High Court
Case Details
WP(C) 2229/2006 BEFORE HON’BLE MR. JUSTICE A. K. GOSWAMI Heard Mr. TN Srinivasan, learned counsel for the petitioner. Also heard Mr. S Bo ra, learned Standing Counsel appearing for the respondents. The petitioner, who was serving as Tax Collector under the Guwahati Municipal Co rporation, for short, the Corporation, was initially placed under suspension in contemplation of initiation of a departmental proceeding by an order dated 24.08 .2000. Subsequently, a charge-sheet was served upon the petitioner under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 on 02.09.2000 on the allegati on of the petitioner issuing tax payment receipt in favour of one person for one non-existing holding, which was also beyond his jurisdictional area. The petiti oner submitted a written statement and following a full-fledged departmental enq uiry, he was removed from service by an order dated 05.06.2001. Aggrieved, the petitioner filed a written application before this Court, which w as registered and numbered as WP(C) No. 4162/2001. On consideration of the materials on record, this Court, while setting aside the order dated 05.06.2001, remanded the matter back to the respondent authorities with a direction to furnish a copy of the enquiry report to the writ petitioner along with a notice proposing penalty, other than the penalty of dismissal/remov al from service, by a judgment and order dated 29.03.2004. This Court also directed to reinstate the petitioner in service, pending passing of appropriate orders imposing suitable penalty. Pursuant to the said order dated 29.03.2004 of this Court, the Commissioner, Gu wahati Municipal Corporation issued a notice dated 28.05.2004 asking the petitio ner to show cause as to why penalty by way of reduction of grade from Grade III to Grade IV shall not be imposed on him. The copy of the enquiry report was also furnished along with the said notice. The petitioner responded to the said noti
Legal Reasoning
counsel submits that treating that period as ’not on duty’ on the ground of (cid:28)No work, no pay (cid:29), displays total non-application of mind inasmuch as the concept of (cid:28)No work, no pay (cid:29) is applicable only in case of consideration of payment of bac k-wages. He further submits that unless this Court interferes with the direction that the period from 24.08.2000 to 04.02.2005 shall not be treated to be \as on duty (cid:29), the petitioner will not have continuity in service, resulting in grave a dverse consequences for him. Mr. S Bora, learned Standing counsel, appearing for the respondents, submits tha t he has instructions to submit that the period from 24.08.2000 to 04.02.2005 wi ll be treated (cid:28)as on duty (cid:29) for all purposes. However, the petitioner will not be entitled to any back-wages for the aforesaid period on the principle of (cid:28)No wor k, no pay (cid:29). It is also submitted by him that on the teeth of the adjudication ma de by this Court, plea advanced by the counsel for the writ petitioner that no p enalty could have been imposed, is wholly misconceived. It is submitted by him t hat in the facts and circumstances of the case, no interference is called for wi th regard to penalty imposed. The submissions of the learned counsel for the parties have been considered. I h ave also perused the materials on record. In the judgment and order dated 29.03.2004 passed in WP(C) 4162/2001, this Court noted as under: (cid:28)9. There is no doubt that there is some amount of lapse on the part of the writ petitioner in issuing the tax payment receipt without verifying the relevant re gister. However, there is no proof of any malafide intention. Hence, the penalty of dismissal also appears to be disproportionate to the offence admitted to hav e been committed by the writ petitioner. 10. In the facts and circumstances of the case narrated above, this writ petitio n is allowed and the impugned order dated 05.06.2001 is hereby quashed. The matt er is remanded back to the respondent authority with a direction to furnish a co py of the enquiry report to the writ petitioner along with a notice proposing pe nalty other than the penalty of dismissal/removal from service. On receipt of re ply thereof, the disciplinary authority shall pass appropriate orders imposing s uitable penalty in the light of the observation given above. In the meantime, th e petitioner shall be reinstated in service. (cid:29) A reading of the aforesaid paragraphs supports the contention of Mr. Bora that t he disciplinary authority was required to pass appropriate orders imposing suita ble penalty and in absence of any appeal filed by the petitioner, the said order has attained finality. It was also recorded that penalty was disproportionate to the offence admitted t o have been committed by the writ petitioner and it is in the back-drop of the s aid considerations, directions were issued to impose suitable