IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2965 of 2007 1. Mithilesh Kumar, son of Shri Ram Lal, resident of village Garikhana, P.S. Khagaul, District Patna 2. Gajendra Prasad Karan, son of Shri Rajendra Prasad, resident of the house of Shri Raghubansh Kumar Tiwary, Krishna Lodge Lane, P.O. Mahendru, P.S. Sultanganj, District Patna … Petitioners Versus 1. The State Of Bihar 2. The Health Commissioner, Govt. of Bihar, Patna 3. Director in Chief, Health Services, Bihar, Patna 4. Controlling Officer, Kritrim Avayava Nirman Kendra Avam Viklang Bhawan Hospital under the department of Health, Govt. of Bihar, Patna 5. Head of the Department of Physical Medicine and Rehabilitation, Patna Medical College Hospital, Patna … Respondents With Civil Writ Jurisdiction Case No. 5737 of 2007 1. Suresh Ram, son of Shri Rameshwar Ram, resident of Mohalla Gardanibagh, New Yarpur, Janta Road, Division, Patna-1 2. Usha Kumari, D/o Shri Dev Narayan Singh, resident of village Maharajganj, P.S. Guljarbagh, Patna 3. Sipal Kumar Pal, son of Shri Ramswaroup Pal, resident of Mohalla P.C.Colony, Kankarbagh, Jagdamba Bhawan, G-4, Patna … Petitioners Versus 1. The State of Bihar 2. The Commissioner cum Secretary, Health Department, Govt. of Bihar, New Secretariat Building, Patna 3. Director-in-Chief, Health Services, Bihar, New Secretariat, Patna 4. Controlling Officer cum Head of the Department of Phyiotherapy & Occupational Therapy, Viklang Bhawan, Hospital Kankarbagh, Patna … Respondents ------------------------------- For the Petitioner : Mr. Amit Prakash, Advocate Mrs. Soni Srivastava, Advocate & Mr. Pritish Kumal Lal, Advocate For the Respondent : Mr. Sanjay Kr. No. 1 (G.P.-14) (in C.W.J.C. No. 2965/2007) For the Petitioner : Mr. Awadhesh Kr. Mishra, Advocate Mr. Harihar Ojha, Advocate & Mr. Sushil Chandra Keshari, Advocate For the Respondents : Mr. Harendra Pd. Singh (G.A.-6) (in C.W.J.C. No. 5737/2007) --------------------------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (08.09.2011) Mihir Kumar Jha, J. Heard counsel for the parties. 2. The prayer of five petitioners in these two writ 2 applications is same and identical. They while seeking quashing of the office order No. 51 of 2005 dated 30.9.2005 passed by the Head of the Department cum Controlling Officer of Kritrim Avayav Nirman Kendra, Viklang Bhawan (Artificial Limbs manufacturing Centre, Viklang Bhawan), Patna denying them payment of salary for the period 1.1.1998 to 15.7.2005 have also prayed for a consequential relief by way of a direction to the respondents for making payment of their salary for the period 1.1.1998 to 15.7.2005. 3. The facts which are in dispute and would be sufficient for disposal of these cases lie in a narrow compass. 4. All the five petitioners were appointed under the orders of the controlling authority of Viklang Bhawan in the month of September, 1997 by separate appointment letters, all dated 24.9.1997 except in the case of the petitioner Usha Kumari who was appointed on 12.11.1997 by the same authority. It is also not in dispute that their joining was accepted by the controlling authority as they were assigned duty of their post by the controlling authority of Viklang Bhawan. 5. From the pleadings on record including the facts mentioned in the counter affidavit it appears that while the petitioners were functioning on their post one Dr. A.K. Verma had made certain report against the controlling authority by claiming himself to be the Head of the Department of Physical, Medicine and Rehabilitation (PMR) of Patna Medical College and Hospital and in his report dated 19.9.1997 followed by yet another report dated 15.12.1997 submitted to the Health Commissioner and the Director-in-Chief of the Health Services he had brought to their notice that these five petitioners had been illegally appointed in an unauthorized manner by Sri Sarju Prasad, occupational Therapist, the controlling authority of Viklang Bhawan, who was also 3 making payment of their salary by forcibly exercising power of Drawing and Disbursing