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RAM NARAIN SINGH versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Ram Narain Singh v. State Of U.P. And Others - WRIT - A No. 52181 of 2004 [2007] RD-AH 10182 (25 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 10

Reserved on 23.4.2007  

           Delivered on  25.5.2007

Civil Misc. Writ Petition No. 52181 of 2004

Ram Narain Singh

Vs.

State of U.P. & others

Hon'ble Anjani Kumar, J.

Hon'ble Sudhir Agarwal, J.

Aggrieved by the order dated 4.9.2003 passed by U.P. Public Service Tribunal, the petitioner has come for in this writ petition under Article  226 of the Constitution of India assailing the said order only to the extent it denies back wages from 22.7.1996 to 4.9.2003.

The fact giving rise to this petition, in brief, are that the petitioner was working as Lekhpal. He was placed under suspension on 14.6.1995 by the Sub-divisional Magistrate. A charge-sheet was issued on 28.8.1995 which was replied by him on 18.9.1995. The Enquiry Officer submitted his report on 14.12.1995, which was communicated to the petitioner. He submitted reply and, thereafter, the Sub-divisional Magistrate issued a show-cause notice on 15.12.1995 as to why he may be not dismissed. The petitioner replied on 2.1.1996. However, he was dismissed vide order dated 22.7.1996, whereagainst he filed writ petition no. 32357 of 1996, which was dismissed on the ground of alternative remedy of appeal before the departmental authorities. The petitioner filed an appeal, which was rejected on 9.9.1997, whereagainst his review petition was also dismissed on 22.11.1997. Aggrieved, the petitioner filed claim petition no. 288 of 1999, which has been allowed by the Tribunal setting aside dismissal order dated 22.7.1996, appellate order dated 9.9.1997 and the order dated 22.11.1997 passed on review application, directing the respondents to reinstate him with immediate effect. However, the Tribunal has further said that the so far as back wages are concerned, the petitioner shall not be entitled for full salary from the date of dismissal till he is taken back in service except of a lump-sum compensation of Rs. 25,000/-. The respondents have also been granted liberty to initiate disciplinary proceeding afresh from the stage of submitting reply to the charge-sheet by the petitioner. The petitioner is aggrieved against the aforesaid judgment only to the extent it denies arrears of salary for the period he remained out of employment and instead granting only a lump sum amount of Rs. 25,000/-.

Learned counsel for the petitioner vehemently contended that he was kept out of employment on the basis of a wholly illegal order passed by respondent no. 4 and, therefore, he was not at fault. In the circumstances, the petitioner could not have been denied arrears of salary for the period he could not discharge duties though he was ready and willing to work. It is, thus, contended that denial of arrears of salary for the period he remained out of service is arbitrary and illegal. Learned counsel for the petitioner, in support of his contention that he is entitled for full salary, placed reliance on M/s. Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. & others, AIR 1979 SC 75, Daya Ram Dayal Vs. State of M.P. & another, 1997 (7) SCC 443 and Dipti Prakash Banerjee Vs. S.N. Bose National Centre for Basic Sciences, Calcutta & others, AIR 1999 SC 983. In the alternative, it is contended that in any case, the petitioner ought to have been allowed at least 50% of arrears of salary and placed reliance on UPSRTC Ltd. Vs. Sarada Prasad Misra & another, 2006 (4) SCC 733.

The respondents have filed counter affidavit stating that the principle of ''no work no pay' has been made applicable in all such matters, where the employee has not discharged any duty and, therefore, the Tribunal has rightly disallowed full arrears of salary to the petitioner and instead a lump-sum amount, which is quite reasonable, has been allowed. Therefore, order of the Tribunal warrants no interference.

We have heard Miss. Anuradha Sundaran appering for the petitioner and learned standing counsel for the respondents and have perused the record.

From record, it appears that serious charges of manipulation in revenue records, making false and incorrect entries in order to favour certain individuals etc. were leveled against the petitioner. The disciplinary authority also appointed an enquiry officer but it appears that enquiry officer after receiving reply from the petitioner did not conduct any oral enquiry and submitted his report on the basis of the documents available with him. Since, the procedure adopted by the enquiry officer was found in violation of the principle of natural justice and, therefore, the dismissal, appellate and review orders have rightly been set aside by the Tribunal.

