Ramdas Vaidya vs Municipal Corporation, Sagar

Rajendra Menon, J.—Claiming payment of salary for certain period when the petitioner was prevented from working due to his premature retirement at an age earlier to the age of superannuation, petitioner has filed this writ petition. Petitioner was working in the Municipal Corporation, Sagar, as Safai Karmchari. He was appointed in the year 1963 and was a class-IV employee. Petitioner was retired on the ground that he has completed the age of 60 years on 03/08/2004 vide order Annexure P/2. Being aggrieved by the aforesaid, petitioner file a writ petition before this Court which was registered as W.P. No. 6273/2004 wherein initially an interim protection was granted on 19/08/2004 but the same was vacated on 16/12/2004, however, the petition was finally heard and decided and the petitioner was disposed of with the following directions:-

Assessing the sum totality of the arguments there are a lot of disputed facts raised which require adjudication. In the interest of justice it is directed that the petitioner shall file a fresh representation stating his contentions in detail alongwith the judgment relied on within a week from the date of this order and respondent/Corporation shall decide the same within a period of one month from the date of receipt of such representation. In case of rejection it shall give detailed reasons for doing so. The respondent/Corporation shall also permit the petitioner to be reinstated in service if not relieved according to the rules and grant him all consequential benefits if he is eligible keeping in mind that interim relief was granted to him by this Court earlier.

With these directions the petition is disposed of.

No order as to costs.

C.C. as per rules.

After the aforesaid direction was issued, petitioner was taken back in service and permitted to work upto the age of 62 years, but as full salary for the intervening period has not been granted, petitioner is before this Court.

Shri Uttam Maheshwari, learned counsel for the petitioner places reliance on the judgment rendered by the Supreme Court in the case of Union of India Vs. K.V. Jankiraman, etc. etc., to say that when an employee is illegally deprived from working he is entitled for full salary. Accordingly, contending that in the present case petitioner was prevented from work because of illegal act of the respondents, the petitioner seeks the aforesaid benefits.

Respondents have refuted the aforesaid and points out the petitioner has not worked from 08/11/2004 to 31/08/2006 and therefore, his claim for salary for the aforesaid period cannot be accepted and justified applying the Principle of no work no pay, it is said that apart from salary the petitioner is entitled for and is granted all the other benefits. It is stated by learned counsel for respondent that financial condition of the Corporation is not so good. It is also stated that the High Court while disposing of the writ petition having left it to the Corporation to consider and decide the representation and Municipal Corporation having exercised its discretion and having taken a justifiable decision, no further indulgence is called for. In similar circumstances, order passed in the matter of retirement of an employee working in the Municipal Corporation by a Division Bench of this Court in the case of Makhanlal Sahu and Others Vs. State of M.P. and Others, has been brought to the notice of this Court by Shri G.P. Singh to say that similar issue was involved in the said case also wherein the Division Bench considered the concept of treating the period on the principles of "no work no wages'' and rejected similar prayer.

I have heard learned counsel for parties and perused the record. Normally if an illegal order is passed or an illegal action is taken and if the said action is quashed in a court of law and if the person concerned is restored back to his original position he is entitled for all consequential benefits flowing out due to setting aside the illegal action. However, in case if the bona fide action is taken and ultimately, because of some error of law etc. misinterpretation of law, some mistake is committed and the same is corrected by the Court various factors have to be taken note of and in such a case a consequential benefits can be denied. In the case of K.V. Jankiraman (supra) consideration was with regard to denying promotion to an employee even though he was entitled for promotion because of suspension from work denied the promotion. The law laid down in the said case by the Supreme Court cannot be applied to the present case. However under somewhat similar matter was considered by a Division Bench of this Court in the case of Makhanlal Sahu and others (supra) wherein also a class-IV employee of a Municipal Corporation was retired at the age of 60 years when he was not permitted to work upto 62 years. The Division Bench took note of various factors and held that after reinstatement the employee will not be entitled to salary and period was treated on the principles of no work no wages. If the present case is evaluated in its factual back ground it will be seen that the matter was considered in the year 2005 and it was found by this Court that there was various disputes with regard to interpretation of various provisions of the Municipal Corporation Act and the scheduled appended thereto particularly with regard to classification of an employee in a particular category i.e. class-III or IV etc. it was because of these disputes the petition was disposed of granting liberty to the corporation to take decision. It is not a case where finding the action to be unsustainable and it is quashed and set-aside. On the contrary, after finding there to be some substance in the objection and there being some dispute between the parties the High Court did not interfere and left it to the Corporation to take a decision. It is not a case where the High Court has held the action impugned to be illegal and thereafter directed for reinstatement, on the contrary the matter was disposed of by granting liberty to the employer to take action in accordance with law and the Municipal Corporation in its discretion after taking note of all the facts decided that petitioner can work upto the age of 62 years and entire period shall be counted for all practical purpose without for salary of certain period, I see no reason for interference in the discretion exercised by the Municipal Corporation in the facts and circumstances of the case and its final consideration. Accordingly, finding no ground to interfere, petition stands dismissed.