M. K. Saini v. Indraprastha Power Generation Company Ltd.

1. The appeal impugns the order dated 22nd October, 2019 of disposal of W.P. (C) 3711/2016 preferred by the appellant for direction to the respondents Indraprastha Power Generation Company Ltd. (IPGCL) and Govt. of NCT of Delhi to release the salary of the appellant for the period from 1st February, 2013 to 8th May, 2014, by treating the said period as to have been spent on duty; the Single Judge disposed of the said writ petition by a direction to the respondents IPGCL to look into the factual aspects of the matter especially the assertion of the appellant that as on 18th January, 2013, the appellant had requested the respondents IPGCL to allow him to join the duties and pass a speaking order. 2021:DHC:674-DB

2. This appeal came up before this Court first on 2nd December, 2019, when notice thereof was ordered to be issued and accepted by the counsel for Govt. of NCT of Delhi appearing on advance notice. Today, the counsel for the respondents no.1&2 IPGCL also appears and we have heard the counsels.

3. The counsel for the respondents IPGCL has at the outset stated that in pursuance to the directions of the Single Judge, the respondents IPGCL have issued a letter dated 18th February, 2021 to the appellant, explaining to the appellant the reasons why the appellant is not entitled to the wages as claimed in the writ petition. It is further stated that the said letter has been placed on record of this appeal, under index dated 20th February, 2021.

4. The counsel for the appellant, on inquiry whether he needs to make a fresh challenge to the said communication dated 18th February, 2021, states that no fresh challenge is required to be made.

5. We have thus proceeded to hear the counsels.

6. The appellant, before the writ petition from which this appeal arises, had filed W.P.(C) 579/2013 impugning the order dated 23rd October, 2012 transferring his services from the respondents IPGCL to Pragati Power Corporation Ltd. (PPCL). The said writ petition, being W.P. (C)579/2013 was allowed vide judgment dated 7th April, 2015, (i) recording that it was the case of the respondents IPGCL that there was an in-principle decision of the Board of Directors of IPGCL as well as of PPCL, to merge the two companies and which process of merger was in the process and the order of transfer of the appellant from IPGCL to PPCL had been passed in anticipation of the said merger; (ii) rejecting the said defence of IPGCL, reasoning that it is only after the merger was complete that the services of the appellant would be placed on such duty in the merged company, as would be deemed fit by the management of the merged company but till IPGCL and PPCL was separate entities and the appellant was an employee of IPGCL, his services could not be placed with another entity viz. PPCL, in as much as in the terms of appointment of the appellant there was no provision to the said effect; (iii) reasoning, that merely because IPGCL had chosen to maintain a common seniority list of its employees and the employees of PPCL, the same would not confer any legal entitlement on IPGCL to pass the order dated 23rd October, 2012, of transfer of the appellant to PPCL; and, (iv) quashing the order dated 23rd October, 2012 of transfer of appellant from IPGCL to PPCL and declaring that the appellant was entitled to continue to work with IPGCL, at any of the jobs and at any of the places of work of IPGCL, though after completion of merger, the services of the appellant could be placed in the new company, which would come into existence after the merger of PPCL with IPGCL.

7. After the disposal of the petition as aforesaid, the appellant filed an application in the disposed of writ petition, seeking emoluments for the period for which the same had not been paid i.e. for the period from 1st May, 2014. The said application was disposed of on 3rd November, 2015, observing that the same was beyond of the scope of the writ petition as no such relief was claimed, and liberty was granted to the appellant to avail of separate remedies therefor. It was in pursuance to the aforesaid liberty that the appellant filed the writ petition from which this appeal arises and which writ petition has been disposed of vide the impugned order, reasoning that since there was some dispute as to facts, the matter needed to be looked into further by the respondents IPGCL.

