K. Sampornam vs The Director of Medical and Rural Health Service and The Joint Director of Health Services

S.J. Mukhopadhaya, J.—The appellant-writ petitioner, on reinstatement, having not been paid back-wages, preferred Writ Petition for a

direction on the respondents to pay full back-wages. The learned single Judge, by order dated 26.3.2009, dismissed Writ Petition No. 43226 of

2006 on the ground that the appellant-writ petitioner did not perform any duty during the period of termination. The said order is under challenge in

the present Writ Appeal.

As the case can be disposed of on a short point, it is not necessary to discuss all the facts except the relevant one.

The respondents, for filling up different vacancies in the post of Cook in different hospitals, called for names from the Employment Exchange.

The destitute widows, including the appellant-writ petitioner-Sampoornam, R. Malarkodi, R. Kaleeswari, M. Chandran, S. Nirmala and K.

Vasanthi, along with others, appeared for interview on 4.10.1994 in the Office of the Joint Director of Health Services, Salem. They having been

selected, were appointed on 28.11.1994/23.1.1995 and posted in different hospitals, namely Government Hospital, Yercaud, Salem District,

Government Hospital, Attur, Police Hospital, Salem, Government Hospital, Jalakandapuram, Salem District and Government Hospital,

Kanadukathan and Karaikudi Taluk, Town and Children Hospital, Paganari in P.M.T. District. Subsequently, their services were terminated, by

proceedings dated 9.3.1995 and 6.12.1995. All of them moved before the Tamil Nadu Administrative Tribunal, challenging the termination orders.

While the respondents accepted that the appellant and others were destitute widows and were appointed as Cooks, after calling for the names

from the Employment Exchange, and after selection, interview, etc., took a plea that as per the government order, the bed-servant ratio should not

exceed 6:1 and where the bed-servant ratio exceeds 6:1, no fresh appointment ought to have been made. In the case of the writ petitioner and

others, such appointment having been made in contravention of the aforesaid instructions relating to the bed-servants ratio, the termination orders

have been made.

The Tribunal heard the separate Original Applications which were preferred by the terminated employees, including the present Writ Petitioner.

By common order dated 1.4.1997, having taken into consideration that there was no irregularity in the appointments, that the writ petitioner and

others were appointed against such post after following the full procedures and there was no suppression of facts on their part, held that there was

no reason to terminate the services of the appellant-writ petitioner and others, and thereby, set aside the orders of termination and directed the

respondents to issue suitable orders so as to enable the appellant-writ petitioner and others to continue in the respective posts, within two weeks.

The respondents thereafter complied with the order of the Tribunal and reinstated the appellant-writ petitioner and others, by order dated

15.5.1997. The appellant-writ petitioner filed a representation to pay full salary, in the light of the Tamil Nadu Fundamental Rule 54-A(3), but

having not been paid the benefit of arrears of salary, the Writ Petition was preferred, which was dismissed, vide impugned order passed by the

learned single Judge.

Learned Counsel appearing on behalf of the appellant-writ petitioner submitted that as per Fundamental Rule 54-A(3), if an order of dismissal,

removal or compulsory retirement is set aside by the Court on the merits of the case, the period intervening between the date of dismissal, removal

or compulsory retirement, including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and

the date of reinstatement, should be treated as duty for all purposes, and such person is entitled for payment of full pay and allowances for the

intervening period. However, this is disputed by the learned Additional Government Pleader appearing on behalf of the respondents-State.

Next, it is contended by the learned Counsel for the appellant-writ petitioner that the learned single Judge, has failed to take into consideration

that the appellant was forced not to work and therefore, the back-wages cannot be denied on the ground that the appellant did not perform any

duty during the period of termination, as held by the learned single Judge. It was also brought to the notice of the Court that a similarly situated

person, viz., R. Malarkodi, who was appointed along with the appellant-writ petitioner and was terminated, and whose case was also decided by

the common order dated 1.4.1997 passed by the Tribunal, and the said Malarkodi having not been paid the arrears of salary, moved before this

Court in W.P. No. 35542 of 2006, and in the said W.P. No. 35542 of 2006, the learned single Judge, by order dated 23.4.2009, having noticed

that the Tribunal has given direction to continue in their respective posts, and therefore, the respondents cannot go behind the order passed by the

Tribunal and that the condition that the period should be treated as ""no work no pay"" cannot be accepted, since the termination is held to be

invalid, further directed the respondents to treat the services of the said petitioner-Malarkodi from 10.3.1995 to 9.6.1997 as duty for all practical

purposes, including service continuity, increments, pay fixation and terminal benefits, but allowed only 50% of the back-wages on the facts and

circumstances of the case.

We have heard the learned Counsel for the parties and perused the records.

It is not in dispute that the appellant-writ petitioner and others were not dismissed, nor removed, nor compulsorily retired from service,

pursuant to any proceeding and for that, we are of the view that Fundamental Rule 54-A(3) is not applicable to the present case. They cannot

claim for full salary for the period they were out of service. However, it is not in dispute that the Tribunal set aside the orders of termination of the

appellant and others issued on 9.3.1995 and 6.12.1995 and directed the respondents to issue suitable orders, with a further direction to enable the

appellant and others to continue in their respective posts. Such being the position, we are of the view that the learned single Judge in W.P. No.

35542 of 2006 (R. Malarkodi v. Director of Medical and Rural Health Services, Chennai-6 and Anr.), by order dated 23.4.2009, rightly held that

the respondents cannot go behind the order passed by the Tribunal and the condition that the period should be treated as ""no work no pay"" cannot

be accepted, since the termination was held to be invalid.

In the case of termination, like the case in hand, a person is forced by the authorities not to work. Therefore, the principle of ""no work no pay

does not apply. In such background, it is not open for the learned single Judge to hold that the appellant-writ petitioner did not perform any duty

during the period of termination, as observed in the impugned order dated 26.3.2009 in W.P. No. 43226 of 2006.

As the appellant-writ petitioner is similarly situated like that of R. Malarkodi, we are of the view that the appellant-writ petitioner is also entitled

for the same benefit as was allowed in favour of R. Malarkodi in W.P. No. 35542 of 2006, by order dated 23.4.2009.

In view of such discussion, we set aside the impugned order dated 26.3.2009 passed by the learned single Judge in W.P. No. 43226 of 2006,

with a direction to the respondents to treat the services of the appellant-writ petitioner from 9.3.1995 to 9.6.1997 as duty for all practical

purposes, including service continuity, increments, pay fixation and terminal benefits, with a further direction to pay 50% of the back-wages, as the

termination is held to be invalid. The back-wages must be paid to the appellant-writ petitioner, within two months from today, failing which, the

respondents will pay interest @ 8% per annum from the date it fell due till the date of payment.

The Writ Appeal is allowed with the above observations/directions. No costs.