However, mere setting aside of the order of dismissal would not automatically entitle a delinquent employee to claim full arrears of salary for the period he/she remained out of office. The circumstances and factors relevant for granting arrears of salary have been subject matter of consideration before the Apex Court time and again. It would be appropriate to have a bird eye view of some of the relevant decisions on this issue as also the relevant statutory provisions applicable in this regard in the case in hand.

The issue pertaining to arrears of salary in the case of a government employee who has not rendered any duty during certain period on account of any act, omission or order of employer has been the subject matter of frequent litigation for quite sometime and a retrospect of various authorities of the Apex Court and this Court shows a revolutionary change in the approach dealing with the said issue. A government servant unlike private employment once appointed is governed by the status and the rules and regulations governing his conditions of service. Though the government service start with a contract but once appointed it is a matter of status. Various rules and regulations have been framed under Article 309 (proviso) of the Constitution of India dealing with the terms and conditions of the government employees. In the matter of private employment an employee earn wages by rendering service to the employer and in case of no work he is not entitled for any wages unless specifically provided under contract or any law governing such contract. It is open to such an employer to enter into a contract carving out certain exceptions where the employee may be entitled for wages even for the period when no duty is discharged. In the cases where the employee is governed by various labour welfare legislations, payment of wages in certain contingencies, where the employee may not work but still may be entitled for wages are governed by the said labour welfare legislations and there the employer is liable to act according thereto. In the matter of government employees and others who are governed by the rules framed under Article 309 (proviso) of the Constitution, the position is different. Fundamental Rule 17 (hereinafter referred to as ''FR 17') provides as to when a government servant shall begin to draw pay and allowance etc. and when he would cease to do so, and reads as under:-

17.(1) Subject to any exception specifically made in these rules, and to the provisions of sub-rule (2) a Government servant shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties.

(2) The date from which a person recruited overseas shall commence to drawpay on first appointment shall be determined by the general or special orders of the authority by whom he is appointed."

The exceptions referred to in FR 17 are the eventualities like leave, joining time allowed to the government servant on transfer, suspension etc. In case of dismissal or removal, FR 52 provides that pay and allowances of government servant shall cease from the date of dismissal or removal. In the case of suspension FR 53 provides that though he would not be discharging any duty but subject to furnishing a certificate that he has not been engaged in any other business, profession or vocation, he would be entitled for subsistence allowance which may be 50% or 75% of the leave salary which he would have been drawing had he been on leave. The cases in which payment of salary is governed expressly by the rules, they do not create much difficulty but the litigation pertaining to service matters had brought a number of circumstances before the Court where the employees are denied benefit of salary or higher salary for one or the other reasons beyond their control or for which they are not responsible or nothing can be attributed to them. Such situations are not answered by any rule or executive order having force of law necessitating judicial pronouncements time and again for such entitlement.

Initially the courts were of the view that once it is found that the employee was wrongly denied such salary, he is entitled for entire arrears irrespective of the fact whether he actually discharged duties of the post or not. There was a dichotomy of judicial pronouncements in the matters dealing with labour cases and those dealing with government service. In labour matters, since the power of discretionary relief was conferred upon the adjudicatory forum under the labour laws, the issue was decided in the light of such provisions and the facts and circumstance of the concerned case. But in the matter of government servants, initially the courts allowed arrears of salary virtually as a matter of course once it is found that such denial was inconsistent to law, but, subsequently it was noticed that failure on the part of the authorities in observance of or the strict compliance of the statute was more frequent then desired and the consequence of allowing arrears as a matter of course was so drastic that huge public money used to be siphoned off to such employees who have rendered no public duty or have not actually shouldered any responsibility of higher post and therefore a necessity arose to have a balance in two situations so as not to waste public money for the follies of the authorities who were under the obligation to observe certain procedure, norms and failure whereof may not enrich certain employees being against the interest of the public exchequer. However, the interest of the employees who were not at fault simultaneously was also to be observed. This gave an occasion to consider the question of arrears of salary not as a matter of right but in each case depending upon multifarious reasons and factors which we will be discussing later on.

Here at this stage we propose to refer some of the judgments throwing light on the discussion made hearinabove.

