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Judgment
Sanjay Misra, J.—Supplementary affidavit filed by learned Counsel for the Applicant be taken on record. Learned Counsel for the opposite party has filed an affidavit along with an exemption application today. Let the same be taken on record. Office is required to give number to the application.
Learned Counsel for the opposite party has also filed an affidavit of compliance as also one counter affidavit. Let the same be taken on record.
Contempt has been alleged of the interim order dated 8.7.2010 passed in writ petition No. 45238 of 2007 whereby it was provided that in case the Applicant had been formally promoted on the post of Head Clerk he shall be permitted to assume charge and discharge his duties, functions and responsibilities of the post provided there is no legal hurdle in doing so. It has been stated that the Committee of Management filed a Special Appeal No. 1247 of 2010 against the judgment of the learned Single Judge which has been dismissed on 10.8.2010.
An affidavit of compliance has been filed by the Principal of the institution although he is not a party in this contempt petition. It has been stated that by an order dated 4.4.2011 the Applicant has been designated as Head Clerk and has been instructed to work as such. Learned Counsel for the opposite party states that when the opposite party who is Manager of the institution has passed an order dated 4.4.2011 it is a complete compliance of the directions issued in the interim order of the writ court. In the affidavit supporting the exemption application sworn by the Principal of the institution it is stated that the opposite party is very old and has suffered fracture hence is not able to come in person before the court and therefore her presence may be exempted.
A counter affidavit has been filed by the opposite party herself wherein she has taken a different stand. Paragraph 8 of the counter affidavit is quoted hereunder:
That in reply to the contents of paragraph No. 7 and 8 of affidavit it is stated that Educational Authorities were colluded with the Applicant and have exercised in arbitrary and illegal manner and vide letter referred in paragraph under reply, the Management was unduly forced to act upon the illegal order passed by DIOS. The averment contrary to it, also denied. It is further made clear that Applicant cannot be promoted to the higher post as regarding Commission of theft of important record from the office of college by the Applicant a first information report u/s 380 & 454 IPC have been lodged against the Applicant on 5.11.2005 by the Vice Principal of the college at P.S. Dadri (Gautam Buddh Nagar) on the basis of which Case Crime No. 614/2007 is registered and chargesheet No. 4241/2007 had been submitted against the Applicant. The Applicant is facing ST No. 2824/2008 pending before CJM Gautam Buddh Nagar.
From the aforesaid averment it appears that the opposite party is resisting the giving of work to the Applicant in the institution due to reason of filing of FIR, submission of chargesheet and pendency of a sessions trial before the courts.
In the supplementary affidavit filed by the Applicant he has submitted that the Applicant has not been permitted to join on the post of Head Clerk and is not being paid salary hence the interim order passed by the writ court has not been complied with.
Having considered the submission of learned Counsel for the parties and perused the respective affidavits filed by them it appears that the Principal of the college who is not a party in the contempt petition as also the opposite party who is Manager of the institution have passed an order dated 4.4.2011 for permitting the Applicant to join on the post of Head Clerk.
For the payment of salary it has been stated by learned Counsel that salary of none of the employees or staff of the institution has been paid due to non availability of fund/budget and when the fund/budget is made available and salary of other staff and employees of the institution is paid the salary of the Applicant will also be paid.
The counter affidavit of the opposite party has averred that the some criminal sessions trial is pending against the Applicant and therefore it appears that they do not want to take work from the Applicant. If that be the stand the question would be whether an employer can be compelled to take work from his employee even if there are serious allegations about conduct and character of the employee and it is likely to effect the institution. It is a rule position or a position in law taken by the opposite party.
In the counter affidavit it has been stated that against the order passed in Special Appeal which was filed against the interim order of the writ court the Committee of Management of the institution had filed SLP Civil No. CC 3375 of 2011 Committee of Management Sri Shobha Ram Inter College v. Indra Dutt Sharma wherein the SLP was dismissed however the question of law was kept open to be agitated.
Learned Counsel for the opposite party places reliance on the order of the Supreme Court and submits that the law is settled that in case the employer does not want to take work from the employee he cannot be compelled to do so but when there is an order of the writ court duly confirmed in appeal then the employee is to be given benefit of such order including his salary. To that extent learned Counsel for the opposite party has not contested this contempt petition but states that if the employer is entitled in law not take work from its employee but pay him the salary he cannot be compelled to take work. Learned Counsel has submitted that an employee can be entitled to be given work in case there is no allegation of character and conduct against him. He submits that it is the specific case of the opposite party in the counter affidavit that the character and conduct of the Applicant is such as would adversely affect the college in case he is permitted to work.
In these circumstances when the opposite party had designated the Applicant as Head Clerk and is ready to pay the salary it cannot be prima-facie held that there has been no compliance of the directions issued by the writ court. However, in so far as the legal stand taken up by the opposite party is concerned the same requires to be considered after pleadings have been exchanged between the parties.
Learned Counsel for the Applicant may file reply to the counter affidavit filed by the opposite party.
In view of the order passed today (ordersheet) this application has become infructuous and is dismissed as such.