# Supreintending Engineer Electricity Work Division Prayagraj & Anr v. Israr Ali & Anr

- **Citation:** (2024) 7 ILRA 46
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-02
- **Case number:** Special Appeal Defective No. 345 of 2024
- **Bench:** Mahesh Chandra Tripathi, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/supreintending-engineer-electricity-work-division-prayagraj-anr-v-israr-ali-anr-52284
- **Pages:** 7

## Headnote

CIVIL LAW - Constitution of India,1950 -
Article 226, Allahabad High Court Rules, -
Chapter VIII, Rule 5 - Intra-court Appeal -
against order of Single Judge - respondentpetitioner's claiming a month's extra salary
(honorarium) in every financial year on the
basis of an order issued by corporation
which
was
instituted
with
the
explicit
objective of compensating drivers for the
additional work and hardships they endure -
principle of acquiescence - court finds that,
as respondent-Petitioner's prolonged inaction
and failure to demand the honorarium during
his service period, despite being aware that
he was not performing the duties of a driver,
constitutes acquiescence - although his
designation has never been changed through
any formal order during service period - he
cannot take an advantage of this clerical
mistake - if the corporation will be saddled
to pay the honorarium, as directed by writ
court, will create a huge financial impact for
the corporation - therefore, his claim for the
honorarium is not justified -consequently,
special appeal allowed. (Para - 13, 17, 20,
23)
7 All. Supreintending Engineer Electricity Work Division Prayagraj & Anr. Vs. Israr Ali & Anr. 47
Special Appeal Allowed. (E-11)

List of Cases cited:

## Text

46 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme
Court
allowed
Krupski's
amendment to add a new defendant, after the
period of limitation was over, to relate back
to the time of the original filing, thereby
satisfying
the
applicable
statute
of
limitations. In India, this doctrine or rule has
been incorporated in a number of legislations
and service jurisprudence including number
of Judgments of the Hon'ble Supreme Court
of India. In the case of Delhi Jal Board v.
Mahinder Singh, (2000) 7 SCC 210, the
Supreme Court applied the Doctrine of
Relation Back in service Jurisprudence by
holding that the findings of a disciplinary
enquiry exonerating an Officer would have to
be given effect to as they relate back to the
date on which the charges are framed."

17. It is thus quite evident that
doctrine of relation back would be applicable
in
service
matters
particularly
when
subsequent exoneration or order passed in
favour of an employee relates to the initial
dispute.

18. In view of aforesaid, the
opposite parties are directed to implement the
decision
dated
30.06.2021
upon
the
petitioners with retrospective effect from
09.10.1998. As a consequence thereof, the
petitioners would be eligible for payment of
their arrears of salary with effect from March,
1998 till June, 2021 or till the date of their
superannuation, as applicable.

19. Opposite party no.2 and other
competent authorities shall ensure payment of
arrears of salaries to petitioners within a
period of four months from the date a
certified copy of this order is produced before
authority concerned.

20. Consequently, the writ petition
succeeds and is allowed. Parties to bear
their own costs.
----------
(2024) 7 ILRA 46
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.07.2024

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Special Appeal Defective No. 345 of 2024

Supreintending Engineer Electricity Work
Division Prayagraj & Anr. ...Appellants
Versus
Israr Ali & Anr. ...Respondents

Counsel for the Appellants:
Adarsh Bhushan

Counsel for the Respondents:
C.S.C., Shamim Uddin Khan

CIVIL LAW - Constitution of India,1950 -
Article 226, Allahabad High Court Rules, -
Chapter VIII, Rule 5 - Intra-court Appeal -
against order of Single Judge - respondentpetitioner's claiming a month's extra salary
(honorarium) in every financial year on the
basis of an order issued by corporation
which
was
instituted
with
the
explicit
objective of compensating drivers for the
additional work and hardships they endure -
principle of acquiescence - court finds that,
as respondent-Petitioner's prolonged inaction
and failure to demand the honorarium during
his service period, despite being aware that
he was not performing the duties of a driver,
constitutes acquiescence - although his
designation has never been changed through
any formal order during service period - he
cannot take an advantage of this clerical
mistake - if the corporation will be saddled
to pay the honorarium, as directed by writ
court, will create a huge financial impact for
the corporation - therefore, his claim for the
honorarium is not justified -consequently,
special appeal allowed. (Para - 13, 17, 20,
23)
7 All. Supreintending Engineer Electricity Work Division Prayagraj & Anr. Vs. Israr Ali & Anr. 47
Special Appeal Allowed. (E-11)

List of Cases cited:

1. J N Srivastava Vs U.O.I.( 1998 (9) SCC 559),

2. State of Kerla Vs E K Bhaskaran Pillai (2007
(6) SCC 524),

3. Syndicate Bank Vs K. Umesh Nayak (AIR
1995) SC 319),

4. Union Territory Chandigarh Vs Brijmonhan
Kaur (2007 (11) SCC 488),,

5. U.O.I.. Vs Tarsem Singh (2008 (8) SCC 648).

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.
&
Hon'ble Prashant Kumar, J.)

