Sham Lal vs State of H.P. & Ors

Jyotsna Rewal Dua, J

Respondents retired the petitioner on his attaining the age of 58 years. Petitioner represented soon thereafter, that his retirement was bad in eyes of law and he was required to be re-inducted in service and allowed to be continued till his attaining the age of 60 years. By the time respondents re-inducted the petitioner into service, he was left with just about 10 months from attaining the age of 60 years. The respondents informed the petitioner that salary for the period in question will not be paid to him but directed the petitioner to apply for Half Pay Leave and Earned Leave for the period from his superannuation at 58 years of age upto his re-induction for regularizing the aforesaid period. Petitioner feels aggrieved against the aforesaid directions and preferred this writ petition on 30.07.2023.

During pendency of the petition, the petitioner superannuated (once again) on attaining the age of 60 years on 31.01.2024. During the course of hearing, learned counsel for the petitioner apprised that respondents have not released retiral benefits to the petitioner on account of non-settling of petitioner’s case for the aforesaid period.

Background facts.

2(i). Petitioner was engaged as Beldar on 01.04.1982 in the office of Block Medical Office, Gangath, District Kangra, where he worked till September, 1997, on part-time basis.

2(ii). Pursuant to recruitment process initiated by the respondents-State, petitioner was selected as Daily Waged Peon/Safai Karamchari. He accordingly joined, as such, in Block Medical Office, Indora, on 25.03.1998. He was transferred to Mand/PHC Paral, where he worked till the year 2008. Petitioner’s services were regularized in March, 2008. He was, thereafter, transferred to New PHC, Rehan, District Kangra, Block Fatehpur.

2(iii). On 21.02.2018, respondents-State issued a notification concerning retirement age of Class IV Government employees amending Rule 56 of the of the Fundamental Rules, as under:-

“Short title and   commencement:-  1. 1) These rules may be called Fundamental (in their application to the State of Himachal Pradesh) First Amendment, Rules, 2018.

(2) These rules shall come into force from the date of publication in the Rajpatra (e-Gazetee), Himachal Pradesh.

Amendment of Rule- 56                      2. In rule-56 of the Fundamental Rules after the second proviso to clause (e), the following third proviso shall be inserted, namely:-

"Provided further that a Class-IV Government servant appointed on part-time/daily wages basis prior to 10.05.2001 and regularized on or after 10.05.2001 shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years." ”

2(iv). Respondents superannuated the petitioner from Block Medical Office on 31.01.2022, at that time, the petitioner was 58 years of age.

2(v). It is the grievance of the petitioner that the respondents could not have retired him on 31.01.2022 as he was entitled to continue to serve till the age of 60 years as per notification dated 21.02.2018. That soon after petitioner’s retirement on 31.01.2022, he represented to the respondents on 17.03.2022 (Annexure R-2) that in view of Government notification dated 21.02.2018, he was entitled to continue to serve with the respondents till his attaining the age of 60 years. Another, representation was made by the petitioner to the respondents on 24.03.2022 (Annexure P-2) with the same prayer that his superannuation on 31.01.2022 was not in consonance with Government notification dated 21.02.2018 and his superannuation age was 60 years.

2(vi). The case file shows that Chief Medical Officer, Kangra at Dharamshala, on 24.03.2022 directed the Block Medical Officer, Fatehpur, District Kangra to conduct an inquiry into the matter regarding petitioner’s retirement at 58 years and to submit the report to him. The Block Medical Officer, Fatehpur, District Kangra, constituted a Committee on 26.03.2022 for holding the inquiry in the matter. The Committee submitted its report to the Block Medical Officer, Fatehpur, District Kangra, on 29.03.2022 (Annexure R-5), relevant portion of which reads as under:-

“Nowhere, we could find record of his being Daily wager paid worker from 1998 to 20.03.2008 and, while preparing for his retirement paper Sh. Sham Lal did not mentioned length of his service as a daily wage paid worker from 1998 to 20.03.2008 nor produced any certificate/ document about his daily wager paid service length before retirement.