In P.S. Mahal Vs. Union of India, AIR 1984 SC 1291 while deciding the dispute pertaining to seniority, the Apex Court directed the employees to be treated as deemed promoted from retrospective date and also directed for payment of salary of the higher post for the past period. However in Paluru Ramkrishnajah (Supra) despite allowing promotion with back date, the back wages were denied for the reason that earlier in other matters certain writ petitions were allowed by the Hon'ble Madhya Pradesh High Court on 4.4.1983 following the Apex Court judgment dated 2.2.1981 in Civil Appeal No. 441 of 1981 wherein back wages were denied despite retrospective promotion. A Special Leave Petition Civil No. 5987-92 of 1986 filed by the Government of India against the judgment of Hon'ble Madhya Pradesh High Court was dismissed on 28.7.1986. Therefore the Court took the view that same relief should be granted to the appellant in Paluru Ramkrishnajah and others Vs. Union of India & another, 1989 (2) SCC 541 also.

Subsequently relying on P.S. Mahal Vs. Union of India, AIR 1984 SC 1291, arrears of salary on account of backdated promotion was claimed but the aforesaid dictum was not followed in Virender Kumar Vs. Avinash Chadha and others, AIR 1991 SC 958 and for denying arrears of salary to the employees who were allowed promotion from an earlier date the Apex Court gave the following reasons:- "1. Deemed appointments have to be given to the concerned employees even from the dates when they were not in service and probably when they were still in their schools and colleges. 2. Neither equity nor justice is in favour of the respondents to award them emoluments of higher posts with retrospective effect and the decision in P.S. Mahal (Supra) was distinguishable. 3. The matter was agitated in 1972 but remained pending for more than one and half decade for no fault of the employer. 4. The higher posts were not vacant during the entire period and were manned by others. The employer had paid the incumbents who were working on the higher post emoluments of the said posts. 5. The employees have not actually worked in the higher post and on the principle of "no work, no pay", were not entitled for higher salary." In the aforesaid case, therefore, on the facts and circumstances of the case as referred above, the employees were denied arrears of salary despite of allowing promotion from an earlier date.

In Union of India Vs. K.V. Jankiraman, AIR 1991 SC 2010 the validity of a government order came up for consideration which provided that during the pendency of the disciplinary or criminal proceedings when an employee is to be considered for promotion, his matter shall be kept in sealed cover and he shall not be allowed actual promotion even if selected till the disciplinary/criminal proceeding is finalized and only after conclusion of such proceeding, the sealed cover shall be opened and if he is to be promoted, no arrears of salary shall be paid. The validity of this government order to the extent it denied arrears of salary to employee against whom as a result of departmental inquiry or criminal proceedings nothing ultimately is proved and who is exonerated and found entitled for promotion from due date yet arrears denied came up for consideration and it was contended that this gives a leverage to the employer to take advantage of his own wrong and despite the fact that the employee is not at fault and has done everything possible and permissible, yet he cannot get arrears of salary for an act for which the employer is solely responsible and therefore such provision is arbitrary. A Full Bench of the Central Administrative Tribunal declared the aforesaid part of the Government Order violative of Article 14 and 16 of the Constitution and the matter came up in appeal before a three Judge Bench of the Apex Court which held that FR 17 would not be applicable to a case where the employee though is willing to work is kept away by the authorities for no fault of his. The court held:-

"We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work, no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17 (1) will also be inapplicable to such cases."

The Apex Court, expressed its agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post alongwith other benefits from the date on which he would have been normally promoted but for the disciplinary/criminal proceedings. However, the Apex Court further held that in such matters a discretion must be left to the employer to decide as to whether the entire salary is to be paid or not for the reason that there may be cases where the proceedings, whether disciplinary or criminal, were delayed at the instance of the employee or clearance in the disciplinary proceeding or acquittal in the criminal proceeding is with benefit of doubt or on account of non availability of evidence due to the acts attributable to the employee etc. The concerned authority therefore, must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. The Apex Court further held that it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary but to ignore such circumstances when they exist, however, and lay down an inflexible rule of payment of arrears once an employee is exonerated would undermine discipline in the administration and jeopardize public interests. Thus the legal exposition as laid down in K.V. Jankiraman (Supra) is where an employee is not guilty of being away from work but is prevented from doing so by the authorities, the normal rules of "no work, no pay" is not applicable but in such cases considering various complexities of life and the history of the proceedings etc., the departmental authority must decide entitlement of the government servant about the arrears and the quantum thereof.

