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Judgment
The petitioners have filed the present petition challenging the order dated 22.02.2014 passed by respondent no.1 by which the respondent no.1 has
treated the period of service from 01.05.1983 to 31.08.1994 as without salary on the principle of “no work no pay†as well as the order dated
03.05.2014 (Annexure P-2) by which the respondent no.6 has deducted the house rent from the provisional retiral dues of late Shri Krishna Kumar
Lal.
Brief facts germane for the instant purpose is that Late Shri Krishna Kumar Lal after clearing the PSC Examination came to be appointed as
Assistant Conservator of Forest, which after training of two years joined on 15.11.1960. However, on 08.04.1965, Shri Lal was removed from service,
which in turn was successfully challenged before this Hon’ble Court by way of M.P. No.490/1967 (vide order dated 22.08.1968). In the
meanwhile, between the period of removal and the decision in the aforementioned writ petition, Late Shri Lal cracked the PSC Examination and came
to be appinted on the post of Lecturer in the State of Madhya Pradesh vide order dated 23.09.1967. Although in pursuance to the order passed by this
Hon’ble Court, Late Shri Lal was reinstated as Assistant Conservator of Forest on 05.12.1968; however, as by then, Late Shri Lal had already
joined the Department of Higher Education, therefore, he relinquished his lien on the post of Assistant Conservator of Forest wherein he continue as
such and was confirmed in the year 1974. At the relevant time, Late Shri Lal was working as Lecturer in the Government Digvijay College,
Rajnandgaon and due to some misunderstanding with the Principal of the College, who became instrumental in getting Late Shri Lal transferred vide
order dated 14.12.1982 to Government College, Ganj Basoda, District Vidisha which came to be resisted by late Shri Lal by way of representation
dates 20.12.1982. However, as Principal was highly prejudiced, allegedly relieved late Shri Lal ex-parte on 24.12.1982.
Late Shri Lal, however, continued at Government Digvijay College, Rajnandgaon and on 15.04.1983, the State Government issued an order and
stayed his transfer up till 30.04.1984; as consequence thereof Late Shri Lal continued on his post at Government Digvijay College, Rajnandgaon.
Further explanations etc. were sought for by Late Shri Lal as also certain complaints were made against the then Principal as he was appointed
illegally. However, the superior authorities took an adverse view of the mater and on 11.07.1983, explanation of Late Shri Lal was called, which
makes it clear that even at that point of time, Late Shri Lal was working in the Government Digvijay College, Rajnandgaon as the communications
were exchanged on that address. However, neither any disciplinary action was taken nor any further orders on transfer were issued by them. A
telegraphic message was received to join at Ganj Basoda, District Vidisha on 15.02.1984. However, the said order was modified on 27.04.1984 which
was communicated to Late Shri Lal on 14.08.1984 i.e. at his place of transfer was modified from Ganj Basoda to Government College, Dongargarh.
All these communications were sent to the petitioner in his capacity as Assistant Professor at Government Digvijay College, Rajnandgaon. It is also
pertinent to mention that further increments and order permitting crossing of efficiency bar was also passed during this period treating late Shri
Lal’s posting at Government Digvijay College, Rajnandgaon. Thus, late Shri Lal continue and so called ex parte relieving order dated 24.12.1984
lost its significance due to the subsequent Government orders there after no relieving order was passed. However, Late Shri Lal due to personal
enmity with the then Principal was not allowed to function and despite the subsequent order, staying the earlier transfer order, modification of place of
transfer etc. Late Shri Lal was treated as relieved at the local level by the Principal himself. Thus, without any formal relieving, late Shri Lal continued
and offered his service on day to day basis at Rajnandgaon itself. Ultimately, when the changed transfer place was communicated to late Shri Lal and
he wanted to joint at the transferred place of posting and intimated the Principal, Government College Dongargarh, the Principal, in turn, informed that
there is no vacancy and he should not come to join. Pursuant thereto late Shri Lal Communicated the same to the higher authorities of the State
Government. However, no clear instructions were forthcoming and Late Shri Lal continued there. A departmental inquiry against Late Shri Lal itself
continue and Late Shri Lal was treated as Assistant Professor, Government Digvijay College, Rajnandgaon all throughout. In fact, subsequently in the
year 1997 itself, same show-cause notice was issued to Late Shri Lal and these show-cause notices were decided on 14.12.1998 wherein it was
decided not to impose any penalty against Late Shri Lal who had superannuated on 31.08.1994. It was in this backdrop despite superannuation, Late
Shri Lal was not being given his pension and after the long period without salary and nothing was being done, which led Late Shri Lal to file a writ
petition before this Hon’ble Court which was registered as W.P. No.6052/2011 (essentially challenging the dies non period whereas entire period
has been treated as dies non and thereafter even no decision on retiral dues was being taken. Vide order dated 08.04.2013 passed in W.P.