(Civil
Misc.
Delay
Condonation
Application No. 1 of 2024)

1. Shri Shamim Uddin Khan,
learned counsel for the respondentpetitioner states that he is not inclined to
file an objection to the delay condonation
application and he has no objection in
case delay condonation application is
allowed.

2. For the reasons stated in
affidavit
filed
in
support
of
delay
condonation application, as the same
constitutes sufficient cause for condoning
delay in filing Special Appeal, the delay
condonation application is allowed. The
Special Appeal is treated to have been filed
well within time.

(Order on Special Appeal)

1. Heard Shri Adarsh Bhushan,
learned
counsel
for
the
appellantrespondents and Shri Shamim Uddin Khan,
learned
counsel
for
the
respondentpetitioner.

2. The present intra-court appeal is
preferred against the Judgement dated
15.02.2024 passed by the learned Single
Judge in Writ-A No. 19152 of 2021 (Israr
Ali vs. State of U.P. and others) on the
ground that the relief that has been sought
for by the respondent-petitioner in the
aforesaid writ petition was at belated stage,
as the aforesaid writ petition was instituted
in the year 2021 and respondent-petitioner
was
superannuated
on
30.06.2019,
whereas, the cause of action arose way
back in the year 2011.

3. The learned Single Judge vide
it's order dated 15.02.2024 had finally
allowed the writ petition with a direction to
the Superintending Engineer, Electricity
Works Division, Prayagraj, ordering him to
pay the petitioner, arrears of one month
additional salary (honorarium) from the
financial year 2010-11 until the financial
year till he retired, in accordance with the
Corporation's order dated 5th July, 2011,
together with 6% interest due from the date
that each year's honorarium fell due until
payment.

4. Shri Adarsh Bhushan, learned
counsel for the appellant-respondents has
vehemently submitted that during the year
2010 to 2019, admittedly the petitioner had
not discharged his duty as driver. But on
his request, on account of his suffering
from serious heart ailment and lungs
disease,
appellant-respondents
on
humanitarian ground had not assigned any
work to the respondent-petitioner in the
capacity of driver, and he was assigned
only office work to keep and maintain the
record of files. Even in the counter affidavit
a categorical stand was taken before
48 INDIAN LAW REPORTS ALLAHABAD SERIES
learned Single Judge that the appellantrespondent had released an amount of Rs.
1,39,600/-
in
favour
of
respondentpetitioner with regard to the treatment of
his heart ailment during 05.07.2013 to
18.07.2013 and necessary bills have also
been brought on record alongwith counter
affidavit.

5. In this background, learned
counsel
for
the
appellant-respondents
further submits that it is not in dispute that
the petitioner had performed the work as
driver in the Corporation only till 2010.
Due to his own medical condition, he
moved an application for some ministerial
work and admittedly on the basis of his
insistence, and on humanitarian ground, the
said
request
was
processed
by
the
department and he was accorded lighter
work. No where, in the writ petition it has
been mentioned that he has actually
performed the work of driver. He fairly
states that no formal order to that effect has
although been passed by the department but
admittedly,
the
petitioner
has
not
performed the work as driver in the
Corporation and the said one month
additional salary was also not paid since
year 2010. Further, he had never made any
claim qua the additional one month salary
from the Corporation since 2010 and he
kept mum through out his service period.
He further submits that after two years of
superannuation,
respondent-petitioner
initiated a claim of one month additional
salary w.e.f. 2010 to 2019 after lapse of
almost 12 years by way of filing the
aforesaid writ petition. He submits that the
learned Single Judge erred in law and has
passed the impugned judgement without
considering the above said aspect of the
matter finally allowed the writ petition and
accorded the relief vide order dated
15.02.2024.
6. Per contra, learned counsel for
the
respondent-petitioner
vehemently
opposed the submission advanced by the
appellants-respondents and submits that so
far as the nomenclature of the post of
petitioner in the department is concerned, it
has not been changed and he continuously
got the salary for the post of driver. He
further submits that in view of the order
dated 05th July, 2011 issued by the U.P.
Power Corporation, respondent-petitioner
was entitled to get a month's extra salary
(honorarium) in every financial year, but
appellant-respondents in arbitrary manner
denied the said benefit. He further submits
that aggrieved with the said denial,
petitioner approached this Court by way of
filing writ petition and ventilated his
grievance before the learned Single Judge
and learned Single Judge has rightly
proceeded to consider the order dated 05th
July, 2011 issued by the U.P. Power
Corporation and has accorded the relief and
allowed the petition vide order dated
15.02.2024, which warrants no interference
by this Bench. But, he fairly states that so
far as the actual working of the petitioner is
concerned, actually respondent-petitioner
has not performed his work as driver in the
Corporation, although his designation has
never been changed through any formal
order. In absence thereof, he is entitled for
one month additional salary in every
financial year.