In Vasant Rao Roman Vs. Union of India & others, 1993 (Supple.) (2) SCC 324, arrears of salary was denied to the employee though it was held that denial of promotion on the higher post on account of wrong fixation of seniority was illegal. The Apex court held that the principle of "no work, no pay" would have no application to the said case since the employee was neither under suspension nor any disciplinary proceeding was pending against him and on the contrary he was made to suffer on account of administrative reason for which he was not responsible. There was shortage of literate Shunters at Gwalior during 1960 and the employee being literate was deputed for table work and therefore for administrative reason he could not complete requisite number of firing kilometers. The juniors were promoted as Shunters and Drivers and his claim was ignored on account of lack of requisite number of firing kilometers. Thus on the one hand the employee was utilized by the department to benefit itself with the qualification of the employee since literate Shunters to discharge table work were not readily available and on the other hand for the same qualification he was denied promotion on the ground that he has not completed requisite number of firing kilometers. Hence the Apex Court held that there was no justification in denying him arrears of emoluments from the date he was allowed promotion to the post of Shunter Grade ''B' and Driver Grade ''C'.

In Surjit Ghosh Vs. Chairman & Managing Director, United Commercial Bank and others, AIR 1995 SC 1053 as a result of disciplinary proceedings the employee was punished but the said order of punishment was passed by an authority to whom an appeal otherwise would lay under the rules and thereby the employee was denied right of appeal though conferred under the rules. The Apex Court held such exercise of power by the higher authority illegal but while considering the question as to what consequential orders should be passed, in the facts of the case, noticed that the proceedings against the employee were pending since 1982 and almost for 13 years the employee was out of employment. He also at once stage was inclined to forego all the arrears of salary provided he is reinstated in service on the post to which he was entitled with the benefit of continuity in service to which the Bank did not agree. The court thereafter noticed that his allegations that the charges were trumpeted against him cannot be said to be without any substance, the inquiry was also defective, he was an ex-army officer and therefore instead of remanding the matter a lump sum compensation would be just and reasonable.  The arrears of salary and future salary would have come to about 20 lacs and noticing the fact that the Bank being nationalized, the money belongs to the public and such a huge amount should not be allowed to be paid to someone who has not worked for a long time at all just for the reason that the Bank feels that it has lost confidence in the employee. The Court directed for payment of a lump sum compensation of Rs. 50,000/- in lieu of arrears of salary and reinstatement in service with continuity of service without any loss of seniority.

In Smt. Sudha Srivastava Vs. Comptroller and auditor General of India 1996 (1) SCC 63 following K.V. Jankiraman (Supra) the Apex Court allowed arrears of salary to the legal heirs of the deceased employee on the ground that he was denied promotion on account of criminal proceedings wherein he was honourably acquitted.

In State of Haryana and others Vs. O.P. Gupta and others, 1996 (7) SCC 533=AIR 1996 SC 2936 as a result of redetermination of seniority, pursuant to the direction of the Apex Court, promotions were allowed retrospectively but arrears denied. The Apex Court noted that the incumbents who approached the Court claiming arrears of salary though contended that they were ready but were not allowed to work on the higher post on account of wrong determination of seniority but their contention could not withstand judicial scrutiny for the reason that they were not the persons who agitated the issue of seniority earlier. Some other persons disputed the seniority list which was ultimately decided by the Apex Court directing for redetermination of seniority and therefore the contention of the employees that they were ready to work was contrary to record. It was also held where a seniority list has to be redrawn and the promotions have to be made and until that exercise is undertaken, it was not open to the employees concerned to claim that they were ready to work on the higher post and thus the question of entitlement of arrears on promotional post would not arise. The law laid down in K.V. Jankiraman (Supra) was distinguished on the ground that it was a case of sealed cover procedure but would have no application to the case of promotion as a result of redetermination of seniority.

In J.N. Srivastava Vs. Union of India and another, 1998 (9) SCC 559 the employee served a notice of voluntary retirement but before communication of its acceptance withdrew the same. However the employer forced voluntary retirement upon him whereagainst he approached the Tribunal which held that voluntary retirement having been given effect to and the employee also having handed over charge, no relief can be granted to him. The Apex Court reversed the judgment of the Tribunal and held that before communication of acceptance of the letter of voluntary retirement it was open to the employee to withdraw the same. Further observing that the employee was denied work though he was ready, it was held that he is also entitled for the benefit of the salary for the period he was denied work by the employer and the principle of "no work, no pay" would not apply.