No.6052/2011, the said petition was allowed. The order of dies non dated 22.05.1998 was quashed. However, liberty was given to the State
Government, if they so desire to conduct inquiry pertaining to petitioner’s availability from 01.05.1983 to31.08.1994 in Government Digvijay
College, Rajnandgaon to deal with the matter of payment of salary for the said period. However, with or without this decision being in favour of
petitioner, the period was to be reckoned for the purpose of his pension which was to be worked out by treating the entire period served in the Forest
Department for the purpose of pensionary service and all dues worked out and pension fixed in a time bound manner viz. four months. In the garb
conducting the inquiry, the impugned order has been passed by the State of Madhya Pradesh totally ignoring the facts on record and the details of all
the documents submitted by Late Shri Lal, who was terminally ill and in fact died on 08.03.2013. These documents as submitted to the State
Government with a covering list of documents running into more than 300 pages which are on record. However, all this material has been overlooked
in passing the impugned order wherein it has been held that Late Shri Lal was not available at Rajnandgaon without even bothering to have an in situ
inquiry at Government Digvijay College, Rajnandgaon, solely on the basis of assumption in a predetermined manner. The extent of high handedness is
clear from the fact that despite the dies non order quashed, inquiry was stated to treat the same period as dies non for which a contempt petition
bearing Conc.1902/2013 was filed and order dated 20.01.2014 was passed therein. Thus, being caught on the wrong foot, the State Government
ordered that the entire period in question viz. 01.05.1983 to 31.08.1994 be treated as “no work no payâ€. However, the order dated 20.01.2014
makes it absolutely clear that the inquiry was limited only to find out about the presence of Late Shri Lal during the relevant period. A bare perusal of
Annexure P-10 makes it absolutely clear that overwhelming material provided to the concerned respondent (State Government) leaves no manner of
doubt about availability of Late Shri Lal at Rajnandgaon. Needless to mention that after the order dated 20.01.2014 passed by this Hon’ble Court
in Conc. No.1902/2013, the concerned respondent ought to have given a fresh notice to late Shri Lal for appearance in the Inquiry proceedings in the
changed circumstances of the clarificatory order in contempt proceedings. This was also specifically communicated by late Shri Lal vide his letter
dated 27.01.2014. It is one thing to say that employee is available and another thing that he did not work, especially in the light of the fact that when
without relieving order, Late Shri Lal was not allowed to function and repeatedly late Shri Lal was making himself available and offering himself, for
work, as is absolutely clear from the material on record. In fact late Shri Lal has been illegally kept away from working and hence in such
circumstances, principles of “no work no pay†would not apply. Thus, the entire period from 01.05.1983 to 31.08.1994 has to be treated a period
spent on duty and late Shri Lal is entitled for full emoluments and the impugned order dated 22.02.2014. So far as second impugned order viz.
03.05.2014 is concerned, the amount of Rs.2,23,730/- has been directed to be recovered from Late Shri Lal’s retiral dues as house rent for the
period from 01.01.1983 to 24.08.2001, pertaining to occupation of official residence within the College, Rajnandgaon. This itself clearly demonstrates
that the petitioners were continuously available in the College campus itself. However, the legality and validity of this order itself is hit by Section 66(4)
of the M.P. Civil Services (Pension) Rules, 1976. Learned counsel for the petitioners submits that the impugned orders be quashed and petition be
allowed.