authority of Viklanga Bhawan. It appears that on such a complaint made by Dr. A.K.Verma, Head of the Department of PMR, P.M.C.H., Patna when no action was taken by the Health Commissioner/ Director-in-Chief he had informed the Director-in-Chief that that in absence of any instruction received by him in the light of his earlier communication dated 19.9.1997 and 15.12.1997 he had stopped payment of salary of the petitioners as the appointment of the petitioners were made without taking the Head of the Department of PMR, P.M.C.H., Patna into confidence. As the payment of salary of the petitioners, all Class IV employees, had been abruptly stopped, they had approached their appointing authority, namely, the controlling authority of Viklang Bhawan by filing their separate and joint representation and in course of consideration of such representation the controlling authority vide his Memo No. 159 dated 7.10.1998 had passed the following order: ^^u;s fu;qDr deZpkfj;ksa Jhefr m"kk dqekjh Acky lsfodkA] Jh lqjs'k jke Avkns'kikyA] Jh f'kiy dqekj iky Ajkf= izgjhA] Jh fefFkys'k dqekj Adq'ky f'kYihA rFkk Jh xtsUnz izlkn dj.k Avkns'kikyA ds vkosnu fnukad 23-9-98 ds dze esa ;g vkns'k fn;k tkrk gS fd mDr deZpkfj;ksa dk osru dk Hkqxrku rc rd ugha fd;k tk;sxk tc rd fd muyksxksa ls lacaf/kr ekeyksa dk fu"iknu iVuk mPp U;k;ky; ls ugha gks tkrhA mijksDr deZpkjh viuh M~;wVh rFkk mifLFkfr iwoZ dh Hkkafr vxys vkns'k rd djrs jgsaxaA g0@& fu;a=.k inkf/kdkjh fodykax Hkou vLirky ,oa d`f=e vax fuekZ.k dsUnz] dadM+ckx] iVuk&20 Kkikad 159 A.L.C iVuk] fnukad 7-10-98** 6. Thus, when the petitioners were denied their payment of salary they had jointly moved this Court in C.W.J.C.No. 1339/1998 seeking quashing of the aforementioned order dated 7.10.1998 with a 4 consequential direction for payment of their salary since January, 1998. This Court by an order dated 29.9.1999 had remitted the matter back to the controlling authority of Viklang Bhawan for passing an appropriate order for payment of arrears and current salary of the petitioners and in compliance of the said order the controlling authority by his order dated 14.12.1999 had rejected the claim of payment of salary of the petitioners by his order contained in Memo No. 232 dated 14.12.1999, relevant portion whereof is extracted hereinbelow: ^^Nkuchu ds dze esa ;g ik;k x;k gS fd izklkafxd vkosnd Am"kk dqekjh ,oa vU;A Mk0 ,0ds0oekZ ds }kjk jksd yxkus ds i'pkr ,d fnu Hkh dk;Z ij ugha vk,A bldh iqf"V Nkuchu ds dze esa d`f=e vo;o fuekZ.k dsUnz] iVuk ds deZpkfj;ksa }kjk fyf[kr :i esa fn;k x;k rFkk ;g Hkh f'kdk;r dh x;h fd deZ'kkyk ds mifLFkfr iath esa ,d gh fnu nksuksa deZpkfj;ksa dze'k% Jh fefFkys'k dqekj ,oa xtsUnz izlkn dj.k }kjk gLrk{kj fd;k x;k rFkk esjs }kjk Hkh fnukad 5-10-99 dks mifLFkfr iath dh tkap dh x;h Fkh ml le; rFkk dfFkr O;fDr;ksa dks gLrk{kj ugha FkkA iwu% fnukad 6-10-99 dks deZpkfj;ksa }kjk eq>s mifLFkfr iath fn[kkdj tkylkth gLrk{kj fn[kk;k x;kA tkylkth gLrk{kj ds lacU/k esa eSaus funs'kky; dks bldh lwpuk nh rFkk ekxZ n'kZu ekaxkA ijUrq LokLF; foHkkx ls fdlh izdkj dks dksbZ fn'kk funsZ'k izkIr ugha gqvkA eSus funs'kd izeq[k dks Hkh vius i=kad 202 fnukad 16-11-99 }kjk oLrq fLFkfr ls voxr djk;k rFkk muls Hkh fn'kk funs'k nsus dk vkxzg fd;k] fdUrq ogka ls Hkh dksbZ funsZ'k izkIr ugha gqvkA blh chp funs'kd] LokLF; lsok;sa ls ,s i= izkIr gqvk ftlesa dgk x;k U;k;ky; ds vkns'k dk ikyu fd;k tk;A xgu Nkuchu ds i'pkr fu"d"kZ ;gh gS fd okLro esa m"kk dqekjh ,oa vU; vkosndksa esa Mk0 ,0 ds0 oekZ ds of.kZr i=kad VB/3098 ds fuxZr gksus ds i'pkr dksbZ dke ugha fy;k x;kA esjs dk;Z vof/k Qjojh] 99 ls vcrd esjs }kjk Hkh buls dke ugha fy;k x;k gSA ;s deZpkjh oLrqr% U;k;ky; ds vkns'k ds ckn gh fodykax Hkou vLirky esa vkuk 'kq: fd;s gSaA vc ,slh ifjfLFkfr esa iwoZ dh vof/k dk osru Hkqxrku djuk vuqfpr gSA ;g mYys[k djuk eqfDr laxr gksxk fd Jh lqjs'k jke ,oa Jh f'kiy dqekj iky fQftdy esfMflu ,oa fjgsCyhVs'kuy foHkkx ds l`ftr in ij fu;qDr gq;s Fks vkSj izklkafxd foHkkx] foHkkxk/;{k] fQftdy esfMflu ,oa fjgsCyhVs'ku foHkkx ds v/khu FkkA oRrZeku esa buls dke ysuk rFkk