A Constitution Bench considered application of "no work, no pay" in the matter of employees of the 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". However it was also held where the issue pertaining to strike is dealt with by the statute or the contract between the employer and employee recognizing the right of employees to go on strike, in such case in order to get entitlement or wages for the period of strike it has to be both legal and justified.

In State Bank of India Vs. Anjan Sanyal, AIR 2001 SC 1748 an employee was transferred but he did not comply the same and made representations for its cancellation. He was relieved in absentia and reminded by the Bank to join at the place of transfer but he did not obey, whereafter another order was passed transferring him to another place but that too was not obeyed and instead the employee filed a writ petition wherein an interim order was passed directing the employee to obey the later order of transfer which was not complied by him again and instead he preferred an intra Court appeal wherein he was allowed some more time to join at the later place of transfer. The employee filed a special leave petition which was dismissed. However the employee did not join at the place of transfer. The writ petition was ultimately allowed by the Hon'ble Single Judge setting aside the order of transfer with all consequential benefits and salary for the period he was not in the office. The Apex Court in the appeal of the Bank observed that in such a case where an employee who has not discharged any duty by disobeying the order of transfer, if is allowed salary for the period he was absent, it would amount to granting a premium to an errant officer. Accordingly, setting aside the judgment of the High Court, the Apex Court left it open to the Bank to deal with the period of absence in accordance with rules of the Bank.

In Food Corporation of India Vs. S.N. Nagarkar, AIR 2002 SC 808, notional promotion without arrears was allowed by the employer relying on the judgment of the Apex Court in O.P. Gupta (Supra) and Paluru Ramkrishnajah (Supra). The Apex Court found that the notional promotion was allowed pursuant to the order dated 6.5.1994 passed by the High Court in Writ Petition No. 4983 of 1993 wherein a direction was also issued for payment of arrears of pay. The said judgment having attained finality it was not open to deny arrears of salary while implementing the said judgment and to defend such denial in execution proceedings. Moreover, it was held that entitlement of employee for arrears of pay and allowances is within the domain of the court and if it is satisfied that the employee was not considered for promotion to the promotional post for no fault of him but on account of the fault of the authorities concerned, it can always allow arrears of pay and allowances since it is settled law that in exercise of writ jurisdiction the court can mould relief having reference to the facts of the case and interest of justice.

In A.K. Soumini Vs. State Bank of Travancore and another, 2003 (7) SCC 238=AIR 2003 SC 3137 the Court upheld denial of arrears on the ground that as a matter of fact the employee was disentitled for promotion under the promotion policy but taking into account the pendency of the appeal before the Court for a considerable time on account whereof the employee could not appear in subsequent tests, the benefit of promotion was allowed which was more in the nature of gesture of gratis and not by way of any right to which she was entitled. Therefore, the notional promotion allowed by the Bank with revision of pay scale was found to be more than what ought to have been allowed to her, be it either in law or equity, and her further claim for payment of arrears was found to be highly far-fetched, without any basis and unjust. This is apparent from para 9 of the judgment which is reproduced as under:-

"So far as the case on hand is concerned, the appellant was denied promotion in terms of the promotion policy under which it was necessary for a candidate to secure at least a minimum eligibility mark of 6½ at the interview and the learned single Judge, allowed the claim only on the ground that such prescription of a minimum mark was not valid. Though the Division Bench also affirmed the same, this Court overruled the said decision, and upheld such prescription. But taking into account the pendency of the appeal in this Court for considerable time, and on account of which the appellant also did not appear in the subsequent tests, benefit to promote her was not denied. The fact that her non promotion was legal and there has been no unlawful interference with her right to promotion or to serve in the promoted category was obvious and could not be minced over or completely ignored in the light of the judgment of this Court, allowing the appeal by the Bank. While that be the position, the grant of relief to her, keeping in view the delay merely due to pendency of proceedings before Court, was more in the nature of a gesture of gratis and not by way of any right, to which she was found to be entitled to. Consequently, the notional promotion given to her by the Bank with suitable revision of her pay scales itself is more than sufficient to meet the requirements, be it either in law or in equity. The further claim for payment of arrears as well, is far-fetched and can have no basis, in law. The Division Bench, in our view properly approached the question in the light of the relevant guiding principles and the same could not be said to be either arbitrary, unreasonable or unsound in law to warrant of our interference."

