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Ramesh Pati Tripathi v. State Of U.P. And Others - WRIT - A No. 21318 of 2004  RD-AH 5852 (2 April 2007)
Court No. 25
Civil Misc. Writ Petition No. 21318 of 2004
Ramesh Pati Tripathi
State of U.P. & others
Hon'ble Sudhir Agarwal, J.
Supplementary counter filed by the respondent nos. 2 and 3 in the Court is taken on record. The learned counsel for the petitioner does not propose to file any supplementary rejoinder affidavit and requested that the matter may be heard on the basis of material already on record. Since, the pleadings are complete, with the consent of the learned counsels for the parties, I have heard this matter to decide it finally under the Rules of the Court.
The petitioner Ramesh Pati Tripathi has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding respondent nos. 2 and 3 to pay his salary which has been withheld illegally since 8.7.1984 till date and also to pay his current salary on the post of Principal, Sri Brahmeshwar Sanskrit Vidyalaya, Naubasta, Bengaon, Distirct Fatehpur (hereinafter referred to as ''College').
The facts in brief as stated in the writ petition are that the petitioner was appointed as Principal of the College vide appointment letter dated 20.8.1979 which was approved by the Vice-chancellor, Sampoornanand Sanskrit Vidyalaya, Varanasi (hereinafter referred to as the ''University') vide letter dated 15.10.1979 fulfilling the requirements under Section 31(11) of the U.P. State Universities Act, 1973 (hereinafter referred to as ''1973 Act'). One Sri Yuvraj Singh was elected as Manager of the Committee of Management of the College and in attempt to get his own candidate appointed as Principal of the College, he compelled the petitioner to resign or to face dire consequences. The petitioner was also threatened not to approach police authority or to lodge any first information report. The said Manager also succeeded in obtaining petitioner's resignation forcibly on 20.1.1984, whereagainst the petitioner made a complaint to the Deputy Director of Education, Chaturth Mandal, Allahabad vide letter dated 20.8.1984. The matter remained pending and neither the petitioner was allowed to function as Principal of the College nor the resignation was accepted but the said manager got one person appointed as Principal of the College on 7.9.1988 whereagainst the petitioner approached this Court in Writ Petition no. 20260 of 1988 stating that against the aforesaid action of the Management, he has made representations before the Chancellor but nothing has been done so far. The aforesaid writ petition was disposed of vide judgment dated 2.7.1996 as hereinafter :
"Petitioner was a Principal of Sri Brahmeshwar Sanskrit Vidyalaya, Naubasta, Bengoan, District Fatehpur (here in after referred to as the College.) According to the Management petitioner resigned from service and he stands removed pursuant to his resignation after the approval of the Vice Chancellor of Sampurnanand Sanskrit Vishwa Vidyalaya, Varanasi (herein after referred to as University) Against the aforesaid order of the Vice Chancellor petitioner has filed a representation before the Chancellor under Section 68 of the U.P. State Universities Act. In paragraph 24 of the writ petition it has been stated that the said representation has not been decided so for. Learned counsel for the petitioner at the bar has also made a statement that the representation is still pending.
We have heard the learned counsel for the petition.
As the petitioner has already availed of the alternative remedy of representation before the Chancellor, we do not think it fit and proper to interfere with the matter at this stage. However, in view of the facts and circumstances of the case, petitioner's representation is liable to be decided at the earliest.
This writ petition is accordingly disposed of with the observation that the chancellor will decided the petitioner's representation at the earliest. Petitioner will file proof of having filed the representation before the Chancellor along with the certified copy of this order within a month from today.