penalty. Therefore , the first contention of Mr. Srinavasan that no penalty could have been imposed is without any merit. The period from 24.08.2000 to 04.02.2005 can be divided into two parts - One fro m 24.08.2000 to 29.03.2004 being the period from the date of suspension to the date of passing of order of this Court and the second from 30.03.2004 to 04.02.2 005 being the period from the date of passing of the judgment and order till the date of actual reinstatement. It is to be noted that directing reinstatement by this Court while rendering the judgment dated 29.03.2004, this Court did not give any direction with regard to payment of back-wages. Apart from that, the petitioner did not render any service from 24.08.2000 to 29 .03.2004 and the same was on account of his being removed from service. The peti tioner having not worked during the said period, this Court is of the considered opinion that the petitioner will not be entitled to back-wages for the said per iod. However, the period from 30.03.2004 to 04.02.2005 stands on a different footing. This Court directed reinstatement of the petitioner pending consideration of th e matter relating to imposition of the penalty. By no stretch of imagination, pe riod of one year can be said to be a reasonable period to be given for implemen ting a direction of the Court in absence of any insurmountable difficulty. No m
Arguments
ce by his representation dated 23.06.2004. Thereafter, the order dated 04.02.2005, impugned in the present petition, was pa ssed by the Commissioner, Guwahati Municipal Corporation. The operative portion of the same reads as under: (cid:28)(i) Reinstatement of the service of Md. Islamuddin Ahmed, Indoor T/C (W/Z) in h is earlier post with immediate effect; (ii) To withhold three (3) regular increments with cumulative effect of Mr. Ahme d as a measure of proportionate penalty on him which will effect from the date o f joining in his service, and (iii) That the periods effecting from 24/08/2000 till the date of his joining in his service shall be treated (cid:28)not on duty (cid:29) in view of settled proposition of La w i.e. (cid:28)No work, no pay. (cid:29) Being aggrieved, the petitioner has filed this writ application. An affidavit-in-opposition was also filed supporting the order dated 04.02.2005. Mr. Srinivasan, learned counsel for the petitioner, at the very outset, submits that in the judgment and order dated 29.03.2004, this Court had recorded a findi ng that there was no proof of any malafide intention on the part of the petition er and therefore, this aspect of the matter having not been considered by the re spondent No. 2, the imposition of penalty by way of withholding 3 (three) regula r increments with cumulative effect is not sustainable in law and the petitioner should not have been imposed with any penalty whatsoever. He further submits that though this Court by its order dated 29.03.2004 directed reinstatement of the petitioner even before consideration of the matter relatin g to imposition of penalty, for no good reasons, order of reinstatement was pass ed only after a long delay of about a year depriving the petitioner from getting regular pay and allowances and in that view of the matter, the petitioner being not in fault, is entitled to pay and allowances for the period between 29.03.20 04, i.e. the date of judgment and order of the Court till he was finally reinsta ted. The last submission advanced by Mr. Srinivisan is with regard to treating the pe riod from 24.08.2000 till the date of his joining as (cid:28)not on duty (cid:29). The learned
Decision
aterial is placed on record by the respondents stating why the petitioner could not be reinstated forthwith. It is apparent that the matter was not dealt with r equired expedition and seriousness that it deserved. Therefore, though the petitioner had not rendered any service during the said pe riod, the same occasioned solely due to inaction of the respondent authorities t o extract service from the petitioner by reinstating him forthwith pursuant to t he direction of this Court and to deny him totally the pay and allowances for th e said period will be inequitable. Under such circumstances, balancing the competing equities, I am of the consider ed opinion that ends of justice will be sub-served, if the petitioner is directe d to be paid 50% of the pay and allowances for the period from 30.03.2004 to 04. 02.2005. Ordered accordingly. This payment shall be made within a period of 4 (f our) months from today. In the result, the period from 24.08.2000 to 29.03.2004 shall be treated (cid:28)as on duty (cid:29) for all purposes except that the petitioner will not be entitled to any ba ck-wages for the period in question. The period from 30.03.2004 to 04.02.2005 sh all be treated as on duty for all purposes. With the aforesaid observations and directions, the writ petition stands allowed to the extent indicated above. No costs.