Non-payment of salary for work done by employee amounts to exploitation: Allahabad High Court

Justice Irshad Ali heard the matter on April 23.

No salary paid

The case pertains to an institution which had submitted a proposal for the creation and sanction of necessary posts, including clerical staff. However, no decision was taken by the competent authority. So, in order to maintain the proper functioning of the institution, the management initiated a recruitment process by issuing an advertisement in the newspapers. Thereafter, the selection committee selected the petitioner for the post of clerk.

However, despite continuously discharging duties, no salary was paid to the petitioner from the state exchequer.

The counsel for the petitioner submitted that the petitioner’s appointment was made in anticipation of the sanction of posts, though no formal order sanctioning such posts has been issued to date. It was argued that the committee of management proceeded on the expectation that the posts would eventually be sanctioned and, on that basis, appointed the petitioner to a Class III position.

It was further contended before teh Allahabad High Court that the respondents’ action in withholding the petitioner’s salary is arbitrary, illegal, and unjustifiable in law.

The counsel for the respondents pointed out that there was no sanctioned post against which the petitioner had claimed appointment, and no approval was granted to the appointment of the petitioner.

‘Not illegal appointment’

• The Allahabad High Court noted that the petitioner was appointed after issuance of a public advertisement and a due selection process by a duly constituted selection committee.
• It added that the procedure adopted by the committee of management satisfies the requirement of transparency and fairness and cannot be said to be a back-door entry.
• The appointment, at best, falls within the category of an “irregular” appointment and not an “illegal” one”, the court observed.
• It remarked that the petitioner continuously discharged duties in the position of clerk since, and the respondents did not dispute the factum of work being taken from him.
• The only ground for denial of salary is the absence of a sanctioned post and formal approval. Such a stand, in the facts of the present case, cannot be accepted as the institution itself had moved the proposal for sanction of posts as far back as 1998, followed by repeated reminders, but the competent authority failed to take any decision, the Allahabad High Court held.
• In a strongly worded observation, the court said that the inaction from respondents in not deciding on the proposal for sanction of posts for decades, despite the continuous requirement of clerical staff, reflected arbitrariness.
• The state, being a model employer, cannot take advantage of its own inaction and deny “legitimate dues” to an employee who has been continuously serving the institution, it noted.

Court’s directions

Relying on a catena of judgments, the Allahabad High Court allowed the plea and passed the following directions:

• The respondent is directed to ensure payment of the regular salary to the petitioner on the post of clerk from the state exchequer.
• Release arrears of salary to the petitioner within three months from the date of production of a certified copy of this order.
• Take a reasoned decision with regard to the sanction of the post of clerk, if not already sanctioned, within three months.
• Not to interfere in the functioning of the petitioner as clerk, provided he continues to discharge duties.

The Allahabad High Court clarified that the respondents shall not deny the benefits on the ground of non-sanction of post, when the petitioner has continuously worked for long years and the requirement of the post is evident.