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2005 Supreme(All) 2522
IN THE HIGH COURT OF ALLAHABAD
YATINDRA SINGH, SUNIL AMBWANI, DEVENDRA PRATAP SINGH
SURYA DEO MISHRA - Appellant
Versus
STATE OF U. P. - Respondents
C. M. W. P. 3308 Of 1994
Decided On : 12/23/2005
A.B.SINGH, M.D.MISHRA, R.C.TRIPATHI, S.P.KESARWANI, SUDHIR AGRAWAL
The main legal point established in the judgment is the entitlement to salary and retiral benefits for an employee continuing in service beyond the superannuation age on the strength of an interim order, and the maintainability of subsequent writ petitions for claiming salary for the same period.
Headnote:
Interim Orders - Service Matters - [Fundamental Rules Chapter II, part 2 to 4, Sick Industrial Companies (Special Provisions) Act, Code of Civil Procedure] - The court discussed the issue of an employee continuing in service beyond the superannuation age on the strength of an interim order and the entitlement to salary and retiral benefits upon dismissal of the writ petition. The court examined various judgments and legal principles related to interim orders, quashing of orders, restitution, recovery of salary, and maintenance of subsequent writ petitions.
Fact of the Case:
The petitioner, a driver in the Irrigation department of the State of Uttar Pradesh, challenged a notice retiring him on attaining the age of 58 years. The first writ petition was dismissed as infructuous, and subsequent petitions were filed for retiral benefits and salary for the period worked under the interim orders. The court considered the legality of the interim orders and the entitlement to salary and retiral benefits.
Finding of the Court:
The court held that the petitioner was entitled to the salary for the period worked under the interim order, but a second writ petition for claiming the salary of the same period was not maintainable. The court also modified the order to prevent recovery/adjustment of the salary paid to the petitioner and directed the respondent to pass a fresh order regarding post-retirement benefits.
Issues: The issues involved the entitlement to salary and retiral benefits for an employee continuing in service beyond the superannuation age on the strength of an interim order, and the maintainability of subsequent writ petitions for claiming salary for the same period.
Ratio Decidendi: The court applied the principle that in service matters, if the incumbent has worked and has been paid, the amount so paid ought not to be recovered unless the claim was fraudulent or based on frivolous grounds. The court also emphasized the prohibition of maintaining a second writ petition on the same fact and the principles of public policy to discourage multiplicity of proceedings.
Final Decision: Writ Petition No. 34927 of 1996 was dismissed, the order dated August 7, 1996 was modified to prevent recovery/adjustment of the salary paid to the petitioner, and the order dated September 25, 1999 was quashed with directions to pass a fresh order regarding post-retirement benefits.
( 1 ) AN important issue, which is often confronting Courts, falls for determination by this Full Bench. An employee, continues in service beyond the superannuation age of 58 years on the strength of an interim order, is fastened with deduction of the amounts paid as salary from his retiral benefits on the dismissal of the writ petition as infructuous.
( 2 ) A learned single Judge of this Court was confronted with the decisions of the Apex court in the case of State of U. P. v. Harendra kunwar 1995 All LJ 1603 and State of Jandk v. Pirzada Ghulamnabi 1998 (9) SCC 102 where it was held that incumbent who has continued in service beyond the age of superannuation on the strength of an interim order, may not be entitled to retain or receive salary in case the writ petition is ultimately dismissed either on merits or as infructuous. And the contrary view also of the Apex Court in the case of Collector of Madras andanr. v. K. M. Rajamanickam 1995 (2) SCC 98 : 1995-II-LLJ-677 and Burn standard Company Ltd. and Ors. v. Dina bandhu Majumdar and Ors. AIR 1995 SC 1499 : 1995 (4) SCC 172 both followed by a learned single Judge of our Court in Ram Khelwan pathak v. State of U. P. and others 1998 All LJ 1575 where it was held that an employee who actually worked on the strength of an interim order would be entitled to his salary even though the writ petition may have been dismissed subsequently. Thus, he referred the issue to a Larger Bench.
( 3 ) MINIMAL facts, necessary for deciding the issue in this petition are:
( 4 ) PETITIONER, a driver in the Irrigation department of the State of Uttar Pradesh challenged a notice dated December 8, 1993 retiring him on January 31, 1994 on attaining the age of 58 years, through Writ Petition No. 3308 of 1994 claiming that retirement age was 60 years. A learned single Judge of this Court stayed the operation of the said notice but clarified that the petitioner would be allowed to continue only until the age of 60 years. This petition was dismissed as infructuous on august 7, 1996. But as no retiral benefits were released, he preferred Writ Petition No. 34927 of 1996 which remains pending. A third Writ petition No. 5649 of 1998 for release of retiral benefits was again filed but was finally disposed off on December 19, 1998 directing the respondent to decide the representation with regard to the claim of retiral benefits treating the retirement age as 58 years. In pursuance thereof, by an order dated September 25, 1998, claim was decided holding that the retiral benefits could be released after adjustment of Rs. 81,836/-, the amount received by the petitioner as salary for two years on the strength of the aforesaid interim order in the first writ petition. This order was subjected to challenge in the fourth Writ Petition no. 12776 of 1999 when the learned single Judge referred it to a Larger Bench.
( 5 ) WHEN these petitions were taken up on october 20, 2004, we framed the following two questions:i) Whether the petitioner is entitled to get salary for the period that he has worked under the interim orders of the Court even if the writ petition (in which the interim order is granted) is dismissed, as infructuous or after holding that he was not so entitled to work?ii) In case the writ petition in which interim order was granted is dismissed without any reference to the salary for the period that the petitioner had worked under the interim orders of the Court then, whether a second writ petition is maintainable for the salary of that period?
( 6 ) WE have heard learned counsel for the parties.
( 7 ) BEFORE we proceed to answer the two questions framed by us, it would be appropriate to examine the law with regard to interim orders.
( 8 ) THE interim orders cannot but merge with the final orders passed in the proceedings as has been held by the Apex Court in the case of Shree Chamundi Mopeds Ltd. v. Church of south India Trust AIR 1992 SC 1439 : 1992 (3)SCC 1. The three Judge Bench wa
