IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13115 of 2008 Dilip Kumar Dubey, son of Sri Shes Mani Dubey, resident of village Singhol, P.S. Sarmera, District- Nalanda, Post- Sadar Hospital Munger, P.H.Public Health Pathology. ……… Petitioner Versus 1.The State Of Bihar through the Chief Secretary, Govt. of Bihar, Patna 2.Commissioner of Health Department and Secretary, Govt. of Bihar, Patna 3.Director of Health Department of Govt. of Bihar, patna 4.The Civil Surgeon-cum-Chief Medical Officer, Sadar Hospital, Munger within Fort Area, Munger. ………….. Respondents ---------------------------------- 4. 17/08/2011 Petitioner has filed this writ application for a direction to the respondents to pay him entire back wages of the period 30.4.1993 when his services had been terminated upto 13.9.1997 when the order contained in Annexure-3 was passed directing for his reinstatement in service with seniority, pay fixation and all other benefits except the salary of the period on the principle of “No Work No Pay”. In effect, petitioner has prayed for quashing of that part of Annexure-3 by which he has been denied salary of the period on the said principle of “No Work No Pay”. Learned counsel for the petitioner submits that the petitioner’s services were 2 terminated on account of a general order contained in letter no.528(II) dated 30.4.1993, by which all incumbents who were issued appointment letters by one Dr.A.A.Mallick, Regional Deputy Director, Tuberculosis had been terminated. Some persons identically situated and working as Laboratory Technician had come to this Court and this Court found that their cases were distinguishable from the case of other appointees of Dr.A.A.Mallick. Hence, this Court by observations made in paragraph 47 of the judgment of C.W.J.C.No.5979 of 1993 directed for reconsideration of their cases. The present petitioner also thereafter moved this Court through C.W.J.C.No.2582 of 1995. His writ application was disposed of by order dated 3.11.1995 with an observation that his case should also be considered in terms of said observations made in paragraph 47 of the said judgment of C.W.J.C.No.5979 of 1993. Accordingly, case of the petitioner was considered by the Commissioner-cum-Secretary, Department of Health. The Commissioner-cum- Secretary found that there were altogether 14 persons of such category, hence, they were 3 noticed and heard. After hearing the parties and after perusing the records, he has passed order dated 13.9.1997, a copy whereof has been annexed as Annexure-3. From the order it appears that the Commissioner-cum-Secretary has found that pursuant to an advertisement these persons had applied offering themselves for being sent for training. They were accordingly sent for training in a Government recognized Institution and after completion of training, they produced their certificates on the basis of which they were appointed by Dr.A.A.Mallick as Laboratory Technicians. The procedure was that applications were used to be invited from the candidates eligible for being sent for training. After the candidates were selected and sent for training and they completed it, they were appointed by the Deputy Director for which he had been empowered through letter no.108(II) dated 15.1.1976. Thus, the Commissioner-cum- Secretary has found that the appointment of the petitioner and others was legal and valid. Consequently, he has found that the petitioner is entitled for reinstatement which he has ordered with fixation of pay, 4 seniority etc., but denied salary of the period during which he was out of service on the Principle of “No Work No Pay”. Learned counsel for the petitioner submits that since the initial appointment of the petitioner was found valid and legal and his termination was found as illegal, on account of which he was reinstated, he is entitled for salary of the intervening period. In support of this submission, he has relied upon following judgments : (i) (1991)4 S.C.C. 109 (Para-25 and 26) (Union of India Vs. K.V.Jankiraman) (ii) (2004)1 S.C.C. 43 (Para-5 and 6) (Union of India Vs. Madhusudan Prasad) (iii) 2008(3) PLJR 340 (State of Bihar Vs. Paras Nath Singh) (iv) (2009)2 S.C.C. 570 (Roop Singh Negi Vs. Punjab National Bank) Judgments relied upon by learned counsel for the petitioner show that there is no hard and fast rule for grant of payment of salary of the period during which an employee was out of service due to pending departmental proceeding or criminal proceeding even if later on proceeding is closed and he is reinstated. The Apex Court in the case of 5 Union of India Vs. Madhusudan Prasad (Supra) noticed that the Constitution Bench of the Apex Court in the case of Managing Director, ECIL Vs. B. Karunakar, (1993) 4 S.C.C. 727, has held that question whether an employee would be entitled to back wages and other benefits from the date of his dismissal to the date of his reinstatement, if ultimately ordered, should invariably be left to be decided by the authority concerned according to law. Hence, no Principle in a straight jacket formula can be said to operate in the field. As observed by the Constitution Bench, it is the authority that has to decide this issue in accordance with law. This means that there cannot be an automatic denial of salary of the intervening period to an employee upon his reinstatement referring simply to the Principle of “No Work No Pay”. In the present case, it is established that the petitioner’s appointment was legal and valid. Hence, his termination was apparently illegal. In that situation, if the petitioner was being reinstated by the Commissioner-cum-Secretary, there was no reason for the Commissioner-cum-Secretary to 6 deny the petitioner back wages of the intervening period simply referring to the Principle of “No Work No Pay”. There is no consideration by the Commissioner-cum- Secretary on this aspect of the matter in his order. Hence, this Court finds that so far as this right of the petitioner is concerned, the same has been denied to the petitioner by the Commissioner-cum-Secretary without application of mind. Learned counsel for the respondents does not dispute that the petitioner’s appointment was found valid and legal and hence he was reinstated. He submits that since petitioner was out of service during the period, therefore, he has been denied his salary. However, he does not dispute that the petitioner was out of service on account of an illegal order which was made applicable to him also and he remained out of service without any fault on his part. However, he submits that this part of the order of the Commissioner-cum-Secretary which was passed as far back as on 13.9.1997 has been challenged by the petitioner in this writ application filed in 2008. Hence, he submits that there is 7 apparent delay of almost 11 years in petitioner’s moving this Court or raising his grievance against such denial of salary. He submits that the remedy under Article 226 of the Constitution of India is a discretionary one and this Court should deny exercise of powers if the person approaching this Court is found guilty of gross delay and laches. In support of his submission, he has relied upon the judgments in the case of Eastern Coalfields Ltd. Vs. Dugal Kumar : (2008) 14 S.C.C. 295 (Para-24) and in the case of S.S.Balu Vs. State of Kerala : (2009) 2 S.C.C. 479 (Para-17). In reply, learned counsel for the petitioner submits that the petitioner was so hard pressed during the period that he could not approach this Court earlier. However, except for this vague explanation, there is no explanation by the petitioner to cover up the delay of 11 years in moving this Court challenging the said order. In the circumstances, on account of delay and laches only, this Court does not consider it appropriate to hold the petitioner entitled for the entire back wages of the 8 period during which he remained out of service, which, on merits, he deserved. Hence, in view of the facts and circumstances appearing from Annexure-3, this Court directs the respondents to pay the petitioner an amount of Rs.25,000/- as compensation for keeping him out of service for the period between 30.4.1993 to 13.9.1997 for no fault of his. The amount by way of compensation must be paid to the petitioner within a period of two months from the date of receipt/production of a copy of this order. The writ application is disposed of with the aforesaid observations and directions. Pradeep/ ( J. N. Singh,J.)