Learned counsel for the petitioner argues that the impugned orders passed by the respondents are illegal, arbitrary and violative of fundamental
rights of the deceased employee. He submits that the petitioner no.1 being widow, she is only dependent on the retiral dues on the payment on account
of pay pension and arrears. He further submits that while passing the impugned orders, respondents have not considered the evidence available on
record to demonstrate the presence and availability of late Shri Lal all through out the relevant period for example 01.05.1083 to 31.08.1994 in the
campus of College at Rajnandgaon. The order impugned has been passed without application of mind and in a mechanical way. The impugned orders
are also violative of principle of natural justice as no notices or any opportunity of hearing was provided to the deceased employee. He further submits
that this Court while allowing the writ petition no.6052/2011 has quashed the order dated 22.05.1998 by which the period in dispute has been declared
as dies non by the respondents and the respondents State was further directed to conduct an enquiry with respect to the performance of duty by the
petitioner w.e.f. 01.05.1983 to 31.08.1994 in Government Digvijay College, Rajnandgaon and it is found that the petitioner has work on the said post
then the respondents State of Madhya Pradesh would be obliged to pay the salary to the petitioner for the said period. Thus, while allowing the writ
petition this Court has directed the respondents/State to conduct an enquiry. In pursuance of the directions issued by this Court, the respondents
without conducting any enquiry has passed the impugned order which is contrary to the order passed by this Court. That the order impugned is totally
a non speaking order and while passing the impugned the respondents have not considered the documents produced by the petitioners. Learned
counsel for the petitioner relied on the judgment passed by the Apex Court in the case of K.V. Jankiraman Vs. Union of India reported in 1991(4)
SCC, 109, as well as the judgment passed by this Court in the case of Sita Charan Banwari Vs. M.P. Rajya Bhoomi Vikas Nigam reported inÂ
2003(4), MPLJ, 274.
The respondents have filed their reply and in their reply respondents have denied that the deceased employee has worked in the institution at
Ragnandgaon between period 01.05.1983 to 31.08.1994. It is submitted that vide order dated 14.12.1982, passed by the State Government, deceased
employee who was working on the post of Lecturer at Government Digvijay College, Rajnandgaon was transferred to Ganj Basoda in the same
capacity. In compliance of the aforesaid order, the deceased employee was relieved on 24.12.1982 and he was paid the transfer allowances and
salary of one month in advance, however, the deceased employee did not join at Ganj Basoda and instead represented matter before the State
Government. Thereafter, the State Government has stayed the transfer order of the petitioner to Ganj Basoda on 30.04.1983 vide order dated
15.04.1983 and the Principal of the College at Rajnandgaon was directed that the petitioner be relieved on 30.04.1983 to submit his joining at
Ganjbasoda. This order was communicated to the deceased employee, however, he did not appeared in the College and the deceased employee was
relieved from Rajnandgaon on 30.04.1983. Thereafter, Secretary of Department of Higher Education vide telegram dated 09.02.1984 directed the
deceased employee to submit his joining and take over charge at Ganj Basoda by 15.02.1984. However, he did not complied with the said order and
did not submit his joining at Ganj Basoda. Subsequently, vide order dated 27.04.1984 and amended order dated dated 14.08.1984, deceased employee
was directed to be posted at Dongargarh in place of Ganj Basoda. However, deceased employee did not submit his joining thereto. As the deceased
employee was relieved from Rajnandgaon on 30.04.1983 itself, it was incumbent upon him to vacate the Government accommodation at Rajnandgaon.
However, he did not vacate the Government accommodation. Respondents have further stated that even on attaining the age of superannuation w.e.f.
31.08.1994, deceased employee did not submit any pension papers nor furnished required formalities so that any decision could be taken for settlement
of his retiral dues. The respondents have further stated that in pursuance of the directions issued in W.P. No.6052/2011(s), a show cause notice was
issued to the deceased employee on 05.12.2013 calling upon him to appear for personal hearing, so that issue pertaining to absence from 01.05.1983 to
31.08.1994 could be decided, the deceased employee was informed that in case he does not appear and participate in the enquiry proceedings, the
decision in the matter will be taken as per records available with the department. In spite of receipt of the aforesaid notices, the deceased employee
did not appear and, therefore, another notice was issued on 03.01.2014. In spite of the said order, the petitioner did not appear before the authorities.