July 2, 1996 Sd. R.A . Sharma
Sd. D.K. Seth"
Consequently, the Chancellor decided the matter vide order dated 13.2.1998 wherein it was observed that as per the comments sent by the University, the alleged resignation of the petitioner was never approved by it and Management was also restrained from not holding any selection for appointment to the post of Principal. Therefore, no cause of action survive to the petitioner since neither his resignation has been accepted nor any fresh selection for appointment to the post of Principal has been taken by the Management and, accordingly, the representation was disposed of. Consequently, the matter was reconsidered by the Management and vide its resolution dated 5.1.2003, it held that the petitioner is validly appointed by the College and should be allowed to function as such and should also be paid salary. The petitioner, therefore, was allowed to function as Principal on 1.4.2003 from which date he again started working as such. However, since he was not paid any salary from January 1984 and onwards despite the fact that neither he was terminated nor his resignation was approved in accordance with provision of the statute, therefore, claiming salary of the aforesaid period and consequently, a representation was made by the petitioner on 5.2.2003 to the Inspector, Sanskrit Pathshala, U.P. Allahabad who referred the matter to the Director for guidance vide his letter dated 2.4.2003 wherein he also stated that the resignation of the petitioner was obtained forcibly though he used to come to the College regularly but was not allowed to sign attendance register. Since no further action was taken, the management also sent a letter dated 7.9.2003 to District Inspector of Schools, Fatehpur recommending for payment of salary to the petitioner. The petitioner also sent a representation dated 27.4.2003 to the Deputy Director of Education (Sanskrit), Directorate of Education, Allahabad. Whereafter the present writ petition has been filed.
The learned counsel for the petitioner submitted that neither he was paid salary since January 1984 and onwards nor even after allowing him joining in the College on 1.4.2003, he has been paid current salary and the action of the respondents, therefore, is illegal, arbitrary and violative of Articles 16 and 21 of the Constitution of India.
The respondent nos. 5 has filed counter affidavit supporting the claim of the petitioner. The respondent nos. 2 has filed a counter affidavit sworn on 7.9.2006 stating that power of allotment of funds and distribution of monthly salary to the approved and appointed teachers of Sanskrit schools is vested in Director of Education, U.P. Allahabad vide Government Order dated 10.2.1987, which also provides that allotment of funds and salary shall directly be made to Deputy Inspector of Schools who will ascertain the payment of salary to Sanskrit teachers within stipulated time. It is said that the respondent no. 2 has no power or responsibility in respect to distribution or disbursement of salary to the Sanskrit teachers and has nothing to do with this matter. He has also filed another counter affidavit sworn on 8.9.2006 stating that the conditions of the service of the petitioner are governed by 1973 Act and the First Statute 1978 framed thereunder applicable to the Universities. The petitioner remained absent from College premises from 20.1.1984 to 31.3.2003, i.e., approximately for a period of 20 years and, therefore, in view of the principle of ''no work no pay' he is not entitled for any salary for the said period. It is further stated that the petitioner has been allowed to join on the post of Principal without seeking permission from prescribed authority on 1.4.2003 and his appointment thereto is against the provisions of law, therefore, he is not entitled for any salary. He lastly submits that the committee of management has compelled the petitioner to submit resignation on account whereof he did not render any service and in this matter the respondent nos. 1 to 4 have no role and consequently, no responsibility lies upon them for payment of salary to the petitioner. Further the Director of Education vide letter dated 29.9.2004 informed the Government about entire facts and sought guidance for further action from the State Government.