In Punjab National Bank Vs. Virender Kumar Goel, AIR 2004 SC 3988 the employees were denied work despite withdrawal of their options seeking voluntary retirement. It was held to be illegal on the ground that before acceptance it is always open to the employee to withdraw such option and therefore for the period the employees could not work, arrear was allowed. The Apex Court held that principle of "no work, no pay" would not apply in such a case since the employees were out of their job for no fault of their. It also held that a party who is in breach of contract can hardly seek for any equitable relief. Since the Bank did not permit the employees to work and breached contract, it did not lie in its mouth to deny arrears of salary to the employees.

In General Manager, Haryana Roadways Vs. Rudhan Singh, AIR 2005 SC 3966 the employee was engaged for a short period i.e. 16.3.1988 to 28.2.1989 with some breaks and thereafter was not given any appointment. He raised an industrial dispute regarding validity of his termination wherein it was held that having completed 240 days of service in a calendar year, his termination was in violation of Section 25-F of the Industrial Disputes Act, 1947. Declaring his termination illegal, he was held to be entitled for reinstatement, continuity of service and 50% of back wages. Upholding the award of the Industrial Tribunal cum Labour Court holding termination of the employee as illegal, the Court noticed that in the matter of award of back wages there is no rule of thumb that in every case whenever termination is found to be illegal, full or some back wages have to be allowed to the workman. Lot of factors have to be taken into consideration which include how quick the employee was in taking legal action regarding his grievance against the action of the employer, delay if any in litigation and whether the employee or any other person is responsible therefor. Moreover, the factors like manner and method of selection and appointment, namely proper advertisement inviting applications from the employment exchange; nature of appointment whether ad-hoc, short term, daily wage, temporary or permanent in character; any special qualification required for the job etc. are of relevance to weigh the balance of the decision regarding wages. Moreover, the length of service rendered by the employee, the age and qualification showing that he may not be in a position to get any other employment, a regular service of permanent character if terminated illegally would attract different consideration then a short term or interrupted daily wage employment though has completed 240 days in a calendar year is also relevant. The Court also held that a person appointed on daily wage basis get wages for the days only he has performed work and when work not done, remuneration is not to be paid and this is also a relevant factor. Whether the employee was gainfully employed during the period of unemployment was also held to be a relevant factor.

In Kendriya Vidyalaya Sangthan Vs. S.C. Sharma, 2005 (104) FLR 863 (SC)=2005(2) SCC 363 it was held that while setting aside an order of dismissal or termination full back wages is not the natural consequence and when the question of back wages is to be determined, the employee has to show that he was not gainfully employed and initial burden lie on him. However, since the employer was given a liberty to proceed afresh against the employee the Apex Court did not express any final opinion on the entitlement of the service benefits of the empl0yee concerned and held that final decision could be taken by the competent authority in departmental proceeding.

Coming to the judgment sited by learned counsel for the petitioner, in Dipti Prakash Banerjee (Supra), para 46 itself  shows that since no departmental inquiry at all was held and therefore, the Court allowed back wages to the employee concern as would be evident from the following:-

"But in the case like the present where no departmental inquiry whatsoever was held.............."

Similarly in UPSRTC Ltd. Vs. Sarada Prasad Misra (Supra) we find that the Court did not allow back wages from the date of termination till his reinstatement. The workman was terminated in 1975 and the Labour Court gave award on 17.9.1984 thereafter he was reinstated on 9.2.1988. The Apex Court allowed only 50% wages that too from the date of award till reinstatement and no wages were allowed from the date of termination till award.

In Dayaram Dayal (Supra) also the employee was terminated after receipt of inquiry report against him but treating him as temporary employee the Apex Court found the order of termination simplicitor illegal since the appellant stood confirmed on the expiry of 4 years of period of probation. Therefore, salary was allowed from the date of termination till reinstatement.