Having no alternative left, since there was no rebuttal by the deceased employee to the allegation of unauthorized absence from duties w.e.f.
01.05.1983 to 31.08.1994. The matter was considered on the basis of material available with the department and the order dated 22.02.2014 has been
passed and the deceased employee has been denied the salary for the said period from 01.05.1983 to 31.08.1994 on the principle of “no work no
payâ€. So far as, the order regarding the deduction the house rent from the retiral dues of the petitioners is concerned. The respondents have stated
that the Rule 65(b) and 66(3)(a) of the Pension Rules, 1976 specifically provides that where retiring government servant does not clear government
dues and such dues are ascertainable and the same are recoverable from the gratuity payable to him or from his legal heirs including the claim of
HRA and water charges pending against him. In view of specific provision contained under the Rules, no fault could be found in recovering the
arrears of house rent from the gratuity of the deceased employee.
Learned counsel for the petitioner has filed the rejoinder and in the rejoinder, the petitioner has denied that the deceased employee was relieved
from Rajnandgaon on 30.04.1983. He submits that the order of transfer has been stayed by the State Government itself on 15.04.1983, therefore, the
relieving order dated 24.12.1982 is of no consequence. The deceased employee never relieved on 24.12.1982. Thus he continued to perform his duties,
functions and responsibility as Lecturer at Government Digvijay College, Rajnandgaon all throughout. All communications were addressed to the
deceased employee at his place of posting at Rajnandgaon from where he responded thereto. Thereafter, an order was passed on 27.04.1984 by
which the petitioner was transferred from Ganj Basoda to Dongargarh and he was required to join at Government College Dongargarh. Thus, from
14.12.1982 till the order was modified on 14.08.1984 the petitioner continued to work at Government College Rajnandgaon. After modification of the
transfer order on 14.09.1984, the petitioner has submit his joining at Dongargarh. However, the Principal of Government College Dongargarh did not
permit or accept the joining of the petitioner stating that no vacant post was available in the College and, therefore, the petitioner continued to work at
Rajnandgaon and apprised the higher authorities of the situation. The petitioner has further submitted that he completed all the formalities and
submitted the pension papers before the competent authority one month prior to his date of retirement. The petitioner has further stated that in the
earlier writ petition i.e. W.P. No.6052/2011(s) this Court was pleased to quashed the order of dies non and directed to conduct the enquiry. He
submits that the statement made by the respondents that late Shri Lal did not participate in the enquiry proceeding is false on the face of it. He further
submits that the full enquiry with regard to actual physical presence of late Shri Lal at Rajnandgaon during the relevant period could have been
conducted at Rajnandgaon itself, which was never even attempted. Thus there has been no enquiry, for which, a liberty was granted to the answering
respondents. In absence of any fact finding enquiry respondents siting at Bhopal could not have come to the impugned conclusion and denied the
salary to the deceased employee for the period from 01.05.1983 to 31.08.1994. The petitioners have further denying that he has not responded to the
show cause notices issued to the deceased employee it has stated that the show cause notices was duly respondent to and the critical ailment and
bedridden condition of late Shri Lal was also communicated. Besides this all relevant documents or material were duly communicated to the
answering respondents. Thus, there is no question of avoiding to appear in the enquiry by the deceased employee.