8. The respondents IPGCL in their letter dated 18th February, 2021 stated to have been issued in compliance of the direction in the impugned order, has reasoned that, (i) a letter dated 18th January, 2013 was written by the appellant to the Chairman of the respondents IPGCL informing that the appellant would be able to join his duties as and when he was declared physically and mentally fit by the treating doctors of G.B. Pant Hospital; (ii) another letter dated 18th January, 2013 was addressed by the appellant to the Manager (HR) of the respondents IPGCL in reference to the Memorandum dated 11th January, 2013 vide which it was conveyed that no intimation/leave application had been given by the appellant; (iii) in view of the aforesaid letter, the assertion of the appellant, that on 18th January, 2013 he had requested the respondents IPGCL to allow him to join the duties, is not supported by the records of the respondents IPGCL; and, (iv) that the record of the respondents IPGCL reveals that no leave application was submitted by the appellant despite of the various letters issued to him.

9. The counsel for the respondents has argued, that since the appellant did not do any work for the respondents IPGCL, from 1st February, 2013 to 8th May, 2014, being the period for which the emoluments are claimed, the appellant, following the principle of „no work, no pay‟, is not entitled to any emoluments and the case of the appellant does not fall in any of the exceptions to the said principle. On inquiring, the basis of the aforesaid proposition, the counsel for respondents states that he must have written it on the basis of some judgment but neither is the judgment available with him nor is he able to give the citation thereof.

10. We are unable to agree. Once there is nothing to show that the respondents IPGCL, in spite of the order of transfer of the appellant to PPCL, called upon the appellant, at any time during 1st May, 2014, to join back duty of the respondents IPGCL, the principle of „no work, no pay‟ cannot be invoked. The appellant could not have rendered any work for the respondents IPGCL during the said period, owing to the respondents IPGCL having transferred the appellant to PPCL and which transfer was ultimately quashed vide judgment dated 7th April, 2015 in W.P. (C)579/2013 and which judgment has attained finality. Thus, irrespective of controversy with respect to the medical leave of the appellant, once there is nothing to show that the appellant was given an opportunity to work and did not work, the principle of „no work, no pay‟ cannot be invoked.

11. Though the order was dictated in open court but the counsel for the appellant has e-mailed to us the copy of the judgment in Shiv Nandan Mahato Vs. State of Bihar (2013) 11 SCC 626 holding that when the removal of a workman from service is quashed and reinstatement ordered, the workman could not be denied benefit of back-wages on the ground that he had not worked for the period when he was illegally kept out of service. The counsel for the respondents also has e-mailed to us, (a) Gujarat Electricity Board Vs. Atmaram Sungomal (1989) 2 SCC 602, (b) Somesh Tiwari Vs. Union of India (2009) 2 SCC 592 and (c) judgment dated 19th March, 2012 of the Division Bench of the High Court of Madras in W.P.(C) No.10868/2010 titled Dr. M. Bala Soudarssanane Vs. Government of India, but the same are not found to be of any help to the respondents. In Somesh Tiwari supra, it was only held that the rule „no work no pay‟ is not an absolute rule and is to be applied taking into account all the facts in their entirety and the Division Bench of the High Court of Madras rather held that the principle of „no work no pay‟ cannot be made applicable where the employee is illegally kept out.

12. The Division Bench of this Court in Bharat Heavy Electricals Ltd. Vs. Jitendra Mohan Singh MANU/DE/5852/2017 held that when the order of transfer is quashed, it means that it was a nullity from its inception and in such a case invocation of “no work no pay” rule would not only be inequitable but contrary to the obligation of a public sector undertaking to follow the principles underlined under Article 14 of the Constitution of India. Special Leave Petition (C) No.39605/2017 preferred thereagainst was dismissed on 5th February, 2018.

13. Resultantly, we are unable to accept the explanation of the respondents IPGCL in its counter affidavit and in the letter dated 18th February, 2021 supra and allow this appeal and the writ petition from which this appeal arises, by directing the respondents IPGCL, to, on or before 10th April, 2021, pay to the appellant the emoluments for the period from 1st February, 2013 to 8th May, 2014. However the appellant, for this period, shall not be entitled to any allowances payable on actuals or in lieu of the services rendered. If the emoluments as aforesaid are not paid, they shall also incur interest at the rate of seven per cent per annum from 11th April, 2021 till the date of payment.

14. The appeal is disposed of.

RAJIV SAHAI ENDLAW, J. SANJEEV NARULA, J. FEBRUARY 22, 2021 Ms..