(1) LPA-27.2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 27 OF 2004 Mahalingappa S/o Vishwanathappa Mahajan, Age: 67 years, Occu.:Retired, R/o : Udgir, Dist. Latur APPELLANT VERSUS 1. The Municipal Council, Udgir, through its Chief Officer, 2. The Chief Officer, Municipal Council, Udgir 3. The Regional Director of Municipal Administrator and Additional Commissioner, Aurangabad Division, Aurangabad 4. Gurunath S/o Rachappa Kapale Age: 60 years, Occu.: Service, R/o.: Udgir, Dist. Latur 5. Sayed Bashir Ahmed Kadri Age: 49 years, Occu.: Service, R/o: Udgir, Dist. Latur RESPONDENTS WITH CROSS APPEAL NO. 1 OF 2004 IN LETTERS PATENT APPEAL NO. 27 OF 2004 Gurunath S/o Rachappa Kapale Age: 64 years, Occu.: Retired, R/o. Kapale Galli, Tq.Udgir, Dist. Latur APPELLANT VERSUS 1. Mahalingappa S/o Vishwanathappa Mahajan, Age: 67 years, Occu.:Retired, R/o Tq. Udgir, Dist. Latur (2) LPA-27.2004 2. The Municipal Council, Udgir, through its Chief Officer, 3. The Chief Officer, Municipal Council, Udgir 4. The Regional Director of Municipal Administrator and Additional Commissioner, Aurangabad Division, Aurangabad 5. Sayed Bashir Ahmed Kadri Age: 49 years, Occu.: Service, R/o: Udgir, Dist. Latur RESPONDENTS ..... Mr. G.N. Patil, Advocate h/f. Mr. P.G. Rodge, Advocate for the appellant in the Letters Patent Appeal and for respondent no.1 in the Cross Appeal. Mr. Vivek Solshe, Advocate h/f. Mr. V.C. Solshe, Advocate for the Appellant in the Cross Appeal and for respondent no.4 in the Letters Patent Appeal. Mr. K.B. Choudhari, A.G.P. for the Respondent-State. ..... CORAM : SMT. NISHITA MHATRE & M.T. JOSHI, JJ. DATED : 26TH APRIL, 2011 ORAL JUDGEMNT (PER - SMT. NISHITA MHATRE, J.):- 1. The Letters Patent Appeal has been preferred against the judgment and order of learned Single Judge dated 11.1.2002. By this order, the learned Single Judge has directed the Chief Officer, Municipal Council, Udgir to readjust the seniority of (3) LPA-27.2004 the appellant and respondent no.4 on the basis of the resolution passed by the Administrator, Udgir dated 25.5.1981. After the fixation of the seniority, the parties were permitted to agitate their monetary claims, if any. Cross objections have been filed by respondent No.4, contending that the learned single judge has erred in holding that the appellant was senior to him in service. 2. The appellant is aggrieved by the aforesaid observation of the learned Single Judge, that he is required to agitate his grievance about his monetary claims after fixation of the seniority. According to the appellant, consequential benefits ought to have been granted to him as a natural consequence after the fixation of his seniority. 3. The brief facts in the present case are as follows:- . The appellant was employed as Nakedar on 1.4.1963. He was later promoted to the post of Octroi Inspector on 1.10.1968. It appears that respondent no.4 who joined service after the (4) LPA-27.2004 appellant, was also promoted to the post of Octroi Inspector in 1973. Thereafter, the question whether the appellant ought to be promoted as Tax Superintendent was in issue. The Administrator of Udgir Municipal Council promoted the appellant with effect from 1.12.1983 as Tax Superintendent. Being aggrieved by the promotion of the appellant, Respondent no.4 preferred a Revision Application before respondent no.3, i.e. the Regional Director of Municipal Administration. The promotion order was set aside by respondent no.3 in 1984. The Municipal Council was directed to prepare a fresh seniority list and to reconsider the order of promotion issued to the appellant. Aggrieved by this decision, the appellant preferred Writ Petition no.1022 of 1984 before this Court. This Court directed respondent nos. 1 and 2 to file the seniority list within one month and to pass appropriate orders regarding the promotion. The parties were directed to maintain status quo till then. . The Chief Officer of the Municipal Council prepared the seniority list, as directed by this (5) LPA-27.2004 Court. The appellant was shown senior to respondent nos. 4 and 5. After the finalisation of the seniority list, a fresh order was issued in favour of the appellant, promoting him to the post of Tax Superintendent. Aggrieved by this decision, a Revision Application was filed before the Additional Commissioner, Aurangabad under section 318 of the Maharashtra Municipal Council Nagar Panchayats and Industrial Townships Act,1965 (for short "the Act") by respondent no.4. It was held that the appellant had wrongly been promoted to the post of Octroi Inspector in 1968 and therefore the seniority fixed was incorrect. The matter was thereafter remanded to the Chief Officer directing him to hear the objection of respondent no.4 and to fix the seniority in accordance with law. The Standing Committee of the Municipal Council then re-fixed the seniority and the respondent no.4 was shown senior to the appellant. The appellant then preferred a Revision Application under section 318 of the aforesaid Act. This Application was dismissed on 7.11.1985. Aggrieved by that order, the appellant preferred the present Writ Petition. (6) LPA-27.2004 4. The learned Single Judge after considering the submissions of the counsel before him, held that the seniority was incorrectly fixed. It has been held that the Additional Commissioner had arrived at an erroneous conclusion that the appellant's promotion as an Octroi Inspector on 1.10.1968 was not proper and valid. It was held that the Additional Commissioner had ignored the fact that the Collector had accorded approval to the resolution dated 25.5.1981 passed by the Administrator, Municipal Council, Udgir by which the appellant had been appointed to the post of Octroi Inspector. The Court observed that since respondent no.4 was promoted as an Octroi Inspector in 1973, he was junior to the appellant who had been promoted in October, 1968. While passing the aforesaid order, the learned Single Judge directed the Chief Officer, Municipal Council, Udgir to readjust the seniority of the appellant and respondent no.4 on the basis of the resolutions passed by the Administrator, Udgir dated 25.5.1981. Accordingly, the seniority has been fixed and the appellant has been shown senior to respondent no.4. (7) LPA-27.2004 5. It appears, however, that consequential benefits available to the appellant on re-fixation of his seniority had not been afforded to the appellant. 