DR. SHANKER HARI Vs. UNIVERSITY OF UDAIPUR

JUDGEMENT

(1.) This is a writ petition under Art. 226 of the Constitution by Dr. Shanker Hari, an Associate Professor of Mathematics, University of Udaipur for a writ of mandamus or other appropriate writ directing the University of Udaipur to forbear from giving effect to the orders of the Vice-Chancellor of the University dated 5-8-1976, and 25-10-75 to treat the petitioner on extraordinary leave (without pay). On 19-7-1975, the petitioner was detained under rule 36 with rule 43 of the Defence of India Rules, 1971 and a challan was put up before the Chief Judicial Magistrate, Aligarh, in consequence whereof, the Vice-Chancellor of the University of Udaipur passed the impugned orders. During the pendency of the proceedings, the petitioner was enlarged on bail by the Sessions Judge, Aligarh. He, therefore, reported for duty. It is common ground that the Petitioner has now been re-instated. The main relief for the issue of a writ of mandamus or other direction directing the University authorities to permit the petitioner to resume his duties has, therefore, become infructuous. The only relief that survives is the money part of the claim i.e. for recovery of the arrears of pay and allowances. For the enforcement of that claim, the petitioner has the remedy of suit Art. 226(1), as amended by section 58 of the Constitution (Forty Second Amendment) Act, 1976, interdicts that no petition for the redress of any injury referred to in sub-clause(b) or sub-clause (c) of the clause (i) shall be entertained, if any other remedy for such redress is provided for by under any other law for the time being in force. The matter is not covered by clause (i). There is no fundamental right of employment. The question whether the petitioner is or is not entitled to salary during the period of his detention will depend on the conditions of his service. That is a question to be tried in the suit. In service matters, the normal remedy is always the suit (See Union of India Vs. T. R. Verma, AIR 1957 Supreme Court 882) .

(2.) There are certain observations in Hari Raj Singh Vs. Sanchalik Panchyat Raj (AIR 1968 Allahabad 246) which no doubt, tend to support the contention of the petitioner, but the observations must be read in the context in which they were made. When an employee has done work, the amount of wages earned by him become a debt due to him from the employer and is property. The phrase "wages earned by him" includes wages which the employee would have earned if he had not been wrongfully prevented from earning them. Here, there was no question of the petitioner being wrongfully prevented from earning his wages. He was under detention under the Defence of India Rules, 1971. He had done no work and the question of enforcing payment his salary and allowances by means of a writ does not arise. The question as to whether he has entitled to such wages or not is a matter to be tried by the civil court.

(3.) The Writ petition, therefore, fails and is dismissed as having abated under Art. 226(3) read with section 58 (2) of the Constitution (Forty Second Amendment) Act, 1976. Petition dismissed.