Kumar Singh Vs. Administrator, Bihar Coop.
Mkt. Un. Ltd. & Anr  Insc 237 (25 April 2006)
Sinha & P.P. Naolekar S.B. Sinha, J :
Appellant herein is an employee of the Bihar State Cooperative Marketing Union
Limited (for short "BISCOMAUN"). He had not been paid his salary from
the month of January, 1996. He filed a writ petition before the Patna High
Court. No dispute was raised as regard his legal right to receive salary or the
quantum thereof. On the aforementioned premise, a learned Single Judge of the
High Court by an order dated 27.9.2000 while directing payment of salary to the
Appellant herein observed:
Court is constrained to note here that admittedly the respondents are not in a
position to pay even salary to the employees since October, 1995, such
institution/ organization must not exist.
opinion, all such institutions/ organizations must be immediately closed down
by resorting to winding up proceeding in the light of the Full Bench decision
of this Court in the case of Mani reported in 1997 (1) PLJR 664.
in the counter affidavit, it is not even indicated that any such step has been
taken, so far. Accordingly, this writ petition is allowed with cost of Rs.
2000/- to be paid by the Head of the Organisation, namely, the Administrator
from his pocket to the petitioner with all his dues within two weeks from the
date of receipt of communication of this order, failing which he shall not draw
his salary and other allowances till the order is complied." BISCOMAUN
preferred a Letters Patent Appeal thereagainst. A Division Bench of the High
Court by an order dated 19.7.2001 set aside the said judgment and order of the
learned Single Judge holding:
BISCOMAUN is running in loss. It has no fund even to meet day-to-day expenses
and the salary is not being paid to its employees. Even the Administrator has
been appointed on part time basis. The fact that whether the State Government
will take necessary steps for winding up of the said Society or not, it is for
them to decide and on that ground direction cannot be made for payment of
salary to respondent no. 1 because it is an admitted position that no fund is
available to the BISCOMAUN. Therefore, no futile writ can be issued and thus
the direction issued by the learned Single Judge for payment of salary and the
cost awarded to the Administrator is set aside.
it is made clear that as and when the fund will be available, the salary of the
respondent along with other employees shall be paid." The Appellant is,
thus, before us.
not appreciate the approach of the Division Bench. A citizen knocks the doors
of the High Court for obtaining relief to which he is entitled to. In this
case, the legal right of the Appellant to obtain salary has not been disputed.
An order which may not be executed easily is distinct and different from
declaration of a legal right. While issuing a writ, the court is not concerned
as to whether there is an inter se dispute between BISCOMAUN and the State of Bihar as regards their respective
learned Single Judge, in our opinion, was entirely correct in observing that if
a State within the meaning of Article 12 of the Constitution of India is not in
a position to comply with its constitutional obligations, it must try to find
out a way itself to take appropriate steps in that behalf but the same would
not mean that the Appellant could have been deprived of his legal right to
however, appears that by an order dated 29.4.2002, a Division Bench of this Court
directed the State of Bihar to pay salary for one year each to the employees of
State, however, denies and disputes its right to pay salary to the employees of
Sunil Kumar urges that this Court may issue appropriate directions to the State
of Bihar to pay salary to all the employees
of BISCOMAUN. We cannot accede to such a prayer for more than one reason. Firstly,
because it is not a case where this Court has the requisite materials to issue
such general direction. Secondly, no case has been made out by the employees of
BISCOMAUN to attract the law laid down by this Court in Kapila Hingorani v.
State of Bihar [(2003) 6 SCC 1].
this situation, we do not intend to enlarge the scope of the writ petition. If
any cause of action arises therefor, it would be open to the concerned
employees to ventilate their grievances before an appropriate forum. We,
however, for the reasons aforementioned, are of the opinion that the judgment
of the Division Bench of the High Court is wholly unsustainable. It is set
aside accordingly. The appeal is allowed. The Respondent No. 2 shall also bear
the cost of this appeal. Counsel's fee assessed at Rs. 5000/-.