AWADHESH SINGH v. THE STATE OF BIHAR THROUGH SECRETARY, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, PATNA & Ors.

learned counsel for the State. The petitioner had moved earlier this Court challenging order of his termination in the writ application. He had contended that he was validly appointed as Driver in the year 1996 on regular basis and he could have been terminated only after being given an opportunity of being heard. It was also argued on behalf of the petitioner that since his date of appointment he had actually worked till

13.6.2000; the date from which his services were terminated but he was not paid his remuneration. This Court by order dated 27.3.2001, as contained in Annexure-3, disposed of the writ application of the petitioner finding that the termination of the petitioner was valid as no selection process was adopted at the time of his appointment and he was - 2 - appointed by the respondent-Civil Surgeon only on the basis of a recommendation made by the Health Minister. This Court found that in the circumstances, no relief could be granted to the petitioner. However, this Court also found that materials were available on record to show that petitioner had indeed worked as a Driver under the respondents from

10.12.1996 to 13.6.2000. Therefore, this Court held that the petitioner was entitled for remuneration for the work taken from him. Therefore, petitioner was given liberty to represent before respondent no. 4 for the payment of ‘remuneration’ for the aforesaid period. With the said liberty to the petitioner the writ application was dismissed. Pursuant to the said liberty, petitioner filed his representation vide Annexure-4. On his representation the respondent-Civil Surgeon issued instructions to the respondent Superintendent, Sadar Hospital, Gopalganj, vide Anneuxre-5, for ensuring the compliance of the orders of this Court. Accordingly, the respondent-Superintendent calculated the remuneration of the petitioner on the basis of admissible pay scale to a Driver and sent the same to the Director-in-Chief, vide Anneuxre-6, for release of the requisite amount for payment to the - 3 - petitioner. However, since the payment was not paid within a reasonable time the petitioner has filed this present writ application for a direction to the respondents to pay the remuneration of the petitioner as calculated by the respondent-Superintendent vide Annexure-6. A counter affidavit has been filed in the case. Along with counter affidavit, a communication of the department addressed to the respondent- Superintendent dated 2.11.2000 has been annexed as Annexure-A. From the said Annexure-A, it appears that after the letter of the Superintendent (Anneuxre-6) was received in the department, the department asked the Superintendent to calculate the remuneration of the petitioner at daily wages rate and submit the same to the department. Pursuant to the said letter, respondent-Superintendent calculated remuneration of the petitioner at the daily wages rate and submitted the same to the department vide Annexure-C. The total amount as per this calculation came to Rs. 54,104/-. Learned counsel for the petitioner submits that this amount was offered to the petitioner but he did not receive the amount claiming that he should have been paid his remuneration on the basis of - 4 - calculation as per the admissible pay scale to a post of Driver. He submits that this Court had directed the respondents to pay the remuneration holding that the petitioner was entitled to payment of his remuneration of the period on the basis of pay scale admissible for the post and not on the basis of daily wages payable to a daily wages employee on class-IV posts. In support of his contention, learned counsel for the petitioner has referred to a order of this Court passed in the case of Birendra Kumar Singh Vs. State of Bihar and others reported in 2003(3) PLJR

661. In the said case the appointment of the petitioner was found to be illegal and of having obtained on the basis of some forged documents. After discovery of the said fact the respondent had directed for institution of a police case against the said petitioner and ordered for stopping of the salary of the petitioner. The petitioner challenges the same before this Court. After going through the facts of the case, this Court held that even if the FIR had been instituted against the petitioner for obtaining the appointment on forged documents, order for termination of service of the petitioner had to be passed separately. Therefore, this court held that as long as the order of termination had not been - 5 - passed, the petitioner was entitled to payment of his salary which he was getting from before. In the present case, it is an admitted position that petitioner did not get any payment after getting appointment and for the entire period he was working with the respondents till his services have been terminated. From termination order, which is annexed as Anneuxre-2 to the present writ application, it is clear that the petitioner was held to be entitled for daily wages for the period he actually worked and by terminating his service he was given liberty to file a representation for payment to him of the actual period of working at daily wages rate. This order was not interfered with by this Court though the petitioner had moved this Court against the same. This Court had only observed that he will be entitled to the ‘remuneration’ for the worked taken from him. Thus it is clear that liberty was granted to the petitioner to claim payment on the basis of daily wages rate for the period of his actual working. The case relied upon by the petitioner is apparently distinguishable. In that case, the writ petitioner had started getting payment in the regular scale which was stopped without any specific order of the termination and, therefore, - 6 - this Court held that till an order of termination is passed terminating his service on the ground of obtaining appointment on forged documents, he was entitled to continue to get his salary as paid earlier. In the present case petitioner did not get his salary for a single day. The order of termination itself makes him entitled to receive his remuneration at daily wages rate for the period he had worked and the same was not interfered by this Court. As such, it is clear that the petitioner is not entitled to anything more than his remuneration at daily wages rate for the period he has actually worked as directed by this Court earlier. In the result, this Court does not find any merit in the writ application and the same is dismissed. However, it is made clear that since the remuneration of the petitioner has already been calculated at the rate of daily wages and the total amount comes to Rs. 54,104/- and the stand of the respondent is that the same was offered to the petitioner which he refused to accept, respondent no. 4 Civil Surgeon, Gopalganj is directed to tender the amount to the petitioner within one month from the - 7 - date of receipt/production of a copy of this order and in case the petitioner does not appear before him to receive the amount within that period, the amount shall be sent to the petitioner by way of bank draft through registered post with AD within a fortnight thereafter at his last known address. Let a copy of this order be handed over to the learned counsel for the State. Arvind/ (J.N. Singh, J.)