4. District Provident Fund Officer, Patna. 5. Civil Surgeon cum Chief Medical Officer, Patna. 6. Chief Malaria Officer, Bihar, Patna. 7. Medical Officer, Incharge, Sadar Block, Patna. .... .... Respondents with Miscellaneous Jurisdiction Case No. 534 of 2003 =========================================================== Sridhar Sinha, son of late Netram Singh, resident of Village Ramdeo Chak, P.S. and District Jehanabad. .... .... Petitioner Versus 1. State of Bihar. 2. Mr. Ashok Choudhary, Commissioner cum Secretary, Department of Health, Government of Bihar, Patna. 3. Dr. (Capt) Anil Kumar, Director-in-Chief, Health Services, Government of Bihar, Patna. 4. Dr. Sudhir Kumar Aman, Civil Surgeon cum Chief Medical Officer, Patna. 5. Dr. Om Prakash Khetan, Incharge Medical Officer, Sadar Block, Patna. .... .... Opp. Parties =========================================================== Patna High Court CWJC No.5662 of 2002 dt.25-06-2012 2 For the Petitioners: Mr. Banwari Sharma, Adv. Mr. Shiv Kumar, Adv. For the State: Mr. Prabhakar Tekriwal, G.P-1. CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA CAV JUDGMENT Date: 25-06-2012 Heard learned counsel for the parties. In this writ application, the petitioner has prayed for quashing of the order dated 9.3.2002 passed by the Commissioner and the Secretary to the Health Department of the Government of Bihar rejecting the prayer of the petitioner for payment of salary for the period May, 1992 to December, 2000 as also for a consequential relief by way of a direction to the respondents to make payment of salary of the petitioner for the aforementioned period. The facts giving rise to this writ application lie in a very narrow compass. The petitioner, holding the post of Basic Health Inspector while working at Patna, was transferred by the Civil Surgeon of Patna to Bikram by an order dated 19.12.1989. The said order of transfer was initially stayed on 23.1.1990 but ultimately the petitioner was directed to join at Bikram and was relieved on 20.8.1991 under the order of the Director-in-Chief of the Health Services. Though the petitioner claimed that on 4.11.1991, the Civil Surgeon, Patna on being orally directed by the Director-in-Chief had allowed the petitioner to continue at Patna but as such continuation of Patna High Court CWJC No.5662 of 2002 dt.25-06-2012 3 the petitioner at Patna had affected adversely one Chitranjan Kumar Singh also posted at Patna on the same post, the petitioner’s posting and continuation at Patna was no longer allowed by the Civil Surgeon in view of an order passed by this Court on 1.5.1992 in CWJC No. 6224 of 1991 filed by aforesaid Chitranjan Kumar Singh claiming payment of salary against the solitary post of Basic Health Inspector against which both the petitioner and Chitranjan Kumar Singh were claiming their continuation at Patna. It was in this backdrop that the petitioner himself had filed writ application, CWJC No. 4901 of 1992 for seeking a direction for payment of his salary with effect from 2.5.1992 but the aforementioned writ application CWJC No. 4901 of 1992 was dismissed as withdrawn by this Court on 9.7.1992. In view of the aforesaid order of this Court, the petitioner was again directed to join at Bikram but he did not do so and ultimately on 4.11.1992, the Civil Surgeon, Patna had passed a firm order directing the petitioner to report immediately for duty at Bikram failing which he could be subjected to a departmental proceeding for disobedience of his transfer order. The petitioner, however, kept on defying the transfer order on a plea that he was an office bearer of the Employees Union and as such he could not have been transferred out of Patna. He had thereafter filed another writ application, CWJC No. 2656 of 1995 Patna High Court CWJC No.5662 of 2002 dt.25-06-2012 4 claiming payment of his salary. This Court by an order dated 7.8.1995 had disposed of the aforesaid writ application by issuing a direction to the Director-in-Chief to look into the grievance of the petitioner both with regard to his posting at Patna in capacity of office bearer of Employees Association as also for payment of his salary. The petitioner is said to have filed his representation on 17.8.1995 to the Director-in-Chief of the Health Services on which an order was passed in his favour on 20.12.1995 directing the continuation of the petitioner at Patna as also for payment of his salary. The petitioner has also claimed that the consequential order dated 26.12.1995 was issued by the Civil Surgeon, Patna in compliance of the order of the