mifLFkfr iath esa mifLFkfr ntZ djus ds laca/kh esa fu.kZ; ysuk rHkh laHko gksxk tc buyksxksa us fu;qfDr dh oS}rk izekf.kr gks tk; vFkok fcgkj ljdkj esa LokLF; foHkkx }kjk 5 dksbZ fn'kk funsZ'k izkIr gks tk;A blds fy;s funs'kd izeq[k dks vyx ls fy[kk tk jgk gSA vr% ekuuh; mPp U;k;ky; ds vkns'k ds vuqikyu esa mijksDr vkns'k v|ksgLrk{kjh }kjk ikfjr fd;k tk jgk gSA** 7. All the five petitioners thereafter had filed C.W.J.C.No. 139/2000 assailing the aforementioned order dated 14.12.1999 passed by the controlling authority with a consequential direction for payment of their salary. This Court by an order dated 4.4.2005 in C.W.J.C.No. 139/2000 while noticing that Viklang Bhawan from February, 1998 was disassociated with Patna Medical College and Hospital and was placed under the Bihar State Health Directorate and the letter of Mr. A.K.Verma, Head of the Department of Physical, Medicine and Rehabilitation, P.M.C.H., Patna dated 4.2.1998 alleging illegality in the appointment of the petitioners as also stopping payment of their salary while directing for an enquiry into the appointment of the petitioners as also payment of their salary had held as follows: “ The Artifical Limbs Manufacturing Centre and Viklang Bhawan Hospital, as noticed earlier came under Health Directorate of State Government. The Controlling Officer is respondent no.4. He has also not taken any such decision pursuant to order contained in Annexure 2. The materials on record show that petitioner‟s claim that they worked at least till 7.10.98 vide Annexure 3 respondent no.4 allowed them to work further. On the other hand, the State and respondent no.4 have taken a stand that petitioners worked only for 45 days for which they have been paid and thereafter they did not turn up and therefore, they are not entitled for payment. It also appears that earlier the predecessor of present controlling officer, respondent no.4 had asked for guidelines in the matter from Director-in-Chief, Health Services, Bihar as well as Health Commissioner and in absence of any guide lines no decision could be taken in the matter. 6 The prayer of the petitioner in this writ petition is again not in respect of nature of their appointment but only in respect of their current salary and arrears. It has been submitted that by not deciding the fact whether petitioners had worked and were still working during the time indicated by Annexure 2, the respondents cannot deprive the petitioners of the salary for the period petitioners have worked or for the period petitioners have been kept out of work because of action of the respondents. On the other hand, learned counsel for the State has submitted that the delay in taking the decision alone cannot entitle petitioners for salary and their right to receive salary will be dependent on the findings of enquiry that their appointments were valid or not and whether they have actually worked or not. This Court finds from annexure 2 that petitioners have been held entitled to receive salary for the period they have actually worked and in case they are still working they would be entitled for their current salary. The relief granted by this Court cannot be rejected merely on account of delay. Hence, the enquiry into facts as per order contained in Annexure 2 must now be completed by respondent no.4 who is now the controlling authority in place of Head of Department of Physical Medicine and Rehabilitation, Patna Medical College and Hospital. The enquiry and decision as per order contained in Annexure 2 must be taken within a period of one month from the date of receipt/ production of a copy of this order. It goes without saying that petitioner‟s right of arrears of salary as well as current salary, as ordered vide Annexure 2 will depend upon the findings and decision of respondent no.4. This Court has noticed that petitioners have claimed right to receive salary only on the basis of the claim that they have worked and are actually working whereas in law right to receive salary should flow from lawful appointment to a