The question of arrears of salary has been dealt with in detail recently in U.P. State Brassware Corporation Ltd. and another Vs. Udai Narain Pandey, AIR 2006 SC 586 and the Apex Court has observed that earlier direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the Court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago when the employee was retrenched/terminated. It was held that no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed, but held that it depends upon the facts and circumstances of each case. It cannot be automatic and should not be granted mechanically only because on technical ground or otherwise the order of termination has been found defective or illegal. It was also observed that payment of back wages involves a discretionary element in it and has to be dealt in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety. Noticing the change in the approach of the Courts in dealing with such matters, in para 44, 45 and 46 of the judgment it was held:-

"44. Industrial Courts while adjudicating on disputes between the management and the workmen, therefore, must take such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law.

45. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an industrial court shall lose much of its significance.

46. The changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the government in the wake of prevailing market economy, globalization, privatization and outsourcing is evident."

We may also add one more aspect. Many a times when the employee approaches the Court challenging an order of retirement, dismissal or removal etc. in writ jurisdiction and prays for an interim relief, while entertaining the writ petition the Court normally do not grant any interim relief for the reason that it is treated like granting a final relief to the employee at the stage of admission and also against the well established principle applicable for grant of interim injunction that not only a prima facie case must be shown but the petitioner has to show balance of convenience and irreparable loss lying in his favour. In the aforesaid kind of cases, since the employee can always be compensated while granting final relief by allowing wages for the period he is out of employment, interim relief is normally denied. Therefore, it is a relevant factor as to when the employee has approached the Court. Pendency of the writ petition and non grant of interim order in view of the aforesaid legal principle should not normally result in denial of the ultimate relief of salary to the employee when the impugned order is found to be illegal unless there are certain other factors, a few whereof have already been enumerated hereabove, justifying denial of full salary or arrears otherwise it would amount to denial of an effective relief to a litigant for which he is not at fault and also confer premium upon the other side for passing an illegal order and thereby depriving the employee from discharging any duty. We cannot forget that an employee has no right to work but only a right to get salary, and, it is always open to the employer to take work from the employee or not but he has to pay salary so long as the employment is not terminated in accordance with law or in accordance with the terms of his contract.  

In Public Service Tribunal Bar Association Vs. State of U.P. and another, AIR 2003 SC 1115 the Court while justifying non grant of interim orders in the case of suspension, dismissal, removal etc. has observed that in such cases the employee can be suitably compensated when the said order is not found in order but in case the interim order is granted, it would amount to allowing wrong usurpation of the office by the employee during operation of the interim order and this act may be irreversible. The Court observed as under:-

"Dismissal, removal, termination and compulsory retirement puts an end to the relationship of employer and employee. In case of suspension, reduction in rank or reversion the relationship of employer and employee continues. Interference at the interim stage with an order of dismissal, removal, termination and compulsory retirement would be giving the final relief to an employee at an interim stage which he would have giving the final relief to an employee at an interim stage which he would have got in case the order of dismissal, removal, termination and compulsory retirement is found not to be justified. If the order of dismissal, removal, termination and compulsory retirement is set aside then an employee can be compensated by moulding the relief appropriately in terms of arrears of salary, promotions which may have become due or otherwise compensating him in some other way. But in case the order of dismissal, removal, termination and compulsory retirement is found to be justified then holding of the office during the operation of the interim order would amount to usurpation of an office which employee was not entitled to hold. The action becomes irreversible as the salary paid to the employee cannot be taken away as he has worked during that period and the orders passed by him during the period he holds office (because of the interim order) cannot also be put at naught." (Para 40)

"Orders of suspension, dismissal, removal, reduction in rank, termination, compulsory retirement or reversion of a public servant normally should not be interfered with at an interim stage as the employee can be suitably compensated in case the order of suspension, dismissal, removal, etc. is found not to be in order. The cases in which the operation of orders of dismissal, removal, termination etc. is stayed by way of interim order is later on upheld at the final stage then it results in wrong usurpation of the office by the employee during the operation of the interim order. This act becomes irreversible and the employer cannot be suitably compensated by moulding the relief at the final stage." (Para-42)

In the matter of retirement wrongfully forced upon an employee, consistently the view has been to allow arrears of salary for the period the employee could not render any duty due to wrongful retirement and this has been followed recently in Harwindra Kumar Vs. Chief Engineer, Karmik and others, 2006 (1) UPLBEC 20 (SC) where the Court observed as under:-

"It is directed that in case the employees have been allowed to continue up to the age of 60 years by virtue of some interim order, no recovery shall be made from them but in case, however, they have not been allowed to continue after completing the age of 58 years by virtue of erroneous decision taken by the Nigam for no fault of theirs, they would be entitled to payment of salary for the remaining period up to the age of 60 years which must be paid to them within a period of three months from the date of receipt of copy of this order by the Nigam."

