http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

CASE NO.: Appeal (civil)  7659 of 2002

PETITIONER: Devendra Kumar Singh                                             

RESPONDENT: Administrator, Bihar Coop. Mkt. UN. Ltd. & Anr.          

DATE OF JUDGMENT: 25/04/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       The 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:

"This 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.   In my 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  Kant Pathak & Ors. Vs. the State of Bihar,  reported in 1997 (1) PLJR 664.

       However, 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:

"The 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

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.   However, 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.

       We do 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 liability.   

       The 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 obtain salary.   

       It, 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 BISCOMAUN.

       The State, however, denies and disputes its right to pay salary to the  employees of BISCOMAUN.

       Mr. 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].   

       In 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/-.