6. The learned counsel appearing for the appellant submits that the impugned order is erroneous, inasmuch as the learned Single Judge has not directed that consequential benefits should be paid to the appellant on the re-fixation of his seniority. It is further submitted that in view of the decision of the Supreme Court in the case of Commissioner, Karnataka Housing Board Vs. C. Muddaiah reported in 2008(1) Mh.L.J. 546, the pay of the appellant ought to have been re-fixed and he ought to have been paid all consequential benefits including his salary for the years 1985 to 1990. 7. An affidavit was filed by the appellant before the learned Single Judge, indicating that although he was ready and willing to join duty he was not permitted to do so by the Municipal Council. It appears that the Municipal Council has passed orders, indicating that the appellant would not be entitled (8) LPA-27.2004 to any consequential benefits on re-fixation of his seniority. That order, admittedly, has not been challenged by the appellant in separate proceedings. 8. It is true that in the case of Commissioner, Karnataka Housing Board (supra), the Apex Court has considered whether an employee who was kept away from work by the employer deliberately, would be entitled to salary on re-fixation of his seniority. The Supreme Court, while conscious and mindful of the fact that the normal rule was "no work no pay", observed that, in appropriate cases the Court could take into account various factors in the case and pass orders in accordance with law with respect to salary. In the present case, we have noticed that the only prayer sought by the appellant in the writ petition was for fixation of his seniority to the extent that he should be shown senior to the respondent no.4 and 5. In the case before the Supreme Court, a direction was issued by the High Court that the employee in that case should be promoted with consequential benefits. Obviously, therefore, that relief had been sought by the (9) LPA-27.2004 employee before the Court which was granted, considering the merits of the case. It was only because a competent Court had issued a direction that all consequential benefits must be paid by the employer to the employee on fixation of his seniority that the Supreme Court observed that the orders of the competent Court must be obeyed and implemented without any reservation. In these circumstances, the Supreme Court observed in paragraph nos. 31 and 32 as follows:- "31. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected. 32. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the (10) LPA-27.2004 Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. It is open to the authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged. We are conscious and mindful that even in absence of statutory provision, normal rule is "no work no pay". In appropriate cases, however, a Court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the authority to grant him all benefits considering "as if he had worked". It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential (11) LPA-27.2004 benefits can be granted by a Court of law and if such directions are issued by a Court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected." In the present case, when the appellant himself had not sought any further relief other than fixation of his seniority, it would not be appropriate for us to grant the relief. In fact, it was in these circumstances, that the learned Single Judge has observed that the appellant could take recourse to appropriate remedies to ensure that consequential benefits are paid to him. 9. Whether the appellant was in fact, refused permission to work or whether it was because of his absence, that the salary has not been paid, is not an issue, which can be decided by this Court directly. In these circumstances, in our opinion, it is not possible to grant any relief to the appellant in the present Appeal. Letters Patent Appeal is dismissed. 10. Respondent no.4 has preferred a Cross Appeal, in which he contends that the learned Single (12) LPA-27.2004 Judge has committed an error by concluding that the appellant was entitled to be promoted to the post of Tax Superintendent ahead of himself. It is contended that the appellant did not have the requisite qualification and, therefore, he was not qualified to hold the post of either an Octroi Inspector or of a Tax Superintendent. 11. We are not inclined to grant any relief to respondent no.4 in respect of his Cross Appeal. The appellant had been promoted to the post of Octroi Inspector in the year 1968, while respondent no.4 was promoted to that post in 1973. No objection was raised by the respondent no.4 at any point of time till the appellant was promoted to the post of Tax Superintendent. We have considered the reasons which persuaded the learned single judge to hold that the petitioner was senior to the respondent no.4. In our opinion the learned single judge has not committed any error in restoring the seniority of the appellant. Moreover we have been informed at the bar that both the appellant and the respondent No.4 have retired from service. In these circumstances, we do (13) LPA-27.2004 not see any reason to interfere in the matter and the Cross Appeal is dismissed. 12. Accordingly, both the Letters Patent Appeal and the Cross Objections are dismissed. No order as to costs. [M.T. JOSHI, J.] [SMT. NISHITA MHATRE, J.] arp