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Judgment
Satish K. Agnihotri, J.—By this position, the petitioner seeks a writ in the nature of mandamus commanding the respondents to release forthwith, the salary of the petitioner, which has been withheld since February, 2006, an further, to pay interest at the rate of 12% per annum. Shri Thomas, learned counsel appearing for the petitioner submits that initially, the petitioner was appointed as Staff Nurse on 20th October, 1972, There after, she was promoted to the post of Nursing Sister in January 1990. By order dated 04th February 2005, the duty of the petitioner was assigned at Matron Office and the petitioner was ordered to report on duty on 06th February, 2005, Which was duly complied with There after, by order dated 14th July, 2005, the respondent No.2 entrusted the entries charge of ward No. 25 and directed the petitioner to take charge within two days, however, due to some administrative problem, the petitioner could not take charge. Again the petitioner was directed to take charge of the Eye O.T which could also not be taken. Thus, vide order dated 3rd August, 2005 the petitioner was placed under suspension and subsequently, departmental enquiry was initiated against the petitioner on charges of noncompliance of the orders, During the departmental enquiry, the petitioner filed an application dated 28th November, 2005 for cancellation of the suspension order and tendered an unconditional apology. The respondent No. 2, by order dated 26th December, 2005 revoked the suspension and the petitioner again resumed her duty in Matorn''s Office. The petitioner was attending her duty regularly, however she was paid salary only up to the month of January, 2006 thereafter, she has not been paid a single penny, for which the petitioner made repeated applications, but all in vain. Even no-reason has been assigned for with holding of her salary. Shri Thomas, further submits that no reason was assigned for with holding the salary and further, the petitioner is being harassed by the authorities mentally.
On the other hand, Shri Bhaduri, learned Panel Lawyer appearing for the State/respondents submits that after revocation of the suspension order, the petitioner again started disobeying the order of his superior officers, Several complaints from the office of Dr. B.R. Ambedkar Hospital, Raipur was received against the petitioner. It is further submitted that the petitioner was attending the office, putting her signatures but was not performing her duty, and created problems for other co-employees. Thus the Joint Director & Superintendent Dr. B.R. Ambedkar Memorial Hospital, Raipur directed the incharge, Nursing Superintendent, Local Hospital, Raipur that since she was not performing her duty, the principle of ''no work- no pay'', he applied in her case. However, the petitioner has been getting salary from the month of October, 2006. Shri Bhaduri further submits that the order dated 28th March 2006. whereby it was directed that the case of the petitioner be treated as ''no work-no pay'', no appeal there against, was preferred before the appellate authority However, no show cause notice was issued to the petitioner before with holding he salary.
Heard learned counsel appearing for the parties, perused the pleadings and documents appended there to.
It is an admitted fact the petitioner was placed under suspension and after tendering her unconditional apology, the order of suspension was revoked and was taken back in duty. There after, the salary for the period from February, 2006 to October, 2006 was with held on account of the order passed on 28th March 2006. However, it is not the case of the respondent/State that any show cause notice was issued to the petitioner before taking the action of with holding of the salary.
On perusal of the documents, it is found that the Joint Director-cum-Superintendent, Dr. B.R. Ambedkar Memorial Hospital i.e. the respondent No. 2 had written to the Director, Medical Education on 19th January, 2006, recommending disciplinary action against the petitioner. Thereafter, the Director, Medical Education, by communication dated 20th February, 2006 (Annexure R/8) wrote back to the respondent No.2 starting that a disciplinary action has been proposed, thus, a departmental enquiry be initiated at the end of the respondent No. 2 and submitted a report for appropriate action. A show cause notice, thereon, was issued) to the petitioner on 26th July, 2005 (Annexure R/9 calling upon her to submit response within a period of three days as to why a departmental enquiry be not initiated against her and further, it was directed by communication dated 01st August, 2005 (Annexure R/10) to appear before the respondent No. 2 on 02nd August, 2005 at 12 O'' Clock, There after, without initiating any enquiry or without affording an opportunity of hearing in respect of the allegations made against the petitioner, by the impugned order, the salary for the period from February, 2006 to October, 2006 was ordered to be withheld on the principle of ''no work-no pay''.
It is trite law that no one can be condemned unheard. Further, denial of principles of natural justice tantamounts to infraction of the provisions of Article 311(2) of the Constitution of India also. The order dated 28th March. 2006 was passed without any show cause notice or any other notice was issued to her, affording any opportunity to put forward her case.
A Constitution Bench of the Supreme Court in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, laid down the principle of natural justice succinctly as under:
202.......It is now well settled that the ''audi alteram partem'' rule which in essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi-judicial orders but to administrative orders affecting prejudicially the party- in question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule which is not the case here. Rules of natural justice do not supplant but supplement the Rules of Law which permeates our Constitution demands that it has to be observed both substantially and procedurally Considering form all aspects Regulation 9 (b) is illegal and void as it is arbitrary, discriminatory and without any guidelines for exercise of the power. Rule of law posts that the power is to be exercised in a manner which is just. Fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination......
The same has been explained further by the Supreme Court in Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, Union of India and Another Vs. Tulsiram Patel and Others, D.K. Yadav Vs. J.M.A. Industries Ltd., , Jaswant Singh Mathurasingh and another Vs. Ahmedabad Municipal Corporation and others, , Sahara India (Firm), Lucknow Vs. Commissioner of Income Tax, Central-I and Another, Dev Dutt Vs. Union of India (UOI) and Others, , The Joint Action Committee of Airlines Pilots Associations of India and Others Vs. The Director General of Civil Aviation and Others,
Applying the well settled principles of law to the facts of the case on hand, the action of the respondent authorities by with holding the salary of the petitioner for the period from February, 2006 to October, 2006 is illegal and the petitioner is entitled to salary for the aforesaid period. The respondent authorities are directed to release the salary for the period from February, 2006 to October 2006, as expeditiously as possible. Resultantly, the writ petition is allowed with no order as to costs.