particular post. If there is bonafide doubt regarding validity of petitioner‟s appointment then if so advised, the concerned authorities of the State Government may 7 complete enquiry into that aspect of the matter also as per law within a period of three months from the date of production/ communication of a copy of this order so that the petitioners‟ right to claim salary may not be in doubt. The writ petition is disposed of.” 8. In compliance of the aforementioned order dated 4.4.2005 the controlling authority has passed an order on 5.7.2005 wherein it was held that the appointment of the petitioners was made following the Government Rules and Circulars after undergoing full process of selection on the basis of names obtained from the Employment Exchange by a Selection Committee of five persons consisting of Mr. Sarju Prasad, Controlling Officer, Mr. Ramkrishnan, Superintendent, Rehabilitation Centre and Directorate of Labour, Govt. of India, Smt. Preeti Sinha, Principal, I.T.I., Labour and Employment Department, Govt. of Bihar, Patna, Dr. MohanSingh, Administrative Officer, P.M.C.H., Patna and Sri Kishore Kumar, Occupational Therapist, Viklang Bhawan, Patna. In the detailed order of the Controlling authority it was further recorded that the Selection Committee had conducted interview of all the petitioners and other candidates and after following the Government policy of roaster and reservation these five petitioners were appointed on 24.9.1997 under intimation to the Directorate of Health. The controlling authority accordingly having noted that the Directorate of Health had also issued orders for taking an appropriate decision in the matter of continuation and payment of salary of the petitioners vide letter no. 1252 dated 16.11.1999 and letter no. 165 dated 9.3.2005 as well as letter no. 190 dated 24.3.2005 had recorded that he had gone into the entire procedure of appointment of the petitioners and in his enquiry he had found the appointment of the petitioners to be legal and perfectly justified. He, 8 however, had held the petitioners not entitled for receiving payment of salary on the principle of „no work no pay‟ as per direction given to him. It is this order dated 5.7.2005 which has been assailed by the five petitioners in the aforementioned writ petitions to the extent to deprive them from getting payment of salary from January, 1998 to 15.7.2005. 9. Mr. Amit Prakash followed by Mr. Awadhesh Kumar Mishra, learned counsel appearing on behalf of the petitioners, while assailing the impugned order dated 5.7.2005 and its consequential communication dated 30.9.2005 have laid stress on the aspect that even when the petitioners were legally appointed by the competent authority and were performing their duty, if the tussle between Dr. A.K.Verma, Head of the Department, P.M.R., P.M.C.H., Patna and Mr. Sarju Prasad, the Controlling authority of Viklang Bhawan, had led to stoppage of payment of salary of the petitioners, they cannot be denied such payment of salary on the principle of „no work no pay‟. 10. In this regard first of all Mr. Amit Prakash has drawn attention to the order of the controlling authority of Viklang Bhawan dated 7.10.1998 in which it has been stated that though the petitioners will not be paid their salary till the case filed by them is decided by the High Court but they shall continue to remain on duty and also mark their attendance as was being done by them earlier. He would, therefore, submit that since the services of the petitioners were neither terminated nor they were placed under suspension, they cannot be deprived of payment of salary when ultimately the authorities have found no flaw in their appointment. He has further drawn attention towards the various representations filed by the petitioners showing that though they were also willing to work and has also reported for duty but no work was being taken by them nor they were allowed to mark attendance. Such 9 representations also did not bear any fruitful result and in fact after their claim for