Heard learned counsel for the parties and perused the record. The petitioner has filed the present petition challenging the order dated 22.04.2014
whereby the salary for the period between 01.05.1983 to 31.08.1994 during which the deceased employee was remain unauthorized absent from the
duties has been denied on the principle of “no work no payâ€. The petitioners have also challenged the order dated 03.05.2014 whereby the sum of
Rs.2,23,730/- has been directed to be recovered from the retiral dues of the deceased employee towards the rent of government accommodation. The
deceased employee was working as Lecturer at Government Digvijay College Rajnandgaon in erst while State of Madhya Pradesh. He was
transferred to Government College Ganj Basoda vide order dated 14.12.1982. Against which the deceased employee has submitted a representation
on 20.12.1982 thereafter he was relieved ex parte from Rajnandgaon on 24.12.1982 thereafter, the State Government has passed an order dated
15.04.1983 thereby staying his transfer order dated 30.04.1984 as a consequence thereof, the petitioner continued to work at Government Digvijay
College Rajnandgaon. While the petitioner was posted at Rajnandgaon he submitted a representation against the said transfer order. On his
representation the transfer order was modified on 27.04.1984 and he was directed to be posted at Dongargarh Against the said order, the petitioner
has again submitted a representation and made a request that he may be allowed to continue at Rajandgaon itself. The deceased employee thereafter
retired on 31.08.1994. In the meanwhile, the petitioner has submitted his joining at Dongargarh, however the Principal of Government College
Dongargarh did not permit the petitioner to join there on the ground that the post was not available. Thereafter, the respondents have passed an order
dated 22.05.1998 thereby declaring the period from 01.05.1983 to 31.08.1994 as dies non. The writ petition no.6052/2011 was allowed by this Court
vide order dated 08.04.2013. While allowing the said writ petition this Court has issued the following directions.
“ In view of the foregoing discussions, this writ petition is allowed. The order dated 22.05.1998 (Annexure P-1) is hereby quashed. The
respondent-State of Madhya Pradesh, if so advised, would conduct an enquiry with respect to the performance of duty by the petitioner with effect
from 01.05.1983 to 31.08.1994 in Government Digvijay College, Rajnandgaon and if it is found that the petitioner has worked on the said post, the
respondent-State of the Madhyra Pradesh would be obliged to pay the salary to the petitioner for the said period. The pension case of the petitioner be
immediately prepared for which now the petitioner will fully cooperate with the State of Madhya Pradesh. On finalization of the pension case,
immediately pension be paid to the petitioner within a period of four months from today. All the arrears of pension with effect from 01.09.1994 be
calculated and adjusting the amount already paid to the petitioner, the balance of the arrears of pension be paid to the petitioner within the aforesaid
period of four months. The services rendered by the petitioner be treated as duty period for all purposes in case it is found that the petitioner has
performed the duty on the said post with effect from 01.05.1983 to 31.08.1994. The services rendered by the petitioner in the Forest Department be
also counted along with the pensionable services rendered by the petitioner in the Higher Education Department and accordingly the retiral benefits be
extended to the petitioner. All this exercise be completed within a period of four months, as directed herein above.
Thus this Court has directed the respondents to conduct an enquiry regarding the presence of the petitioner at Rajnandgaon and after making such
enquiry an appropriate order in this regard be passed. In compliance of the directions issued by this Court as per the respondents they have issued
show cause notices to the deceased employee but he did not responded to the same and therefore, impugned order has been passed thereby deducting
the salary to the deceased employee w.e.f. 01.05.1983 to 31.08.1994 on the principle of “no work no pay†and has also issued an order dated
03.05.2014 thereby deducting the house rent from the provisional retiral dues of the deceased employee. In earlier round of litigation, this Court was
pleased to quash the order of dies non and directed the respondents to conduct the enquiry with respect to the performance of the duty by the
deceased employee w.e.f. 01.05.1983 to 31.08.1994 in Government Digvijay College, Rajnandgaon. In the present case, vide order dated 14.12.1982
he was transferred from the Government Digvijay College ,Ragnandgaon to Government College Ganj Basoda, District Vidisha. The petitioner has
submitted a representation against the said transfer order. The petitioner thereafter relieved ex parte from Rajnandgaon on 24.12.1982. On
15.04.1983, the respondents had stayed order of transfer of the petitioner upto 30th April, 1984; as a consequence, whereby the petitioner was allowed
to continue on his post at Ragnandgaon. The petitioner submitted a representation against his transfer order, ultimately by a telegram message, the
petitioner was informed to join on the post in the College at Ganj Basoda. However as the representation of the petitioner against the transfer order
was pending he, therefore, did not join at Ganj Basoda. In the meantime, the respondent passed an order dated 27.04.1984 thereby modifying his
transfer order and he was posted at Government College Dongargarh. This order was communicated to the petitioner on 14.08.1984. Accordingly, the
petitioner sent a telegraphic message regarding his joining at Dongargarh, but it was informed by the Principle of college of Dongargarh that there was
no vacant post available to permit the petitioner to join in the said college. On receipt of this information, the petitioner continued to work in the college
at Rajnandgaon and inform the authorities about such a situation. From the above mention fact it is clear that from 14.12.1982 to 14.08.1984 i.e. on the
date on which the transfer order of the petitioner was modified he continued to work at Rajnandgaon. It is also to be noted that all correspondence has
been made by the respondents to the petitioner at Rajnandgaon. As per the directions issued by this Court it is obligatory on the part of the
respondents to hold the fact finding of enquiry in the matter. However, from perusal of the impugned order, it reveals that no such enquiry was held by
the respondents. The respondents in their reply have stated that the deceased employee has not given any reply to the show cause notices issued by
the respondents. However, the statement made by the respondents is appears to be false. As the petitioner along with this petition has filed a copy of
the reply to the show cause notice dated 05.12.2013 as Annexure P-6 which was sent to the respondent no.1 by speed post. However, while passing
the impugned order, the respondents have not taken into consideration the said reply and passed the impugned order.