The Office while preparing his retirement documents did not have any evidence that Sh. Sham Lal was daily paid worker before 10.05.2001 and he is entitled for retirement at 60 Years of age according to the notification no. Fin (c)-A(3)-2/2013-L dated 21.02.2018 of Additional Chief Secretary (finance) to the Govt. of Himachal Pradesh.

After retiring on 31.03.2022 Sh. Sham Lal states that he read in the newspaper on 23.02.2022 and realized that he too is entitled for service upto 60 years. He contacted the BMO Office Fatehpur where he was asked to give a representation and attach along with evidence of his service as Daily wage paid worker from the period 1998 to 20.03.2008 before regularization. He states that at the time of retirement in 31st January, 2022, he was unaware about the notification and also that his service is upto 60 years of age. His visit to get service certificate for the period march 1998 to 20.03.2008 from O/o BMO Indora was unsuccessful.

Office of BMO Fatehpur also telephonically requested O/o BMO Indora to give some evidence from 1998 to 20.03.2008. So, that case could be presented to higher authority for. Sh. Sham Lal to get his full benefit. But till now except for a certificate dated 16.03.2022 from O/o BMO Indora, stating that Sh. Sham Lal working as a Daily Wage paid worker in the year 1998, the duration of his service record was not validated. So, keeping in view of above observation Sh. Sham Lal was retired according to the CCS Rules based on record available at Office of Block Medical Office Fatehpur. And at no point Sh. Sham Lal had contacted or requested Block Medical Officer Fatehpur not to retire him as is entitled for service upto 60 year of age before 31.03.2022.”

The Committee reported that the office while preparing the petitioner’s retirement documents did not have any evidence about his having been appointed on daily wages prior to 10.05.2001 and as such, he was to serve till 60 years of age in accordance with Government notification dated 21.02.2018. The Committee in its report also recorded that though there was a certificate dated 16.03.2022 in the office of BMO, Indora, stating that petitioner had worked as daily wage worker in the year 1998 but the aforesaid service record had not been validated, therefore, the petitioner was retired as per CCS Rules based on the record available in the Block Medical Office, Fatehpur, District Kangra. The Committee also highlighted that the petitioner had not contacted or requested the Block Medical Officer, Fatehpur, District Kangra, for continuing him upto 60 years of age prior to 31.01.2022.

2(vii). The case record also shows that petitioner’s file regarding extension of his retirement age was tossed from one table to other, from one authority to other. This compelled the petitioner to continue to represent to the respondents seeking his re-induction, highlighting that he had been wrongly retired at the age of 58 years. Some of these representations, i.e. dated 19.04.2022 (Annexure P-4) & 22.09.2022 (Annexure P-5), have been placed on record.

2(viii). It was on 25.03.2023 that respondents issued an office order directing the petitioner to rejoin his duties immediately. Pursuant thereto petitioner re-joined his duties as Sweeper.

2(ix). On 22.06.2023, the Block Medical Officer, Fatehpur, District Kangra, informed the petitioner that salary for the period w.e.f. 01.02.2022 to 25.03.2023 will not be paid to him, but in case the petitioner would submit his leave case, i.e. Half Pay Leave & Earned Leave for this period, and then depending upon the sanction from the higher authority, the period in question will be regularized for payment as the petitioner had 300 days of Earned Leaves and 268 days of Half Pay Leaves in his leave credit upto 31.01.2022.

Petitioner in his response dated 03.07.2023 to the aforesaid communication, declined to adjust his leave account for the period in question. He raised an issue that he was retired forcibly by the respondents on 31.01.2022 and had not been re-inducted in time by the respondents.