The respondent no. 4 has filed a separate counter affidavit sworn by Sri Vijai Shankar Misra, Inspector, Sanskrit Pathshala, U.P. Allahabad stating that power to make decision in respect to payment of salary vests in Deputy Director of Education (Sanskrit), Directorate of Education, U.P. Allahabad and, therefore, he has nothing to do in this matter. The University has also filed its counter affidavit stating that the College is not affiliated with the University but presently is affiliated with U.P. Secondary Sanskrit Board. Since the responsibility has been shifted by the various authorities to one or another, the Deputy Director of Education (Sanskrit) Allahabad has also filed a supplementary counter affidavit purporting to have been filed on behalf of respondent no. 2, sworn by Sri Vijai Shankar Mishra, Deputy Director of Education (Sanskrit), Directorate Allahabad, stating that the petitioner has joined the institution after 20 years illegally without any sanction of leave of such a long time and without seeking any permission from the competent authority. Therefore, the respondent nos. 1 to 3 are not responsible for payment of salary to the petitioner during the period of his absence as well as after his joining the College. Another supplementary counter affidavit has been filed by respondent no. 5 stating that the then Manager, Sri Yuvraj Singh was responsible for not allowing the petitioner and as soon as he came to the office, the petitioner was allowed to join and work. It is further stated that the respondent nos. 2 and 3 have withheld salary of the petitioner without any rhyme or reason, though he has not been terminated in accordance with law and, therefore, they are liable to pay salary. Further After joining of the petitioner, he ought to have been allowed his salary but the respondents, educational authorities, have not paid the same despite several attempts by the Management. The University has filed supplementary counter affidavit sworn by Sri Vidyadhar Tripathi, Registrar stating that as per the record of the University, the petitioner joined service on 20.1.1984 and the said resignation was approved by the Assistant Inspector, Sanskrit Pathsahala, U.P. Allahabad. Thereafter, the University nominated specialists for selection to the post of Principal under Statute 16.11(1) of the Statute of the University in the year 1988 but when the petitioner filed writ petition no. 20260 of 1988, the University took decision not to proceed with the aforesaid selection and also not to grant any approval till the matter is decided. It has also filed copy of the order dated 21.2.1977 sent by the University to the Hon'ble Chancellor giving facts of the case in reference to the petitioner's representation filed under Section 68 of 1973 Act, which was required to be decided by this Court vide judgment dated 2.7.1996 passed in the above writ petition.
A counter affidavit has also been filed by respondent no. 3 sworn by Sri Shiv Sewak Singh, posted as District Inspector of Sanskrit Pathshala, Fatehpur stating that he is only the disbursing authority of salary of sanctioned posts on the direction of the Deputy Director (Sanskrit) Shiksha Nideshalaya, Allahabad and the actual control lies with Deputy Director (Sanskrit), Nideshayala and Inspector of Schools, Sanskrit Pathshala, U.P. Allahabad. Since, no directions in regard to payment of salary has been issued by the respondent no. 2, therefore, no action has been taken by him. However, he has also annexed a copy of the letter sent by the respondent no. 2 enquiring from respondent no. 3 as to whether after disallowing petitioner from working, any other Principal was appointed in the College, and whether he was paid salary for the period prior and after 1984, whether he was gainfully employed from 1984 and thereafter, whether he has joined on 1.4.2003 and what was the justification for allowing him to join after such a long time. The Deputy Inspector of Schools has submitted pointwise reply, the copy whereof has been filed as Annexure-2 to the said counter affidavit.
Petitioner has filed rejoinder and supplementary rejoinder affidavits reiterating his averments stated in the writ petition. However, in respect to the supplementary counter affidavit filed on behalf of the University, he has filed supplementary rejoinder affidavit annexing copy of his letter dated 21.1.1984 which is addressed to Up-kulpati of the University pointing out that the resignation has been obtained by the Manager of the College forcibly and, therefore, the same may be rejected. He has also annexed copy of the order dated 19.1.1985 sent by the University to the petitioner referring to the Manager's letter with respect to the petitioner's resignation enquiring as to whether he has submitted any resignation and if so, send its original copy and also file an affidavit that he has submitted the said resignation. Another letter dated 2.5.1985 filed as Annexure SRA-3A to the supplementary rejoinder affidavit sent by the University to Inspector (Sanskrit Pathshala) stating that the petitioner has claimed that his resignation has been obtained forcibly though the management claims that after submitting resignation, he is absent, therefore to clarify the factual position after physical verification of the situation prevailing in the College. He has also filed copies of his letter dated 18.8.1988 in respect to various irregularities committed by the Management with regard to the petitioner's alleged resignation requesting the University not to take any action on the aforesaid resignation. The petitioner has also filed a supplementary affidavit annexing a letter dated 15.10.2004 issued by the District Inspector of Schools, Fatehpur directing the Manager of the College to make payment of salary to the petitioner from 1984 to March 2003 from its own resources since it is the Management who is responsible for not permitting the petitioner to work during the aforesaid period. So far as current salary from 1.4.2003 is concerned, it is said that further action would be taken after decision of Deputy Director of Education (Sanskrit) U.P. Allahabad.