7. After considering the rival
submissions advanced by the parties and
perusal of the record as well as counter
affidavit which is appended alongwith
record of the present appeal, we find that
categorical stand has been taken by the
appellants-respondents that the respondentpetitioner was not assigned the job of driver
from the year 2010 onwards and the same
was
being
outsourced
from
agency.
7 All. Supreintending Engineer Electricity Work Division Prayagraj & Anr. Vs. Israr Ali & Anr. 49
Looking into the serious health condition of
the petitioner, on humanitarian ground, he
was assigned a desk job. Further to meet
out his medical expenses a sum of Rs.
1,39,600/- was granted for his treatment.
Paragraph Nos. 9 and 10 of the counter
affidavit is reproduced herein below for
ready reference :-

"9.
That
the
contents
of
paragraph 13 of the writ petition not
correct
as
stated
the
same
are
misconceived hence denied. From the year
of 2010 to 2019 the work of driving of
vehicle done by the outsource agency and
petitioner was seriously ill due to heart
diseases and lung diseases due to this
reason on the request of petitioner only on
the humanitarian ground petitioner was
done only office work to kept and
maintain the record and file, it is also
pertinent to mention over here the
petitioner
was
received
medical
allowance one lac thirty nine thousand
sis
hundred
(1,39,600/-)
for
the
treatement of heart from 05.07.2013 to
18.07.2013 in the hospital of heart line
cardiac centre Allahabad. A true copy of
the medical bill passed by respondents
along with Medical certificate are being
filed here with and marked as Annexure
no. CA-2 to this Counter Affidavit.

10. That the contents of the
paragraph 14 and 15 of the writ petition
are not correct as stated the same are
misconceived hence denied. The Petitioner
was not work as a driver on the request of
petitioner. Petitioner was done only official
work as record keeper to kept and maintain
the record and work of of driver was done
by outsource agency, So there is no good
ground in this writ petition and devoid of
merit hence this writ is liable to be reject
with cost."

8. Considering the factual situation, it
is evident that the petitioner has never
demanded any additional salary during his
service period from 2010 till his retirement
and at belated stage, attempt has been made
to
get one
month
additional
salary
(honorarium) for the work which he did not
perform.

9. The order dated 05th July, 2011
passed by the U.P. Power Corporation
which provides for the payment of a
month's extra salary (honorarium) in every
financial year to regular drivers of the
Corporation attached to a vehicle is
reproduced herein below:

"विषयः- िाहन चालकों को एक माह के मूल िेतन
को समतुल्य प्रवतपूवति धनरावि (मानदेय) वदये जाने के सम्बन्ध में।

महोदय,

उपरोक्त विषयक उ०प्र० पािर कारपोरेिन वल० के
कायािलय
ज्ञप
सं०
107-काविनी
एिं
िे०प्र०29/पाकावलं/2011-5-पी/90 वदनांक 19.02.2011 द्वारा
यह आदेि जारी वकये गये है वक उ०प्र० पािर कारपोरेिन वल० एिं
उसकी सहयोगी वितरण कम्पवनयों तथा उ०प्र० पािर ट्रान्सवमिन
कारपोरेिन वल० के अन्तगित कार्यरत एवं निर्नित वाहि
चालकों, जो वास्तव िें वाहि से सम्बद्ध हो, को उिकी कनिि
सेवाओं के दृनिगत प्रत्र्ेक नवत्तीर् वर्य िें केवलं एक िाह के
िूल वेति के सितुल्र् प्रनतपूनतय की धिरानि (िािदेर्)
तत्काल प्रभाव से अिुिन्र् होगा।