2(x). Since the respondents did not regularize the leave period of the petitioner and did not pay him salary for the period 01.02.2022 to 25.03.2023, the petitioner instituted this writ petition on 04.08.2023 seeking following substantive relief(s):-

“a) That a writ in the nature of certiorari may kindly be issued for quashing the impugned communications dated 22.06.2023 (Annexure P-9) & dated 19.07.2023(Annexure P-11), further, the respondents may be restrained for pressing hard upon the petitioner (Class IV sweeper) to waive off his leave encashment of about 300 days (earned leave and medical leave for counting the period w.e.f. 01.02.2022 to 25.03.2023, when no fault lies with him, in the interest of law and justice.

b) That a writ in the nature of mandamus 'or' any other appropriate writ, order or directions may be issued directing the respondents to pay/release the salary to the petitioner for the period w.e.f. 01.02.2022 to 25.03.2023 along with interest 12% per annum till its realization, in the interest of law and justice.

c) That an enquiry in the matter may be ordered to be held and the erring officials may be brought to the books and the respondents may also be burdened with cost of Rs.1,00,000/- (One lac) for harassment and unnecessary litigation, in the interest of law and justice.”

As previously noticed, during pendency of the writ petition, petitioner superannuated on 31.01.2024 on attaining the age of 60 years. Learned counsel for the petitioner apprised during hearing that the petitioner has not been paid any retiral benefit on account of the dispute pertaining to his having not rendered service for the period 01.02.2022 to 25.03.2023.

Heard learned counsel for the parties and considered the case file.

3(i). Learned counsel for the petitioner contended that it was the duty of the respondents to maintain proper record of their employees. Respondent-State had already issued the notification on 21.02.2018 providing for superannuation of Class-IV employees engaged prior to 10.05.2001, on the last date of the month in which they attained the age of 60 years. Despite this, the respondents made the petitioner to retire on 31.01.2022, i.e. at 58 years of age. Petitioner was a daily waged appointee prior to 10.05.2001. He had repeatedly represented to the respondents, immediately after his retirement, that he was required to be permitted to render duties till his attaining the age of 60 years, i.e. 31.01.2024. For one reason or the other, the respondents kept on tossing his representations. Even the Inquiry Committee in its report dated 29.03.2022, did not dispute the fact that there was force in petitioner’s representation, that he was required to be allowed to serve till the age of 60 years, as he had been engaged as a daily wager prior to 10.05.2001. Respondents still opted to sat on the matter. It was only on 25.03.2023 that they re-inducted the petitioner. Under the circumstances, it is the respondents, who are responsible for not allowing the petitioner to serve during the period in question. The petitioner is entitled to be paid salary for the entire period. Respondents’ order of directing the petitioner to get his Half Pay Leaves and Earned Leaves adjusted against the period in question is unlawful.

3(ii). Learned  Deputy  Advocate General  submitted that petitioner had not represented before his superannuation on 31.01.2022 at the age of 58 years that he was a daily waged appointee prior to 10.05.2001. There was no contemporary record available with the respondents to verify  the  petitioner’s  daily  waged  appointment  prior  to 10.05.2001. The respondents had retired the petitioner on 31.01.2022 in good faith taking his appointment to be of 28.03.2008. After petitioner’s representation to the respondents for his re-induction in service on the basis of his appointment as daily wager prior to 10.05.2001, the respondents got an inquiry conducted in the matter. Correspondence was exchanged with the higher authorities. It was only thereafter, the petitioner could be re-inducted in service on 25.03.2023. There was no mala fide on part of the respondents in retiring the petitoner at the age of 58 years and re-inducting him in service on 25.03.2023. The petitioner, who had not served from 01.02.2022 to 25.03.2023, cannot be paid salary for the said period. Therefore, respondent No.3 was justified in directing the petitioner to get Earned Leaves and Half Pay Leaves, lying in his leave credit, adjusted against the aforesaid period to enable them to regularize the period in question. Learned Deputy Advocate General stated that in view of law laid down in Baldev vs. State of H.P. & Ors. CWP No.2711 of 2017 decided along with connected matters on 22.02.2022., the petitioner is not entitled to the actual monetary benefits for his having not served during the period in question.

Consideration.

Having heard learned counsel on both sides and on consideration of the case file, I find merit in the instant writ petition.

4(i). Respondents have not disputed in the reply that petitioner was appointed on daily wage basis with the respondent-Department on 25.03.1998. Respondents have not disputed the apparent fact that on account of petitioner’s appointment on daily wage basis on 25.03.1998, notification dated 21.02.2018 becomes applicable to him. Consequently, petitioner’s date of retirement would be the last date of the month, he attained the age of 60 years, i.e. 31.01.2024.