Director-in-Chief dated 20.12.1995 but as two persons were claiming continuation on the same post, namely, the petitioner and Chitranjan Kumar Singh, the Civil Surgeon, Patna on 20.1.1996 had passed an order transferring the petitioner to Hiranand Pur but the petitioner instead of reporting for duty at Hiranand Pur had filed yet another writ application, CWJC No. 1804 of 1996 claming and insisting that he should not have been disturbed from Patna in view of the order of the Director-in-Chief dated 20.12.1995. It was in such circumstances that the Director-in-Chief by an order dated 2.3.1996 had himself cancelled his earlier order dated 20.12.1995 and had directed the petitioner to join at Bikram, his earlier place of his posting. The Patna High Court CWJC No.5662 of 2002 dt.25-06-2012 5 petitioner, however, despite being aware of this fact that his order of transfer of the Director-in-Chief dated 20.12.1995 has been canceled, had obtained a direction in his pending writ application CWJC No. 1804 of 1996 in which on 25.3.1996 an order was passed by this Court for not only restoring the place of posting of the petitioner at Patna but also making payment of his arrears of salary. As noted above, since the order of the Director-in-Chief of the Health Department dated 20.12.1995 had already been cancelled by him on 23.1.1996, the Civil Surgeon, Patna did not allow the petitioner to continue at Patna and when the petitioner wanted to enforce the order of this Court dated 25.3.1996 by filing a contempt application, a review application was filed by the respondents for recall of the order dated 25.3.1996 passed in CWJC No. 1804 of 1996. This Court ultimately after hearing the review application of the State of Bihar had found that the petitioner had obtained the order dated 25.3.1996 by making suppression of fact and as such, by an order dated 20.9.1997, the review application of the State was allowed by this Court and the order dated 25.3.1996 in CWJC No. 1804 of 1996 was recalled and the writ application of the petitioner was also dismissed. The petitioner, who had himself remained defiant and had not joined at his transferred place of posting at Bikram, had again Patna High Court CWJC No.5662 of 2002 dt.25-06-2012 6 filed a fresh writ application, CWJC No. 9909 of 1997 assailing the order of the Director-in-Chief of the Health Services dated 2.3.1996. In the said writ application, after the prayer of the petitioner for staying the operation of the order dated 2.3.1996 was rejected on two occasions, the same was heard on merit by a Division Bench which in its final order dated 3.11.1998 had found no substance in the writ application and had accordingly dismissed the same whereafter the petitioner had moved the Apex Court and during pendency of the Civil Appeal no. 4676 of 1999 before the Apex Court, the petitioner had retired from service on 31.12.2000. The Apex Court while disposing of the Civil Appeal No. 4676 of 1999 by an order dated 27.11.2001 had given liberty to the petitioner to file a representation before the State Government for claiming arrears of salary or other emoluments and in pursuance of the aforementioned observations and liberty given by the Apex Court in the order dated 27.11.2001, the petitioner had filed a representation on 4.12.2001 on which the impugned order dated 9.3.2002 had been passed holding that since the petitioner did not comply the order of transfer and had never joined and worked at the transferred place of his posting at Bikram, he would not be entitled for payment of salary and emoluments for the period May, 1992 to December, 2000 but, would be entitled to leave without pay and/or payment of salary and emoluments as against accumulated Patna High Court CWJC No.5662 of 2002 dt.25-06-2012 7 leave, if any, admissible to him. Mr. Banwari Sharma, learned counsel for the petitioner, has submitted that the Commissioner and the Secretary to the Health Department, while passing the impugned order, had failed to take into consideration that the transfer order of the petitioner dated 19.12.1989 had already been cancelled by the Civil Surgeon on 23.1.1990 and as such, its non-compliance could not have been made the issue for disobedience of transfer order of the petitioner. In this regard, he has also submitted that the petitioner was an office bearer of the Employees Association and hence, his transfer outside Patna was not permissible and, therefore, non-compliance of an illegal order of transfer could not have been made the issue for denying the payment of salary to the