उक्त सन्दवभित आदेि के वियान्ियन के सम्बन्ध में
क्षेत्रीय कायािलयों द्वारा उठायी गई कवतपय पृच्छाओं के सन्दभि में
मुझे यह सूवचत करना है वक सभी कायिरत एिं वनयवमत िाहन
चालकों को (िाहन आिंवित हो अथिा नहीं) मानदेय अनुमन्य
होगा। इसी िम में मुझे यह सूवचत करने का वनदेि प्राप्त है वक िाहन
चालकों की उपलब्धता होने पर अन्य वकसी द्वारा िाहन चलाया न
जाना सुवनवित वकया जाय, साथ ही उपरोक्त सन्दवभित आदेि वदनांक
19.02.2011 द्वारा तत्काल प्रभाि से अनुमन्य मानदेय का
50 INDIAN LAW REPORTS ALLAHABAD SERIES
आिय चालू वित्तीय िषि 2010-2011 है, न वक आदेि के
वनगिमन की वतवथ से।

उपरोक्त विषय पर प्रकरणानुसार कायिाही वकया
जाना सुवनवित करें।"

(Emphasis Supplied)

10. In the matter at hand, it is
pertinent to note that the order dated 05th
July, 2011 issued by the U.P. Power
Corporation was instituted with the explicit
objective of compensating drivers for the
additional work and hardships they endure,
including overtime and other strenuous
duties associated with their job. The
essence of this order is to provide fair
remuneration to those who fulfil the
specific functions and responsibilities of a
driver,
thereby
acknowledging
and
addressing the unique challenges faced by
these employees in the course of their
duties.

11. However, the application of this
order cannot be distorted to extend benefits
to individuals who have not performed the
requisite duties of a driver. The objective of
the
compensation
order
would
be
undermined if it were used to claim
benefits
without
the
corresponding
fulfilment of duties. The law, in its
intention to provide equitable relief, cannot
be utilized to gain unwarranted advantage
by defeating the fundamental purpose of
recognizing
and
compensating
the
additional efforts and hardships of drivers.
Consequently, the entitlement to such
honorarium is contingent upon the actual
performance of driving duties, and any
deviation from this principle would be
contrary to the legislative intent and the
principles of equity and fairness.

12. The Hon'ble Supreme Court in
the matter of J.N. Srivastava Vs. Union of
India reported in (1998) 9 SCC 559 has
dealt with the principle of "no work no
pay". The Hon'ble Court has clearly held
that the employee would be entitled for the
arrears of salary and other emoluments
only if he is ready and willing to work and
the employer refused to grant him the
work. However, in this case, the employee
respondent-petitioner was not ready and
willing to work as a driver, on the ground
of his ill health and on his own accord, he
chose to take a much comfortable desk job
in which the extra honorarium was not
assigned. He worked on the said job for the
ten years' and after his retirement, now he
is claiming for the emolument of a post on
which he even did not worked for.

13. In this case the respondentpetitioner, he himself opted not to work as
a driver, and on his request a desk job was
assigned. After the change of his job from
2010 till the age of superannuation he did
not ask for the honorarium salary which
was fixed with the driver job. Though the
nature of the job was changed but the
nomenclature
was
not
changed,
the
respondent-petitioner
cannot
take
an
advantage of this clerical mistake. It is not
a case where the appellant corporation had
not assigned him the work for which he
was entitled to, on the contrary the
corporation had assigned a comfortable job
which he had asked for. Since he opted for
not doing the job, he cannot demand the
pay and that too, after a lapse of almost 12
years and after the superannuation.

14. Hon'ble Supreme Court in the
matter of State of Kerala Vs. E K
Bhaskaran Pillai reported in (2007) 6
SCC 524 has held that the principle of "no
work no pay" cannot be accepted as a
7 All. Supreintending Engineer Electricity Work Division Prayagraj & Anr. Vs. Israr Ali & Anr. 51
thumb rule and the matter will have to be
considered on a case to case basis.

15. A Constitution Bench considered
application of "no work, no pay" in the
matter of employees of Bank going on
strike in Syndicate Bank vs. K. Umesh
Nayak AIR (1995) SC 319 and observed
that whoever, voluntarily refrains from
doing work when it is offered to him is not
entitled for payment for the work not done.
In other words that is the dictum of "no
work, no pay".

16. Hon'ble Supreme Court in the
matter of Union Territory Chandigarh
Vs. Brijmohan Kaur reported in (2007)
11 SCC 488 has categorically held that the
principle of "no work no pay" is based
upon a fundamental concept that in case
employee did not carry out the work when
there is no refusal on behalf of the
employer to grant such work then the
principle of "no work no pay" would come
into force. This principle has been laid
down keeping in view public interest and
the government servant who did not
discharge his duty is not entitled to get pay
for the work which they have not done, on
the cost of public exchequer.