payment of salary were rejected on the first occasion and they had filed another writ petition, the controlling authority himself in the order dated 14.12.1999 had held that no work could be taken from the petitioners nor they could be allowed to mark attendance in the attendance register till the validity of their appointment was not proved or any guideline was issued by the Health Department of the Govt. of Bihar for which the office of the Director-in-Chief was being approached. Basing his claim on the two communications of the controlling authority dated 7.9.1998 and 14.12.1999 Mr. Prakash submits that the petitioners were not at fault in any manner so as to be penalized for payment of their arrears of salary prior to 5.7.2005. In this regard he has placed reliance on a Division Bench judgment of this Court in the case of Radha Kumari vs. the State of Bihar & ors., reported in 2002(3) PLJR 794. He has also submitted that the principle of „no work no pay‟ would be made applicable only in such cases where the employee voluntarily does not work but the aforesaid principle cannot be invoked in a case of an employee who was coerced and forced not to work as in the case of the petitioners. 11. Learned counsel for the State, on the other hand, would submit that the controlling authority having found some sort of doubt in genuineness of appointment of the petitioners had referred the matter to the Directorate and since the Directorate had also not given any guideline, the controlling authority had no option but to restrain the petitioners from working and/or marking attendance. He has further explained that as the matter was subjudice before this Court in the two writ petitions the controlling authority could not have allowed the petitioners to work on their post, especially when a question of legality 10 of their appointment was also involved. He has accordingly submitted that the order of the authority denying the petitioners payment of salary from January, 1999 to 4.7.2005 does not suffer from any error and is well supported by the principle of „no work no pay‟. 12. In the light of the aforementioned rival contentions the first question would be as to how the petitioners came to be appointed and whether there was any reason for the authority to withhold payment of their salary in the month of January, 1999? The Constitution prohibits the concept of „Begari‟ under Article 23. The petitioners were appointed by the competent authority on vacant and sanctioned post and as now the things have surfaced there was no flaw in their initial appointment. Therefore, the order/ decision taken by the controlling authority of Viklang Bhawan in withholding payment of salary from January, 1999 has got no support in law. The employee after being appointed and acceptance of joining could be deprived from working and/or receiving payment of full salary only by way of placing them under suspension (which could at least enable them to earn subsistence allowance) or by way of punishment in form of an order withholding payment of salary. In the present case neither of the two recourse was taken and therefore, this Court will have no difficulty in holding that the payment of salary from January, 1999 to 4.7.2005 was wholly an illegal act on the part of the controlling authority of the Viklanga Bhawan. While learned counsel for the petitioners had tried to put the blame with regard to non-payment of their salary squarely on the controlling authority of Viklang Bhawan, learned counsel for the State had pointed out that the controlling authority of Viklang Bhawan by the order dated 14.12.1989 had sought specific direction from the Director-in-Chief as with regard to continuation of the petitioners in service pending enquiry relating to 11 legality of their appointment, marking of attendance etc. and therefore, the controlling authority having received no instruction from the Director-in-Chief cannot be held to be guilty for non-payment of their salary. 