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The employee is not entitled to the salary when he fails to render service to the employer on principle of “no work no pay”: HIGH COURT OF MADHYA PRADESH AT INDORE

The writ petition is dismissed by HIGH COURT OF MADHYA PRADESH AT INDORE in the case of UPENDRA SINGH V. STATE OF M.P. through HON’BLE JUSTICE VIJAY KUMAR SHUKLA

FACTS OF THE CASE
The facts of the case are that the petitioner was appointed as Sub-Inspector in police department and at the relevant time, he was posted at Special Branch, Police Headquarter, Bhopal. A criminal case No.369/96 was registered at Police Station – Agar, Dist. Shajapur for commission of offences under Sections 8/18 and 29 of N.D.P.S. Act. He was put under suspension by order dated 24.02.1997. The petitioner was convicted by the Court of Special Judge, Shajapur in Sessions Trial No.10/1998 and was sentenced to undergo 10 years RI and to pay a fine of Rupees One Lakh. Further he was convicted under Section 29 of NDPS Act and was sentenced to undergo 2 years RI and to pay a fine of Rs.500/- under Section 58 (1) of NDPS Act and sentenced for six months RI and to pay a fine of Rs.500/- and also under Section 211 of IPC, RI for 2 years and fine of Rs.500/- by the judgment dated 04.08.1999. The services of the petitioner were dismissed on account of the conviction by order dated 14.10.1999 as per para 238 of Police Regulations. Against the order of conviction, the petitioner filed an appeal before the High Court, Bench at Indore. The said appeal was allowed by judgment dated 08.11.2006 and the petitioner was acquitted of the charges. The petitioner approached the Department for setting aside his dismissal and reinstating him. He was reinstated by order dated 26.07.2007. His joining was accepted by letter dated 31.07.2007. The said order was amended. The petitioner’s suspension period has been considered to be on duties, but on the basis of no work no pay, his salary has been denied by order dated 08.09.2008. The said order was challenged before this Court in W.P. (s) No.5884/2008 which was disposed of by order dated 21.10.2008 directing the respondents to pass a fresh order in respect of back-wages for the petitioner after hearing him. By the impugned order, the claim for back wages has been rejected which is impugned in the present petition.

JUDGEMENT
In this case, the petitioner was initially convicted by the Court of Special Judge by judgment dated 04.08.1999 for commission of offences under the N.D.P.S. Act and sentenced to RI for 10 years coupled with other conviction and sentences under different provisions. The services of the petitioner were dismissed by order dated 14.10.1999 on the ground of conviction under para 238 of Police Regulations. After the acquittal by the High Court in the appeal by order dated 08.11.2016, the respondents reinstated the petitioner by order dated 26.07.2007. The suspension period of the petitioner has been directed to be considered on duties, but for the period for which he could not work because of remaining in jail due to registration of criminal case and conviction, the petitioner has been denied back wages on the principle of no work no pay. In the present case, the only question for consideration is whether the petitioner is entitled to back wages. The Apex Court in the case of Ranchhodji Chaturji Thakore vs. Gujarat Electricity Board (1996) 11 SCC 603 held that the only question is whether he is entitled to back wages. It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant. Each case requires to be considered in its own backdrop. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. A Division Bench of this Court in the case of Anoop Kumar Shrivastava vs. State of MP (2002) 3 MPLJ 218 held that the claim of the petitioner for payment of salary from the date of dismissal to the date of acquittal is not tenable. The obligation for payment of salary by employer to employee is based on services rendered by the employee to the employer. The employee is not entitled to the salary when he fails to render service to the employer on principle of “no work no pay”. But where the employer is responsible for the employee not being able to render the services, the employer may be, in the given facts of the case, directed to pay salary for the period in question. But where he is not responsible for bringing about the situation when employee cannot render service, the obligation of employer to pay the wages is not there. The Division Bench followed the principle laid down by the Apex Court in the case of Ranchhodji Chaturji Thakore’s case. In view of the enunciation of the law laid down by the Apex Court in the case of Ranchhodji Chaturji Thakore’s case followed in subsequent judgments, the court do not find any illegality in the order passed by the respondents rejecting the claim of the petitioner for grant of back wages. Accordingly, the writ petition is dismissed.
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JUDGEMENT REVIEWED BY SHREYA NIDHI

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