A counter affidavit has been filed dated 7.9.2006 sworn by Sri Sanjay Yadav, Deputy Director (Secondary Education) 4th Region, Allahabad stating that as per the Government Order dated 10.2.1987, the authority of payment of regular monthly salary to teachers of Sanskrit Schools/Colleges vests in Director of Education, U.P., Allahabad, which is to be implemented by the Director of Education, Sanskrit, Directorate of Education, U.P., Allahabad. A copy of the Government Order dated 10.2.1987 has been filed as Annexure CA-2 to the counter affidavit. It is further said that the appropriate decision in the matter of the petitioner has to be taken by the Deputy Director of Education, Sanskrit, Directorate of Education, U.P. Allahabad and not by the respondent no. 2.
Another counter affidavit dated 8.9.2006 sworn by Sri Vijay Shankar Misra, Deputy Director of Education (Sanskrit), Directorate, Allahabad has also been filed stating that the College is affiliated to University and is governed by the provisions of 1973 Act and the Statute framed thereunder, namely, First Statute of 1978. Rule 16.17 Part-2 of the Statute provides that a teacher can proceed on leave for maximum period of continuous five years leaving the leaves granted due to long illness. It is said that the petitioner was absent from premises of the School without leave from 1.4.1984 to 31.3.2003,i.e., about 19 years and more. The Principle of ''no work no pay' is, therefore, applicable and the petitioner is not entitled for the payment of any salary for the period he remained absent from School premises. It is, thus, said that no salary can be paid to the petitioner for the period before he joined as Principal, i.e., 1.4.2003. Further, since the management has allowed the petitioner to join on 1.4.2003 without seeking permission of the prescribed authority and, therefore, also the said payment of the petitioner is illegal and against the provisions of law. Hence, he is not entitled for any salary for the said period also. Further the liability for payment of salary to the petitioner, if any, is on the management and respondents 1, 2 and 3 have no role or responsibility in the matter. It is further contended that except the provision contained in Statute 16.10, there is no provision which permits absence from duty for a period about 20 years. Therefore, the petitioner cannot be paid any salary for such a long time. He was continuously absent from College and did not discharge any duty at all. In any case, the direction for payment of salary should be to committee of management and not to the State authorities.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner vehemently contended that admittedly he was validly appointed Principal of the College and was never terminated from service in accordance with law. It is not disputed that being a substantively appointed Principal of the College, he could not have been terminated under the Statute without prior approval of the Vice Chancellor of the University and it is nobody's case that he was ever terminated. The committee of management of the College in a wholly illegal manner did not permit him to discharge duties from 1.7.1984 till 30.3.2003 for which the petitioner cannot be held responsible. He was throughout ready to serve the institution and discharge his duties as would be evident from the fact that besides representing the matter to the Vice Chancellor of the University, he also approached this Court vide Writ Petition no. 20260 of 1988, which was disposed of vide judgment dated 2.7.1996 directing the Chancellor to take a decision in the matter. Thereupon, the Chancellor decided the matter on 13th February 1998 observing that since the petitioner's alleged resignation was never approved by the University, and the management has also not taken any action for selection and appointment to the post of Principal, the representation has become infructuous. The decision of the Chancellor clearly shows that the petitioner continued to be the Principal of the College throughout and thus was entitled to payment of salary, but the management again took almost five years thereafter to permit him to resume his duties. In these circumstances, the petitioner at no point of time can be said to be guilty of either deliberate absence or latches. Therefore, neither the principle of "no work no pay" would apply against him nor the petitioner can be denied salary for the period he was prevented by the management from discharging his duties and non payment of salary to the petitioner is illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India. It is evident that at no point of time, the petitioner was never terminated from service in accordance with law and, therefore, he continued to be in service. It is admitted case of all the respondents. That being so, there appears to be no justification at all for not permitting the petitioner to work from 1.7.1984 to 30.3.2003. The committee of management is clearly responsible for not permitting the petitioner to work as Principal of the College, though he was validly appointed Principal and had not ceased to hold the office. But the matter would not rest here. The