13. This Court would fail to understand as to how the controlling authority having written one letter on 14.12.1999 could have sat tight over the matter. The petitioners had not been paid their salary from January, 1998 and they had filed two writ petitions claiming payment of their salary. The order dated 14.12.1999 in fact was passed by the controlling authority by way of disposing of the claim of the petitioners for payment of salary wherein while rejecting the claim of the petitioners for payment of salary from January, 1998 upto 14.12.1999 on the ground that they were not present in Viklang Bhawan nor they had put their signature in the attendance register he had himself held as follows: ^^orZeku esa buls dke ysuk rFkk mifLFkfr iath esa mifLFkfr ntZ djus ds laca/k esa fu.kZ; ysuk rHkh laHko gksxk tc buyksxksas us fu;qfDr dh oS|rk izekf.kr gks tk; vFkok fcgkj ljdkj ds LokLF; foHkkx }kjk dksbZ fn'k funsZ'k izkIr gks tk;A blds fy;s funsZ'kd izeq[k dks vyx ls fy[kk tk jgk gSA** 14. It has to be kept in mind that the predecessor of the controlling authority, who had passed the order dated 14.12.1999, on the other hand, had already recorded in his earlier order dated 7.10.1998 that though the payment of salary to the petitioners would not be made till pendency of their writ application (C.W.J.C.No. 1339/1998) but they shall continue to work and mark their attendance as earlier. It, therefore, becomes clear that the earlier order dated 7.10.1998 was reviewed by the controlling authority on 14.12.1999 depriving the petitioners from working at least from 14.12.1999 on justifiable ground. 12 15. This Court, however, would not like to go into the dispute regarding payment of salary for the period January, 1998 to 14.12.1999, inasmuch as it has been claimed by the petitioners that they were reporting for duty but the authority in the order dated 14.12.1999 had held that despite the directions given to them in the order dated 7.10.1998 to report for duty and mark their attendance had never reported on duty nor had in fact performed their duty. Such order dated 14.12.1999 even when assailed by the petitioners in their second writ petition, C.W.J.C.No. 139/2000 was not interfered with and therefore, this Court would find that the petitioners are not entitled for payment of salary for the period January, 1978 to 14.12.1999. 16. The position, however, would be entirely different for the period 14.12.1999 onwards, inasmuch as it was the controlling authority who had himself stopped working of the petitioners and also restrained them from marking their attendance in the name of either holding enquiry in their appointment or receiving guideline from the Director-in-Chief / authorities of the Health Department. There can be no two opinion about it that when ultimately the exercise was completed by the controlling authority he had himself arrived at the finding that there was no flaw in the initial appointment of the petitioners, inasmuch as in the order dated 5.7.2005 it was held as follows: ^^esjs }kjk fu;qfDr dh lkjh izfdz;k dh tkap dh x;h vkSj mls oS| ik;k x;kaA** 17. From the aforesaid facts it is also clear that the five petitioners came to be appointed under the orders of Sri Sarju Prasad, who was the Controlling Authority of the Viklang Bhawan in the year 1997 and all the five petitioners were appointed under a valid and legal selection process adopted by him. It, however, appears that Dr. 13 A.K.Verma, Head of the Department, Physical Medicine and Rehabilitation of Patna Medical College and Hospital who too was somehow associated in Viklang Bhawan till February, 1998 had found some sort of illegality in the appointment of the five petitioners and submitted a report to the Director-in-Chief on 15.12.1997 wherein the Health Commissioner and the Director-in-Chief were requested to pass order for stoppage of payment of salary of the petitioners as also cancelling their appointment. The said Dr. A.K.Verma without receipt of any direction from the Health Commissioner/ Director-in-Chief reply in his reply dated 15.12.1997 had himself allegedly passed the