4(ii). Respondents retired the petitioner on 31.01.2022, at the age of 58 years. According to the respondents, they did not have the record with them about petitioner’s employment on daily wage basis prior to 10.05.2001. This stand cannot be countenanced. Respondents were the employers of the petitioner. It was for the respondents to maintain petitioner’s service record. Petitioner cannot be faulted for the lapse of respondents for not having requisite record of petitioner’s service and retiring him at the age of 58 years on the ground that they were not aware about petitioner’s appointment as a daily wager on 23.05.1998. It is the respondents, who had regularized the service of the petitioner in March 2008 on his completing requisite years of daily waged service.

4(iii). As per petitioner’s pleaded case he had been orally representing the respondents to let him rejoin his duties immediately after his forced superannuation at the age of 58 years. The lackadaisical conduct of the respondents comes to fore when despite petitioner’s representing in writing to the respondents on 17.03.2022 and then on 25.03.2022, that he was appointed prior to 10.05.2001, no effective steps were taken by the respondents to re-induct him even at that stage after promptly verifying his service record. What followed petitioner’s representations was an inquiry and in the inquiry the report was that the respondents had not validated the service record of the petitioner. Validation of petitioner’s service record, was to be done by the respondents not by the petitioner. Petitioner cannot be blamed for non-performance of duties of the respondents. It is quite surprising that in absence of petitioner’s service record as the respondents have put in, he was superannuated. Respondents have not offered any cogent explanation as to why they retired the petitioner on 31.01.2022 and also why they could not re-induct the petitioner in service on 17.03.2022, when petitioner raised the issue in writing. It is a matter of record that even thereafter petitioner kept on representing every now & then for his re-induction in service.

4(iv). The respondents have not disputed petitioner’s initial engagement as daily wager on 25.03.1998 or the applicability of notification dated 21.02.2018 to him or his entitlement to continue to serve till the age of 60 years. Had the respondents exerted a little into petitioner’s records at the relevant time, he would not have been made to retire at the age of 58 years on 31.01.2022. Assuming for arguments sake that respondents were not aware about petitioner’s engagement on daily wage basis prior to 10.05.2001 and for that reason they retired him on 31.01.2022, then also, on receipt of petitioner’s representation they could have validated his service record, which unfortunately was not done. The tone and tenor of the inquiry report gives the impression as if it was conducted to justify the lapses on part of the respondents in retiring the petitioner at the age of 58 years instead of verifying his service record in order to determine his claim for serving till 60 years of age. As per the inquiry report submitted on 29.03.2022, a certificate dated 16.03.2022 was provided to the Committee from the office of BMO, Indora, that the petitioner was engaged on daily wage basis in the year 1998. Despite this certificate, the petitioner was not re-inducted within reasonable period. He was allowed to rejoin his duties only on 25.03.2023, i.e. a year after his representation.

4(v). In view of above, the principal of No Work No Pay will not be attracted in the instant case. Petitioner was kept away from the duties forcibly by the respondents. In this regard it will be appropriate to refer to Union of India Vs. K.V. Jankiraman & Ors. (1991) 4 SCC 109 that holds that normal rule of ‘no work no pay’ is not applicable to cases where employee although willing to work is kept away from work by authorities for no fault of his. Shobha Ram Raturi vs. Haryana Vidyut Prasaran Nigam Ltd. (2016) 16 SCC 663, was a case, wherein Hon’ble Apex Court in the facts of that case concluded that fault lay with the respondent for not utilizing the services of the appellant (therein) for the period in question. It was held that had that appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering the services for the period in question, the respondent cannot be allowed to press the self-serving plea for denying him wages for the period in question on the principle of No Work No Pay. Relevant part of the judgment reads as under:-

“3. Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31.12.2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilised the services of the appellant for the period from 1.1.2003 to 31.12.2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1.1.2003 to 31.12.2005, the respondent cannot be allowed to press the self serving plea of denying him wages for the period in question, on the plea of the principle of “no work no pay”.”

