Court No. - 34
Case :- SPECIAL APPEAL No. - 521 of 2019 Appellant :- Brahm Pal Singh Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Rajesh Kumar Dubey Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J. Hon'ble Rajendra Kumar-IV,J.
1. With the consent of learned counsel for parties, we proceed to hear and decide the matter finally at this stage under the Rules of the Court.
2. Heard Sri Rajesh Kumar Dubey, learned counsel for the petitionerb-appellant, learned Standing Counsel for respondents and perused the record.
3. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") has arisen from judgment dated 26.03.2019 passed by learned Single Judge in Writ Petition No.16579 of 2016 dismissing the same.
4. Writ petition was filed by petitioner-appellant (hereinafter referred to as “appellant”) seeking a mandamus commanding respondents to pay salary to the appellant at the minimum of pay scale on the post correspondent to regular employees of Forest Department and for this purpose reliance was placed in State of U.P. & Others Vs. Putti Lal (2006) 9 SCC 337.
5. Learned Single Judge, however, has recorded a finding that appellant was engaged intermittently in 2013 and did not discharge any duty after July 2014 hence not entitled for any relief.
6. However, we find that in para 5 of writ petition, appellant has specifically said as under :
"That it is pertinent to mention here that the petitioner has been granted adhoc bonus of Rs.11845/- also in the year 2014-2015 under the government orders and it has been certified by the Administrative Officer that the petitioner is working more than three years and he has worked more than 240 days in very year. In this respect a true copy of the certificate issued from the office of Divisional Director, Social Forestry Division, Bijnore is being filed herewith and marked as Annexure No.1 to this writ petition."
7. Annexure 1 to writ petition, which is a certificate issued by Regional Forest Officer, Bijnore verify that upto 31st March, 2015 appellant Brahm Pal Singh son of Naresh Kumar has been working for last three years and in every year, he has worked for 240 days.
8. Averments contained in para 5 to the writ petition have been replied in para 40 of counter affidavit filed by State and we do not find any denial of the aforesaid factum of working stated in para 5 of writ petition, though in para 43 of counter affidavit respondents have stated that appellant was kept on daily wage basis in 2013 and did not work upto July, 2014 but still in reply to para 5 of writ petition, in para 40 of counter affidavit, there is no such denial and documents appended to the writ petition are also admitted.
9. It is thus evident that stand taken in paras 41 and 43 in the counter affidavit is contradictory to what has been stated in para 40 read with para 5 of writ petition and since para 5 of writ petition is founded on the documents of respondent department itself, therefore, what has been said by appellant as such cannot be doubted and in our view, matter require more detailed investigation by respondents.
10. Further, so far as entitlement of salary for the period appellant was engaged on daily wage basis, in the matter of Forest Department, it has been held in State of U.P. & Others Vs. Putti Lal (supra) that the incumbent daily wager is entitled to get minimum of the pay scale for the period he worked as daily wage employee and this view has recently been considered by this Court in Rakesh Shukla vs. Principal Secretary, Forest and others (Writ Petition No.33864 of 2003) decided on 11.01.2019 and the Court said as under :-
"28. So far as payment of wages at the minimum of pay scale is concerned, in view of the stand taken by respondents, I have no manner of doubt that so long as petitioner continues to be employed as daily wager, he will be entitled for payment of salary at the minimum of pay scale applicable to regular employees of corresponding status and if it is not being done respondents are directed to make payment accordingly without any further delay and arrears shall be paid within two months from the date of production of a certified copy of this order."
11. In view thereof, writ petition is allowed. Judgment under Appeal dated 26.3.2019 passed by learned Single Judge in Writ Petition No.16579 of 2016 is hereby set aside. The writ petition stands allowed with direction to respondents competent authority to enquire into actual period of working of appellant as daily wager and for said period, he shall be paid salary at the minimum of pay scale applicable to the persons working at par with appellant in Forest Department. The aforesaid exercise shall be completed within three months from the date of production of a certified copy of this order.
Order Date :- 30.4.2019 KA