IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.668 of 2008 IN (CWJC 10328/1992) ==================================================== 1. Phulendra Thakur son of Late Thakur resident of village + P.O Basuki Bihari Tola, Babhanipatti, District-Madhubani. 2. Girja Nandan Singh @ Girja Nandan Pd. Singh son of late Mahendra Prasad Singh resident of village + P.O. Tilak Tajpur, P.S. Rannisaidpur, District-Sitamarhi. 3. Kishori Pandit @ Kishori Prasad Pandit son of Late Lakshman Pandit resident of village + P.O. Bishanpur, District-Muzaffarpur. 4. Dharmendra Kumar son of Samsadist Thakur resident of village Ratanpur P.S.Kamtaul District-Darbhanga. 5. Shivdhyan Sharma son of Sri Shankar Thakur resident of village-Palampur P.O. Mirjapur, P.S. Ahiyapur, District-Muzaffarpur. 6. Ashwini Kumar son of Sri Ramandan Singh, resident of village + P.O. Sahbajpur P.S. Bikhanpur Ahiyapur, District-Muzaffarpur. 7. Kaushal Rai @ Kaushal Kishore Rai son of Bihari Rai resident of village + P.O. Japhan Balahiya District-Muzaffarpur. 8. Raj Kumar Rai son of Sri Shivnandan Rai, resident of village + P.O. Bojhauti District-Vaishali. 9. Ajay Kumar son of Sri Chathu Sah resident of village + P.O. Shekhpura P.S.Kazimohammadpur, District-Muzaffarpur. 10. Mithilesh Ram son of Sri Sukhi Ram resident of village-Harkha, P.S. Latehar, District-Latehar (Jharkhand). ………….. Petitioners-Appellants Versus 1. The State Of Bihar through the Health Commissioner cum Secretary to Govt. in the Health Department, New Secretariat Building, Patna 2. The Additional Secretary to Government in the Department of Health, Medical Education and Family, Welfare, New Secretariat Building, Patna. 3. The Superintendent, Sri Krishna Medical College Hospital, Muzaffarpur, P.S. Uma Nagar, P.S. Ahiyapur, District-Muzaffarpur. 4. The Collector-cum-District Magistrate, Muzaffarpur. …………. Respondents-Respondents. 2 ==================================================== Appearance : For the Appellants : Mr. Chakradhari Sharan Singh, Sr. Advocate : Mr. Praveen Kumar, Advocate : Mr. Shiva Shankar Sharma, Advocate For the Respondents : Mr. Ranjan Kumar, A.C. to AAG-4 ==================================================== CORAM: HONOURABLE THE CHIEF JUSTICE AND HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 6 03.11.2010 Re. Letters Patent Appeal No.668 of 2008 With the consent of the learned advocates, the Appeal is heard and decided today. This Appeal preferred under Clause 10 of the Letters Patent arises from the judgment and order dated 31st July 2008 passed by the learned Single Judge in above C.W.J.C. No. 10328 of 1992 . The appellants before us are the writ petitioners. The appellants were engaged by the respondent No.3, the Superintendent, Sri Krishna Medical College Hospital, Muzaffarpur on different posts such as Cooks, Ward Servants, Kitchen Servants, Helpers etc. on daily wages. The appellants approached this Court under Article 226 of the Constitution in above C.W.J.C. No. 10328 of 1992 for various reliefs. It was the case of the appellants that they were engaged on daily wages since 1985. They had 3 continuously served in the hospital till 30th July 1992. However, under the pretext of financial constraint, the appellants were not paid the daily wages since the month of June 1989. Since July 1992, they were not allowed to sign the muster roll. The appellants, therefore, prayed that their services be regularized and they be paid wages as that of the regular employees on the principle of ‘parity of pay’. They also claimed unpaid wages since 1989. The respondent authorities did not file counter affidavit. The learned Single Judge, under the impugned judgment and order dated 31st July 2008, allowed the writ petition to the extent of the claim for unpaid wages from June 1989 to June 1992. The respondents were directed “to look into the matter and take steps to make payment to the petitioners if they had worked for the aforesaid period.” Feeling aggrieved the appellants have preferred the present Appeal. Learned advocate Mr. Chakradhari Sharan Singh has appeared for the appellants. He has submitted that in absence of the counter affidavit the statements on oath made by the appellants should be treated as true and the reliefs as prayed for ought to have been granted. The learned Single Judge has, however, refused to grant relief for regularization on the ground that the statements made in the writ petition were vague. He submits that though the respondents did not file the counter affidavit in the writ petition, now in the Letters Patent Appeal the respondents have filed a counter 4 affidavit to deny that the appellants had worked on daily wages until June 1992. It is stated that none of the appellants had served since May 1989 and as they had not served since June 1989, they were not paid the wages. Mr. Chakradhari Sharan Singh has also submitted that the aforesaid statement made on oath is belied by the communication dated 11th December 1990 (Annexure-3 to the writ petition) sent by the Superintendent of the Sri Krishna Medical College Hospital, Muzaffarpur. The said communication clearly indicates that the daily wage employees of the hospital were not paid their wages for several months for want of funds. The Superintendent had made a demand for a sum of Rs. 2 lacs for payment of wages to the daily wage employees. Whether the appellants served up to the month of June 1989 or upto June 1992 is a question of disputed fact. It is, however, admitted that since the month of July 1992 none of the appellants is continued in service. Though the appellants prayed for regularization in service, they did not pray for reinstatement or for continuation in service, nor such relief was granted. Thus, admittedly, since the month of July 1992 the appellants have been out of service. The question of their regularization in service, therefore, does not arise. As to the unpaid wages, we may note that though the writ petition had been pending before this Court for 16 years, the respondent authorities did not bother to file counter affidavit or to controvert the statements made in the writ petition. We must, therefore, accept the statements made in the writ petition as true i.e. the appellants served as daily 5 wagers upto June 1992. We may also observe that the counter affidavit has been filed first time in the present Appeal on 2nd April 2010 i.e. after the Appeal was once dismissed on 23rd September 2008, after the order was carried in appeal to the Supreme Court, after the order of remand was made by the Hon’ble Supreme Court under its order dated 4th January 2010. Though it is specifically denied that any of the appellants had served after 1989, there is nothing on the record to support the statement. The affidavit does not disclose the source from which the information is gathered except making a bold statement that the records were perused. We do not have to believe the unsupported statement, moreso, when it is made 18 years after the date of the writ petition. We, in the aforesaid circumstances, proceed on the basis that the appellants continued to serve on daily wages until June 1992 and that they were not paid wages for three years from July 1989 to June 1992. In absence of any material on record, we presume that every appellant must have served around 20 days in a month. We therefore, allow this Appeal partially and direct the respondent No.3, the Superintendent, Sri Krishna Medical College Hospital, Muzaffarpur to pay to each appellant the arrears of wages at the rate of Rs.21/- per day, nearly the rate prevalent at the relevant time. The amount so calculated (Rs. 15,120/-) will be paid to each appellant within eight weeks from today. In lieu of the interest and the cost, each appellant will be paid a sum of Rs.36,000/- in addition to the aforesaid amount of wages. Such amount shall also be paid within eight weeks 6 from today. It is further directed that in the event the respondent No.3 fails to pay the aforesaid amounts within eight weeks as directed, the entire amount will carry interest at the rate of 10% per annum commencing from 1st January 2011 till the date of payment. The impugned order dated 31st July 2008 made by the learned Single Judge stands modified to the above extent. The Letters Patent Appeal stands disposed of in the above terms. Bibhash ( R.M. Doshit, CJ.) (Jyoti Saran, J.)