It is important to notice at this stage that conduct of the employee in order to show his readiness by taking such steps as permissible in law to compel the employer to permit him to work is of utmost importance and this includes whether the employee took steps well in time and where an employee has failed to approach the Court well in time, such relief has been denied on the ground of delay, laches and acquiescence. In Chairman, U.P. Jal Nigam and another Vs. Jaswant Singh and another, 2007 (1) ESC 40 (SC) following the judgment of the Apex Court in Harwindra Kumar (Supra) a number of employees of U.P. Jal Nigam who were retired at the age of 58 years approached the High Court claiming that they are also entitled to continue till 60 years of age and the High Court allowed the writ petition with the benefit of arrears of salary etc. The judgment of the Hon'ble Single Judge was confirmed in special appeal whereagainst the U.P. Jal Nigam approached the Apex Court and reversing the judgments of the High Court it was held that the employees accepted the retirement and did not challenge the same in time and thus guilty of acquiescence. If they would have been vigilant enough, could have filed writ petition as others did immediately when they were sought to be retired at the age of 58 years but they chose to abstain and did not rise to the occasion. The Court, therefore, should be very slow in granting relief to such litigants. It was also noticed that if the said employees would have challenged the retirement being violative of the provisions of the Act well in time the employer could have taken appropriate steps to raise funds to meet the liability in case he looses the matter in the Court or could have taken such other remedial measures as necessary but since the employees did not come to the Court in time, the Court should not come to rescue such persons who are guilty of waiver and acquiescence. Therefore delay and laches is also a relevant factor in granting relief in such matters including arrears of salary.  

Applying the law, as expressed in the above discussed authorities, in the case in hand, we find that the petitioner was dismissed from service on 22.7.1996 pursuant to an enquiry report submitted by enquiry officer without conducting any oral enquiry at all. The petitioner immediately thereafter approached this Court under Article 226 of the Constitution of India, but the writ petition was dismissed on the ground of alternative remedy of appeal under the rules. He filed an appeal before the Commissioner, Mirzapur but without considering this aspect of the matter that no oral inquiry was held before passing impugned order, the appellate authority rejected the appeal on 9.9.1997. The petitioner still preferred to file a review petition before the Commissioner and the same was also rejected on 22.11.1997, whereafter he availed remedy of filing claim petition under Section 4 of the U.P. Public Services Tribunal Act, which has been allowed and the dismissal order has been set aside. In the circumstances, it is evident that the petitioner took all possible steps for restoring his position back at the earliest possible in various forum and  it cannot be said that he was not ready to discharge his duties. Not only he has shown his readiness, but various efforts he made for enforcement thereof is also evident from the above discussion. He was kept out of employment and could not render any duty for the reason of an illegal order passed by the authorities based on an enquiry report, which was submitted by the enquiry officer without holding any oral enquiry. It is not the case of the respondents that the petitioner was gainfully employed anywhere from the date of his dismissal till his claim petition was decided by the Tribunal. In these circumstances, denying entire arrears of salary to the petitioner would amount to causing irreparable loss to him for no fault on his part particularly when he took all possible steps against the illegal order of dismissal. Simultaneously, we also find that though his review petition was rejected on 22.11.1997 but the claim petition was filed by him in 1999, i.e, after more than one years. Considering all the facts and circumstances in the case and the exposition of law laid down in the above discussed authorities, we are of the view that interest of both the parties would be equally balanced if the petitioner is allowed 50% of arrears of salary from the date of his dismissal till reinstatement.

In view thereof, we allow the writ petition, quash the order of Tribunal dated 4.9.2003 only to the extent it denies arrears of salary to the petitioner from the date of dismissal till his reinstatement and direct that the petitioner shall be entitled for 50% of arrears of salary from the date of dismissal till his reinstatement.

No order as to costs.

Dt. 25.05.2007

PS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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