So far as the principle of “no work no payâ€Â is concerned that would not be applicable in the present case as the petitioner was willing to
perform the duties, however, due to the illegal act of the respondents he was debarred from performing his duties.
The apex Court in the case of Union of India (supra) in para 25 has held as under :-
  “25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of “no work no pay†is not
applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault
of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason
that F.R. 17(1) will also be inapplicable to such cases.â€
Similarly in the case of Seeta Charan Banwari (supra) this Court in para 5 has held as under:-
“5. The principle of “no work no pay†does not apply where employer creates the situation in which the employee cannot work. The Supreme
Court has held in Union of India Vs. K.V. Jankiraman, (1991) 4 SCC 109: AIR 1991 SC 2010 that the normal rule of “no work no pay†is not
applicable to such cases where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a
case where the employee remains away from work for his won reasons, although the work is offered to him.â€
Thus in light of the aforesaid judgment principal of “no work no pay†would not be applicable in the present case.
That by an order dated 03.05.2014 (Annexure P-2) the respondents have deducted the house rent from the provisional retiral dues in accordance
with the Rule 66 of the Pension Rules. The Rule 66 of the Pension Rules provides for furnishing of surety by retiring Government Servant. The
proviso to sub-rule 4
read as under-:
“Provided that in respect of house rent and water charges, the amount, if any, the claim for which is received after the period of 12 months from
the date of retirement of the Government servant shall not be recoverable from the retired Government servant.â€
As per the said proviso in respect of house rent and water charges, the amount in respect of which the claim has been made after the period of 12
months from the date of retirement of the Government servant shall not be recovered from the retired Government servant. In the present case, the
deceased retired in the year 1994 and the impugned order of deduction has been passed on 03.05.2014 i.e. after a period of 12 months from his date
of retirement.
The Apex Court in the case of Gorakhpur University Vs. Shitla Prasad Nagendra reported in AIR 2001 S.C., 2433 in para 5 has held as under :-
“This Court has been repeatedly emphasising the position that pension and gratuity are no longer matters of any bounty to be distributed by
Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof should be viewed
seriously and dealt with severely by imposing penalty in the form of payment of interest. Withholding of quarters allotted, while in service, even after
retirement without vacating the same has been viewed to be not a valid ground to withhold the disbursement of the terminal benefits. Such is the
position with reference to amounts due towards provident fund, which is rendered immune from attachment and deduction or adjustment as against
any other dues from the employee.â€
Thus as per the judgment passed by the Apex Court in the case of Gorakhpur University (supra), the respondents cannot withhold the retiral dues of
the deceased employee, therefore, the order impugned is contrary to the Rule 66 of the Pension Rules and, therefore, deserves to be quashed.
Thus, in view of the aforesaid, the present writ petition is allowed. The impugned orders dated 22.02.2014 and 03.05.2014 are hereby quashed and
the respondents have directed to pay the salary of the deceased employee to the petitioners w.e.f. 01.05.1983 to 31.08.1994. The respondents are
further directed to release the entire retiral dues of the deceased employee to the petitioners within a period of four months from the date of receipt of
certified copy of the order.