17. The principle of "no work no
pay" would attract when the employee
himself does not carry out the work which
he is supposed to do. In this case, it is not
a case where the employee was ready to
work as a driver and the appellantrespondent purposely did not grant him
work. On the contrary, in this case the
respondent-petitioner opted for not doing
the work and wanted a comfortable job,
which on a humanitarian ground was
assigned to him and after completing his
tenure, it is not open for the respondent to
ask for the honorarium and other pay
which was attached with the job he chose
not to do.

18. In this case, the petitioner
knowingly accepted lighter duties due to
his medical condition and did not demand
the
honorarium
during
his
service.
Granting the honorarium post-retirement,
despite his non-performance of driver
duties, would be inequitable and unjust,
contravening the principles established in
cantena of Supreme Court judgements.

19. The approach of the Court should
not be rigid or mechanical but should be
flexible and realistic and it should also not
tilt the equity in favour of a person who on
his own accord chose not to carry on the
hard work and chose for a comfortable
desk job, is not entitled for extra privileges
which was attached to the hard work.

20.

Further
the
principle
of
acquiescence
is
relevant
here,
as
respondent-petitioner's prolonged inaction
and failure to demand the honorarium
during his service period, despite being
aware that he was not performing the
duties
of
a
driver,
constitutes
acquiescence. This inaction can be seen as
a waiver of his right to claim the
honorarium later. By not raising the issue
during
his
service,
the
petitioner
effectively accepted the change in his
duties and the corresponding absence of
the honorarium.

21. Hon'ble Supreme Court in Union
of India v. Tarsem Singh (2008) 8 SCC
648 dealt with the issue of delayed claims
and their impact on the employer. In this
case, the belated claim by the petitioner,
made two years after his superannuation,
poses
financial
and
administrative
challenges.The court acknowledged that
52 INDIAN LAW REPORTS ALLAHABAD SERIES
delayed claims can put a heavy financial
strain on the employer, particularly in cases
where the employee knew the facts but
chose not to pursue the issue promptly.
Acknowledging such claims could have
unfair financial repercussions for the
corporation, which is unjust considering the
conscious and sustained inaction of the
respondent-petitioner.

22. The learned Single Judge had
granted one month additional salary as
honorarium from the financial year 20102011 until the financial year till he retired
along with interest of 6%. We find
conversely, if the present claim is accepted
in such eventuality, the Corporation may
not consider even a genuine medical
condition of employee and assign them
lighter work on the their request on
humanitarian ground, if it will be saddled
to pay the honorarium as directed by
learned Single Judge.

23. The appellant Corporation
cannot be saddled with such a cost just
because nomenclature of the driver was not
change in the record. If the impugned order
passed in Writ -A No. 19152 of 2021 (Israr
Ali vs. State of U.P. and others) is not set
aside, it will create a wrong precedent, as
people will opt for comfortable job and after
the retirement would seek honorarium, which
is only available to the driver, who were
supposed to be working for long hours and in
the longer run it will create a huge financial
impact for the corporation. Petitioner's
protracted inaction and the potential financial
and administrative costs on the Corporation is
supported by the ratio laid down by Hon'ble
Supreme
Court
in
aforementioned
judgements cited above, this Court finds that
the petitioner's claim for the honorarium is
not justified.

24. In view of the observation made
above, the judgement passed by the learned
Single Judge dated 15.02.2024 is not
sustainable and is accordingly set aside.

25. The instant Special Appeal is
accordingly allowed.
----------
(2024) 7 ILRA 52
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2024

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Special Appeal No. 557 of 2024

Ram Sewak ...Appellant
Versus
Hon'ble High Court of Judicature at
Allahabad ...Respondent

Counsel for the Appellant:
Puneet Bhadauria

Counsel for the Respondents:
Ashish Mishra, C.S.C.

A. Service Law - UP St. District Court
Service
Rules,
2013
-
Rule
15
-
Termination - Concealment of fact - Fact
regarding pendency of criminal case was
concealed
during
selection,
though
subsequently acquittal order was passed -
Effect - Plea of lack of knowledge was
taken, though notice u/s 41-A CrPC was
served
-
Permissibility
-
Held,
the
petitioner was having full knowledge
about the criminal case during document
verification and he has concealed the
material fact while swearing the affidavit
at the time of getting employment - The
candidate seeking an appointment in the
District Court judgeship should be of