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Judgment
Sanjay Dhar, J
1 The petitioner has challenged order dated 07.10.2021 passed by respondent No.2 whereby representation of the petitioner seeking release of wages/salary from September 2016 to 22.12.2017 has been stopped. A further direction asking the respondents to make payment of the salary from September 2016 to 22.12.2017 along with interest at the rate of 15% per annum has also been sought.
The petitioner claims to be holding the post of a peon on a temporary vacancy with the respondent-Corporation. It is averred in the petition that due to turbulent law and order situation in Kashmir valley post 08.07.2016, life in the valley came to a grinding halt and all offices including the office of respondent-Corporation was closed down for a period of more than three months. It is averred that the office of respondent-Corporation reopened on 6th October, 2016 and when the petitioner joined his duties, he was not allowed to do so. It is alleged that the petitioner was not allowed to mark his attendance and his salary was also stopped compelling him to file a writ petition bearing SWP No.2541/2017. An interim order dated 13.12.2017 came to be passed in the said writ petition pursuant whereto the petitioner joined his duties on 22.12.2017.
3 It is further averred that on an application filed by the petitioner in the aforesaid writ petition, an interim order came to be passed on 04.05.2018 whereby a direction was issued to the respondents to release the legitimately earned wages of the petitioner w.e.f September 2016 to 22.12.2017. The aforesaid writ petition ultimately came to be disposed of on 09.08.2021 whereby it was provided that the petitioner shall make a representation before the respondent-Corporation for considering his claim and the respondents, after giving the petitioner an opportunity of hearing, shall pass a reasoned order regarding release of wages in his favour.
4 It is contended by the petitioner that pursuant to the aforesaid order, he made a representation dated 16.08.2021 before the respondent-Corporation and on 15.09.2021 he appeared before the Committee set up by the respondent-Corporation, but vide the impugned order dated 07.10.2021, the claim of the petitioner for release of his wages from September, 2016 to 22.12.2017 has been rejected on the principle of “no work no pay”.
The petitioner has laid challenge to the impugned order on the ground that he had regularly attended the office after reopening of offices on 06.10.2016, but he was not allowed to join his duties by the respondents. It is further submitted that the communications, stated to have been issued by the respondents asking the petitioner to join the duties, have never been received by him. It also contended that the impugned order has been passed by the respondents mechanically and that the same is liable to be quashed.
The respondents have filed reply to the writ petition. In their reply, it has been contended that the matter involves mixed questions of law and fact which cannot be determined in the writ jurisdiction of this Court. While admitting that the petitioner was appointed as a class-IV employee on a temporary vacancy, the respondents have submitted that the petitioner continued to work with the respondent-Corporation from 07.05.2015 to 08.07.2016. It has been submitted that due to turmoil in the Valley, the branch office of the respondent-Corporation was closed from 09.07.2016 till 05.10.2016, but even after reopening of the office, the petitioner did not resume his duties. It is further averred that the respondents communicated to the petitioner to resume his duties on a number of occasions, but he failed to do so and he did not even put forth his explanation for his unauthorized absence from the office, nor did he respond to the communications addressed by the respondent-Corporation to the petitioner. The respondents have denied that the petitioner had resumed his duties on 06.10.2016 and claimed that he was only allowed to join the office on 23.12.2017 in terms of the directions of this Court passed on 13.12.2017 in SWP No.2541/2017.
It has been submitted that the respondents had clearly taken a stand in their objections to the earlier writ petition that the petitioner is not entitled to salary for the period he has not attended his duties. It is further contended that after the disposal of the earlier writ petition, the petitioner was given an opportunity of hearing by the respondents in terms of order dated 09.08.2021 passed by this Court, but he failed to substantiate his claim, as a result of which, the Committee came to the conclusion that the petitioner is not entitled to wages for the period he has not worked on the principle of “no work no pay”.
I have heard learned counsel for the parties and perused the material on record.
Some admitted facts, which emanate from the pleadings and the record, are required to be noticed. It is the admitted case of the parties that the petitioner was appointed as a peon by the respondent-Corporation on a temporary vacancy. There is no dispute to the fact that the petitioner, since his appointment as a peon, regularly attended his duties until 08.07.2016. It is also not in dispute that the office of respondent-Corporation, in which the petitioner was posted, remained closed due to turmoil in the valley from 09.07.2016 to 05.10.2016.
10 The petitioner claims that on 6th October 2016 he resumed his duties, but he was not allowed to do so and he was not allowed to mark his attendance. According to the respondents, the petitioner never resumed his duties after reopening of the offices and, in fact, they have taken a stand that they have communicated to the petitioner vide their letters dated 15.09.2016 and 06.10.2016 to résumé his duties, but he failed to do so. The petitioner has disputed the receipt of these communications.
It has been contended by the petitioner that vide an interim order dated 04.05.2018 passed in SWP No. 2541/2017, a direction was issued by this Court to the respondents to release legitimately earned wages of the petitioner w.e.f September 2016 to 22.12.2017 and, as such, it was incumbent upon the respondents to comply with the said order and pay salary for the aforesaid period to the petitioner. In fact, the petitioner has, in his representation before the respondents, also relied upon the same order.
In the above context, it is to be noted that order dated 04.05.2018 was an interim order and it was made subject to objections from the other side. In the objections filed by the respondents to SWP No. 4541/2017, it was clearly stated by the respondents that the petitioner had absented himself from the office and despite, having been informed telephonically to join the office, he did not turn up, whereafter communications dated 15.09.2016 and 06.10.2016 were addressed to him. Therefore, it cannot be stated that interim order dated 04.05.2018 has determined the merit of the claim of the petitioner as the same was subject to objections of the respondents. The earlier writ petition, as already noted, was disposed of by this Court vide order dated 09.08.2021 wherein it was provided that the petitioner shall make a representation relating to his claim before the respondent-Corporation. This clearly goes on to show that this Court while deciding the earlier writ petition of the petitioner did not express any opinion about the merit of claim of the petitioner.
In the representation which the petitioner had made before the respondent-Corporation pursuant to the aforesaid order, a copy whereof is annexed to the writ petition, the petitioner has not annexed any document or any material to show that he had resumed his duties on 06.10.2016 or thereafter. In the said representation, he has relied upon the interim order dated 04.05.2018 which, as already stated, did not decide the merits of claim of the petitioner and was only an arrangement subject to the objections of the respondents. In these circumstances, the Committee, set up by the respondents to determine the merits of claim of the petitioner, had no option, but to reject the claim of the petitioner on the ground that there was no material before it in support of the claim.
Apart from the above, the question, whether petitioner had actually resumed the duties after reopening of the branch office of respondent-Corporation on 06.10.2016, cannot be determined in the writ proceedings, particularly when the claim of the petitioner in this regard has been seriously disputed by the respondents. The writ petition, therefore, involves determination of intricate and disputed questions of fact which cannot be done in these proceedings. However, one thing is admitted by the respondents that their offices remained closed up to 5th October, 2016. Thus, the principle of “no work no pay” will not apply in respect of the period, when the petitioner was unable to resume his duties due to closure of the offices. Absence of the petitioner from the office during the aforesaid period cannot be attributed to him and, as such, he is entitled to payment of salary up to 5th October, 2016.
For the foregoing reasons, the writ petition is partly allowed and the respondents are directed to release the salary in favour of the petitioner up to 5th October, 2016. The writ petition to the extent of grant of claim beyond the aforesaid period is dismissed. It shall be open to the petitioner to agitate his remaining claim by taking recourse to a civil remedy.