fact that the management did not permit the petitioner to discharge his duties as Principal was brought to the notice of the authorities namely University as long back as in 1984 itself and also to the respondent no. 2 vide letter dated 20.12.1984, yet no action was taken by the authorities against the management so as to ensure that the petitioner may be allowed to discharge his duties as Principal of the College. The Chancellor was also informed of the illegal activities on the part of the management of preventing the petitioner from discharging his duties as Principal, but it appears that the Chancellor also failed to take any effective step ensuring that the petitioner ought to have been allowed to function as Principal of the College. Though this Court directed the Chancellor to take a decision by its judgment dated 2.7.1996, and the Chancellor also took a decision on 13.2.1998 but still no effective steps were taken by any of the official-respondents preventing management from interfering with the functioning of the petitioner as principal of the College. Thus, it cannot be said that in preventing petitioner from discharging his duties as Principal, it is only the committee of management which is solely responsible, but in my view, the respondents 1 to 4 despite having knowledge failed in taking any effective step to ensure the function of the petitioner as Principal of the College. They are also equally responsible for inaction causing injustice to the petitioner. For the purpose of application of principle of ''no work no pay', it has to be seen as to whether the employee has failed to discharge duties on his own or has been prevented illegally by the authorities from discharging his duties.
The question as to when an employee is denied work by the employer, whether he can be denied salary for the said period came up for consideration before the Apex Court in Srikantha S.M. Vs. Bharath Earth Movers Ltd., 2005 (8) SCC 314. The Court held that where the employee is denied work by the employer by not permitting him, in such case the employee would be entitled for full salary for the said period and observed as under :
"We must frankly admit that we are unable to uphold the contention of the respondent Company. A similar situation had arises in J.N. Sirvastava and a similar argument was advanced by the employer, the Court, however, negatived the argument observing that when the workman was willing to work but the employer did not allow him to work, it would not be open to the employer to deny monetary benefits to the workman who was not permitted to discharge his duties. Accordingly, the benefits were granted to him. In Shambhu Murari Sinha II also, this court held that since the relationship of employer and employee continued till the employee attained the age of superannuation he would be entitled to "full salary and allowances" of the entire period he was kept out of service. In Balram Gupta in spite of specific provision precluding the government servant from withdrawing notice of retirement, this Court granted all consequential benefits to him. The appellant is, therefore, entitled to salary and other benefits."
The same view has been followed in Harwindra Kumar Vs. Chief Engineer, Karmik and others, JT 2005 (10) SC 32. In view thereof, it cannot be said that the petitioner is not entitled for any salary whatsoever for the period he was prevented from discharging duties as Principal of the Institution. Moreover, the stand of respondent no. 2 that the petitioner is also not entitled for salary on and after 1.4.2003 since he has been allowed to discharge duties by the management without prior approval of the competent authority also have no force for the reason that neither any provision has been shown to the Court whereunder such an approval or permission of any authority was required nor even otherwise such permission or approval would be necessary, when the petitioner was never terminated from service by any competent authority in accordance with law, and he continued to be a validly appointed Principal of the College though prevented from discharging duties illegally by the respondents. Moreover, despite the order of the Chancellor that the petitioner was never terminated from service and his resignation was never accepted by the authorities, I do not find any justification on the part of the respondents in not paying salary to the petitioner on and after 1.4.2003 and inaction on the part of the respondents is clearly illegal and arbitrary.
In the result, the writ petition is allowed. The respondents are directed to pay entire salary to the petitioner for the period in dispute. He shall also be entitled for payment of interest at the rate of 6% on delayed payment of arrears of salary. However, it is made clear that it is open to the State of U.P. to make necessary enquiry in the matter and find out the authorities responsible for such situation and to recover the entire amount from such authority as also the management of the College who is found responsible for such laches.
The writ petition is allowed with the cost of Rs. 50,000/-.
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