Hon’ble Supreme Court in State of U.P. vs. Dayanand Chakrawarty & Ors. (2013) 7 SCC 595, held that principle of No Work No Pay is not applicable upon an employee, who is prevented by the employer from performing his duties. Such employee cannot be blamed for having not worked and the principle of No Work No Pay shall not be applicable to such employee. Relevant extract from the judgment reads as under:-

In view of the orders passed by this Court in Harwinder Kamar Harwindra Kumar vs. Chief Engineer, Karmik, (2005) 13 SCC 300, Radhey Shyam Gautam (2007) 11 SCC 507 and Jaswant Singh (2006) 11 SCC 464 it was not open to the High Court to rely on some other decision of this Court, ratio of which is not applicable in the present case for determining back wages of respondents restricting it to be 20% of the basic salary. We observe that the principle of ‘no pay no work’ is not applicable to the employees who were guided by specific rules like Leave Rules etc. relating to absence from duty. Such principle can be applied to only those employees who were not guided by any specific rule relating to absence from duty. If an employee is prevented by the employer from performing his duties, the employee cannot be blamed for having not worked, and the principle of ‘no pay no work’ shall not be applicable to such employee.

In these cases as we have already held that Regulation 31 shall be applicable and the age of superannuation of employees of the Nigam shall be 60 years; we are of the view that following consequential and pecuniary benefits should be allowed to different sets of employees who were ordered to retire at the age of 58 years:

49.1 The employees including respondents who moved before a court of law irrespective of fact whether interim order was passed in their favour or not, shall be entitled for full salary up to the age of 60 years. The arrears of salary shall be paid to them after adjusting the amount if any paid.

49.2 The employees, who never moved before any court of law and had to retire on attaining the age of superannuation, they shall not be entitled for arrears of salary. However, in view of Regulation 31 they will deem to have continued in service up to the age of 60 years. In their case, the appellants shall treat the age of superannuation at 60 years, fix the pay accordingly and re-fix the retirement benefits like pension, gratuity etc. On such calculation, they shall be entitled for arrears of retirement benefits after adjusting the amount already paid.

49.3 The arrears of salary and arrears of retirement benefits should be paid to such employees within four months from the date of receipt of copy of this judgment.”

Result

Ratio of above law applies to the facts of the present case. Respondents’ action in retiring the petitioner on 31.01.2022 at the age of 58 years was unlawful. Despite becoming aware that there was grain of truth in petitioner’s written representations made soon after his retirement that he was to serve till his attaining the age of 60 years, the respondents but for tossing his file from one office to the other did nothing to redress petitioner’s grievances. The endeavour of the respondents in the inquiry proceedings had been to find justification for their wrongful action in retiring the petitioner at the age of 58 years rather than to verify his claim of re-induction in service. It took them 14 months to re-induct the petitioner. In the given facts, where respondents continued to keep the office doors locked, did not open them despite petitioner’s persistent knocking, he cannot be blamed for not being inside the office for doing the work. Respondents cannot derive any advantage out of their going astray in discharge of duties. Principles of no work no pay is not applicable in the instant case.

As a result of above discussion, this writ petition is allowed. Petitioner shall be deemed to be in service till his attaining the age of 60 years, i.e. upto 31.01.2024. More specifically, petitioner shall be deemed to have continued in service w.e.f. 01.02.2022 to 31.01.2024. He shall be entitled for the salary of the aforesaid period. Respondents are directed to release the due & admissible salary to the petitioner w.e.f. 01.02.2022 to 31.01.2024. The salary already paid to the petitioner w.e.f. 25.03.2023 to 31.01.2024 be adjusted. Consequently, the directions issued by the respondents to the petitioner on 22.06.2023 (Annexure P-9) for regularizing the period w.e.f. 01.02.2022 to 25.03.2023, by adjusting the leave to his credit, is set aside. Respondents are directed to pay the admissible emoluments to the petitioner within a period of four weeks from today, failing which amount shall carry interest @ 5% per annum from due date.

The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.