petitioner. He has further submitted that the Director- in-Chief having allowed the petitioner to revert back to Patna from Bikram by his order dated 20.12.1995 was not justified in recalling his order dated 2.3.1996 and, therefore, the petitioner cannot be said to have disobeyed the order of transfer. Learned counsel for the State, on the other hand, has submitted that the petitioner has always made an attempt to remain posted at Patna and his disobedience of the order of transfer is writ large on the face of record. He has further submitted that after the dismissal of the writ application of the petitioner by an order of this Patna High Court CWJC No.5662 of 2002 dt.25-06-2012 8 Court dated 3.11.1998 in CWJC No. 9909 of 1997, he cannot be heard to say that the order of the Director-in-Chief of the Health Services dated 2.3.1996 as with regard to the posting of the petitioner at Bikram was bad or illegal. He has in this regard also submitted that continued disobedience of his transfer order by the petitioner could not have been accepted by the State Government nor could he be rewarded by also allowing payment of salary to the petitioner for the period he had never worked at any place. In the considered opinion of this Court, a government servant working on a transferable post is under obligation to comply the transfer order. Admittedly, the petitioner’s transfer from Patna to Bikram was not interfered by this Court at any point of time though as noted above, he had filed as many as four writ applications sometime assailing the order of transfer and sometime claiming payment of salary while still disobeying the order of transfer. As a matter of fact, when the petitioner’s first writ application, CWJC No. 4901 of 1992 did not yield the desired result and the same was dismissed as withdrawn on 9.7.1992, the petitioner ought to have joined his transferred post at Bikram after the dismissal of the writ application but, he did not do so. In fact, a strict warning issued to the petitioner by the Civil Surgeon on 4.11.1992 in the following terms:- ^^izs"kd Mk0 v:.k dqekj flUgk] vlSfud 'kkY; fpfdRld lg eq[; Patna High Court CWJC No.5662 of 2002 dt.25-06-2012 9 fpfdRlk inkf/kdkjh] iVukA lsok esa] izHkkjh fpfdRlk inkf/kdkjh] lnj iz[k.M] iVukA iVuk] fnukad &&&&&&&&&& fo"k;& Jh Jh/kj flag] cqfu;knh LokLF; fujh{kd ds laca/k esaA egk';] mi;qZDr fo”k;d] vkids i= la[;k 535 fnukad 26-9-92 ds izlax esa lwfpr djuk gS fd ljdkjh odhy u0&1] mPp U;k;ky; iVuk us vius i= la[;k 11030 fnukad 14&7&92 n~okjk lwfpr fd;k gS fd Jh Jh/kj flag] cqfu;knh LokLF; fujh{kd] iVuk lnj iz[kaM n~okjk nk;j fd;s x;s dks] ekuuh; mPp U;k;ky; n~okjk fMlfel dj fn;k x;k gS ¼izfrfyfi layXu½ vr% ekuuh; mPp U;k;ky; ds QSlys ds vkyksd esa] Jh Jh/kj flag] cqfu;knh LokLF; fujh{kd ¼eysfj;k½ dsk muds LFkkukUrfjr LFkku fodze iz[kaM esa ;ksxnku djus dk rqjUr vkns’k fuxZr djsaA vkids vkns'k ds ckotwn Hkh os fodze iz[kaM esa ;ksxnku ds fy, ugha tkrs gSa vkSj vukf/kd`r :i ls viuk mifLFkfr] mifLFkfr iath esa cukrs gSa rks bldh lwpuk v/kksgLrk{kjh dks nh tk;s rkfd muds fo:) vuq'kklfud dkjZokbZ dh tk ldsA fQygky fdlh izdkj dk Hkqxrku mUgsa ugha fd;k tk;sA bl i= dh izfrfyfi Jh Jh/kj flag dks Hkh nh tk jgh gSA fo'oklHkktu g0@& vlSfud ‘kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh] iVukA Kki la[;k 8960 iVuk] fnukad 4-11-92 izfrfyfi Jh/kj flag] cqfu;knh LokLF; fujh{kd ¼eysfj;k½ lnj iz[kaM iVuk dks lwpukFkZ ,oa vko’;d dkjZokbZ gsrq izsf”krA vkidks vkns'k fn;k tkrk gS fd vki viuk ;ksxnku vius uo inLFkkfir LFkku fcdze iz[kM esa nsa vU;Fkk vkids fo:) vuq'kklfud dkjZokbZ dh tk;sxhA lkFk gh Li"Vhdj.k izLrqr djsa fd fdl ifjfLFkfr esa viuk mifLFkfr] iVuk lnj iz[kM ds mifLFkfr iath vuk/khd`r :i ls cuk;k gS tcfd izHkkjh fpfdRlk inkf/kdkjh] iVuk lnj iz[kM ds n~okjk] muds i=kad 311 fn0 27&5&92 n~okjk vki dk;Z fojfer fd;s tk pqds gSA izfrfyfi izHkkjh fpfdRlk inkf/kdkjh] fodze iz[kaM dks lwpukFkZ ,oa vko';d dkjZokbZ gsrq izsf"krA Jh Jh/kj flag] cqfu;knh LokLF; fujh{kd ds ;ksxnku djus ;k u djus dh lwpuk 40 fnuksa ds vUnj v/kksgLrk{kjh dks nh Patna High Court CWJC No.5662 of 2002 dt.25-06-2012 10 tk;sA vlSfud 'kY;fpfdRld lg eq[; fpfdRlk inkf/kdkjh] iVukA** by itself would go to show that even after the petitioner was relieved for joining at Bikram on 27.5.1992, he had still not complied the transfer order. As a matter of fact, from 27.5.1992, the petitioner upon being relieved from Patna did not discharge duty of the post on which he was transferred at Bikram and, therefore, his filing of writ application in the year 1995 for claiming payment of salary was itself wholly misconceived. In any event, the order passed by the Director- in-Chief dated 20.12.1995 while complying the order of this Court dated 7.8.1995 as with regard to payment of salary of the petitioner and his being reverted back to his post at Patna was also recalled and cancelled by the Director-in-Chief himself by an order dated 2.3.1996. The petitioner’s writ application as against the said order dated 2.3.1996 was dismissed by this Court by a reasoned order dated 3.11.1998 and, therefore, the petitioner cannot be heard to say that his unilateral act of continued defiance of the order of transfer could have been rewarded by the Commissioner and the Secretary of the Health Department by allowing payment of his salary. It has to be kept in mind that if the petitioner had complied the order of his transfer dated 20.1.1996, which was passed by the Civil Surgeon, Patna in order to comply the earlier order of the Director-in-Chief dated 20.12.1995, Patna High Court CWJC No.5662 of 2002 dt.25-06-2012 11 the position could not have been as pathetic as it has now become. The petitioner in fact did not comply even that order of transfer and his writ application CWJC No. 1804 of 1996 was also ultimately dismissed by an order dated 20.9.1997. The overall picture which therefore would emerge much in the case of the petitioner is that he had kept on defying the transfer order and had made himself liable for being subjected to major punishment including dismissal from service. If the respondents, therefore, had not taken any action against the petitioner on account of his repeated filing of the writ application and taking the matter to the Supreme Court, the petitioner cannot at least get the benefit of his payment of salary for the period in which he had admittedly not worked. As with regard to the claim of the petitioner of being an office bearer of the employees association and thus immune from order of transfer, this Court can do no better but extract the earlier findings recorded by the Division Bench of this Court in the order dated 3.11.1998 while dismissing the writ application of the petitioner CWJC No. 9909 of 1997 assailing the order of the Director-in-chief dated 2.3.1996. The Division Bench in this regard had held as follows:- “---- From the aforesaid order it clearly transpires that the petitioner was earlier also transferred by the Civil Surgeon, Patna Patna High Court CWJC No.5662 of 2002 dt.25-06-2012 12 vide order dated 18.12.89 and still he did not comply with the same, the present transfer order as contained in Anenxure-9 has also been passed on 2.3.96. Though no interim order has been passed by this court rather the same has already been rejected still the petitioner has not complied with the same. No averment whatsoever has been made that Annexure-9 has not been passed by the competent authority. The transfer being exigency of service cannot be transferred with in a writ jurisdiction. In the present case the transfer order is dated 2.3.96 and the petitioner inspite of dismissal of his interim application for stay, has not joined his place of transfer. The circular regarding posting of the members of association at the Headquarter are also not binding inasmuch as the same cannot be directed to be implemented under Article 226 of the constitution. As the order of transfer has been passed by the competent authority and no malice could be shown inasmuch as that the petitioner who was earlier transferred on 18.12.1989 had also not complied with the earlier order, to our mind, no relief can be granted to the writ petitioner. The petitioner is directed to join his post of transfer forthwith.” As noted above, the plea of the petitioner being office bearer of the Employees Union and thus immune from the order of transfer in view of the State Government Circular was also not held to be binding much less enforceable under Article 226 of the Constitution of India. It has to be kept in mind that the petitioner despite a direction of the Division Bench of this Court dated 3.11.1998 to join at his transferred place of posting at Bikram forthwith did not comply the said order. His appeal before the Apex Court was also simply disposed of after his retirement by merely giving him a liberty to file his representation for payment of salary. It Patna High Court CWJC No.5662 of 2002 dt.25-06-2012 13 thus becomes clear that the petitioner had defied the order of his transfer at his own risk and also did not carry out the direction given by this Court for joining on the transferred post. The petitioner under such circumstances, could not have claimed for payment of salary and the impugned order passed by the Commissioner and the Secretary to the Health Department in compliance of the order of the Apex Court to the same effect also does not suffer from any infirmity, inasmuch as, the Apex Court did not interfere with the order of the Division Bench of this Court as would be apparent from the order dated 27.11.2001 of the Apex Court which reads as follows:- “It is now stated that the appellant has since retired from service, no useful order can be made in regard to question of transfer. His claim is now confined only to claiming arrears of salary or other emoluments, if any. In regard to that aspect of the matter, the appellant has not made any specific claim earlier, therefore, it would not be proper for us to go into that question in these proceedings. It would be proper for the appellant to make due representation to the Government and make a claim before the Government. Mr. B.B. Singh, learned counsel for the respondents brings to our notice that inasmuch as the appellant had not rejoined his duties pursuant to the orders of the High Court or this Court and disciplinary action as initiated against him would have an impact on this course of action to be taken by the Government. It would be appropriate for the appellant to make a representation to the Government within a period of one month from today and Government to dispose of the same within a period of three months from date of receipt of the representation. The Government shall take into consideration whether modification in Patna High Court CWJC No.5662 of 2002 dt.25-06-2012 14 regard to salary and pension should be made or not. The appeal is disposed of accordingly.” From reading of the aforementioned order of the Apex Court, it would be clear that the findings recorded by the Division Bench in the order dated 3.11.1998 in CWJC No. 9909 of 1997 as with regard to the order of transfer being valid and legal and the petitioner being in habit of defying the transfer order was not disturbed and thus approved. In such a situation, the reasons given in the impugned order for denying payment of salary, reading as follows:- ^^14- mi;qZDr rF;ksa ls Li"V gS fd vkosnd dk LFkkukUrj.k l{ke inkf/kdkjh }kjk iz'kklfud dkj.kksa ls fd;k x;kA vkosnd us vkns'k dk ikyu ugha fd;k ,oa LFkkukUrfjr LFkku ij ;ksxnku ugha fn;kA vkosnd lsok fuo`Rr gks x;s gSA vr% muds ekeys ij lgkuqHkwfriwoZd fopkj djrs gq, ;g fu.kZ; fy;k tkrk gS fd iwjs vof/k fnukad 27-5-92 ls 31-12-2000 rd mUgsa osrujfgr vlk/kkj.k vodk'k Lohd`r fd;k tkrk gSA nwljs 'kCnksa esa vkosnd us pwWfd LosPNk ls LFkkukUrfjr LFkku ij ;ksxnku ugha fn;k ,oa mDr vof/k esa dksbZ ljdkjh dk;Z ugha fd;k] vr% mDr vof/k dk osru mUgsa ns; ugha gksxkA ysfdu vxj vkosnd dks dksbZ NqV~Vh ns; gS ml fLFkfr esa os fu;ekuqlkj vkosnu nsus ds fy, Lora= gSA muds vkosnu ij fu;ekuqlkj fopkj fd;k tk;sxkA vkns'k dh izfrfyfi vkosnd dks fucaf/kr Mkd ls HkstsaA** does suffer from any error. By now it is well settled that payment of salary has to be made for the discharge of duty by an employee, inasmuch as, the principle of ‘no pay for no work’ is based upon a fundamental concept that in the law of contract of employment, Patna High Court CWJC No.5662 of 2002 dt.25-06-2012 15 normally the wages/salary is paid by the employer in consideration of work/service rendered by the employee. Remuneration by way of payment of salary is the consideration which flows from the employer for the work rendered by an employee under the terms and contract of the employer. Lord Denning M.R. in the case of Secretary of State for employment Vs. Associated Society of Locomotive Engineers and Fireman reported in 1972(2) All ER 949 had laid down law in this regard in the following words:- “I am inclined to think that it is not so much a question of whether the contract is divisible or entire but of reciprocal promises as the consideration, that is to say, the employer provides the employment and pays the remuneration and the employee performs the work during the period he is supposed to do the work. Therefore, the right of the employee to get the remuneration depends upon the performance of his work during the period of employment. If there is any failure of that consideration then taking a strict view of the matter the employer is entitled to refuse and payment at all.” The aforementioned principle of English Court has also been followed by our Apex Court in the case of Bank of India Vs. T.S. Kelawala reported in 1990(4)SCC 744 wherein it was held that if the