Allahabad High Court
Mahendra Pal Verma vs State Public Services ... on 3 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 241
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 3 Case :- SERVICE BENCH No. - 23812 of 2018 Petitioner :- Mahendra Pal Verma Respondent :- State Public Services Tribunal,Lucknow Thru.Chairman & Ors. Counsel for Petitioner :- Farooqahmad Counsel for Respondent :- C.S.C. Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard Sri Farooqahmad, learned counsel for the petitioner and learned State Counsel.
By means of the present writ petition, the petitioner has challenged the impugned judgment and order dated 26.04.2018 passed by the State Public Services Tribunal, Indira Bhawan, Lucknow (in short "Tribunal") in Claim Petition No.1523 of 2015 (Mahendra Pal Vs. State of U.P. and Others).
Facts, in brief, of the present case are to effect that the petitioner was initially appointed on the post of Constable in Armed Police on 19.11.1976. On 03.09.1990 he was served with a charge sheet dated 03.09.1990 on the ground that he was absent from duty from 23.02.1990 to 26.05.1990. Receiving the same, the charges leveled, has been denied by the petitioner. Thereafter, an enquiry was conducted by the enquiry officer i.e. the Superintendent of Police, District-Kheri and on the basis of enquiry report dated 05.12.1990, issued a show cause notice dated 13.12.1990 to the petitioner. Thereafter, by an order dated 31.01.1991, the Superintendent of Police, District-Kheri dismissed the petitioner from service.
Aggrieved by the order dated 31.01.1991, the petitioner filed a Writ Petition No.3301(S/S) of 1991 (Mahendra Pal Vs. State of U.P. and Others), which was allowed by an order dated 12.12.2013, the same is reads as under:-
"Heard learned Counsel for the parties.
By means of instant writ petition, the petitioner has questioned the validity of the order dated 31.1.1991 dismissing his services. Feeling aggrieved, the instant writ petition has been filed.
In nutshell, the case of the petitioner is that the petitioner while posted at the Police Lines, Kheri was issued a charge sheet on the ground of unauthorized absence from duty for 93 days and 112 days on two occasions.Though the petitioner tendered his reply denying the charges levelled against him, the Inquiry Officer came to the conclusion that the charges levelled against him had been proved and as such, he recommended for dismissal of service. Thereafter, a show cause notices were issued to the petitioner, to which the petitioner submitted his replies. According to him, he submitted his replies dated 5.2.1991, but he was dismissed from service vide impugned order dated 31.1.1991.
Learned Counsel for the petitioner submits that without considering the replies to the show cause notice, the impugned dismissal order has been passed. Further, the petitioner was neither informed by the Inquiry Officer of the dates fixed for the enquiry nor despite his specific requests, the witnesses examined in his absence were called for examination. No reasons have been assigned by the Inquiry Officer for not calling all the witnesses examined in the absence of the petitioner. The findings of the Inquiry Officer with regard to the plea of the petitioner that he was ill during the period in which he was alleged to be absent from duty are purely conjectural without any material on record. There was no material available with the Inquiry Officer to indicate that the petitioner was in fact not ill for the period for which he claimed to be ill and as such, also the findings recorded by the Inquiry Officer are per verse.
On other hand, learned Standing Counsel submits that as the petitioner absented from duties on two occasions, there is no illegality or infirmity in the impugned dismissal order.
A perusal of the record, it shows that the writ petition has been filed in the year 1991. Though the notice on behalf of opposite parties has been accepted by the learned Chief Standing Counsel, yet no counter-affidavit has been filed. Since no counter affidavit has been filed, this Court is treating the averments made in the writ petition as uncontroverted in view of the decisions of Hon'ble the Supreme Court in Choksi Tube Company Limited Vs. Union of India 1997 (11) SCC 179 and Naseem Bano Vs. State of U.P. and others AIR 1993 SC 2592, wherein the Apex Court has laid down the law that where a plea taken is not controverted in reply, it amounts to admission of the plea.
Here, in this case, the petitioner was dismissed from service. Since beginning, the case of the petitioner is that he was not afforded opportunity of hearing. Further, the petitioner has not been informed about the date, time and place. Further, the witnesses so examined by the Inquiry Officer have not been called for examination.
It is settled principle of law that if no date, time and place is fixed and communicated to the delinquent for conducting the inquiry after reply to the chargesheet is submitted, the entire disciplinary proceedings would be vitiated. (See Awadhesh Kumar Rastogi Vs. State of U.P and others : 2004 (22) LCD 1) and Radhey Kant Khare Vs. U.P. Cooperative Sugar Factories Federation Limited : (2003 LCD page 610).
Apart from above, the Hon'ble Apex Court in the case of Ministry of Finance and another Vs. S.B.Ramesh (AIR 1998 SC 853) and S.C. Gioratra Vs. United Commercial Bank and others [1995 Supp.(3) SCC 212] has held that if the enquiry officer did not prove the documentary evidences relied upon in the enquiry and without proving the charges levelled against the petitioner, submitted his enquiry report, it vitiates the entire proceedings due to non-observance of principle of natural justice.
In view of the above, the impugned dismissal order dated 31.1.91 not only is in utter disregard of the principles of natural justice, but the inquiry officer has not followed the settled principles of law. It was incumbent upon the inquiry officer to have proved the charges levelled against the petitioner which was not done in the instant case. Moreover, the disciplinary proceedings were concluded behind the back of the petitioner and the documents furnished by the petitioner were not considered by the disciplinary authority.
In view of the above, the writ petition is allowed. The dismissal order dated 31.1.91 passed by Superintendent of Police, Lakhimpur Kheri is hereby quashed. It is made clear that the backwages and consequential benefits will be subject to second enquiry, which shall be concluded, in accordance with law, within a maximum period of three months, as the matter is lingering since 1991."
After passing of the judgment and order dated 12.12.2013 the opposite party no.3, reinstated the petitioner in service vide order dated 24.01.2014 on the pay scale prevailing at the time of dismissal from service on 31.01.1991 and by the same directed the Additional Superintendent of Police, District-Kheri to carry out the enquiry and in same order observed that the payment of back wages and other consequential service benefits would depend on the out come of enquiry. Relevant portion of order dated 24.01.2014 reads as under:
"ek0 mPp U;k;ky; y[kuÅ ihB] y[kuÅ ds fu.kZ; fnukafdr 12-12-2013 ds vkyksd esa vfHk;kstu vf/kdkjh] y[kheiqj&[khjh ls fof/kd vfHker izkIr fd;k x;kA T;s"B vfHk;kstu vf/kdkjh] y[kheiqj&[khjh }kjk vius fof/kd vfHker lEca/kh i= la[;k%vfHk0 @1&5@2014@37 fnukad 20-01-2014 esa ;g vafdr fd;k x;k gS fd ekuuh; U;k;ky; ds vkns'k ds dze esa vkj{kh egsUnz iky oekZ c[kkZLrxh ds fnukad ds osrueku esa iqu% inLFk gksxkA iqu% inLFk gksus ds i'pkr ;fn vkj{kh ds fo:) f}rh; foHkkxh; tkap izkjEHk djus dk fu.kZ; fy;k tkrk gS rks tkap dk fuLRkkj.k 03 ekg esa djuk gksxk rFkk vkj{kh dk fiNyk osru o ifj.kkeh ykHk f}rh; tkap ds fu"d"kZ ij fuHkZj djsxkA vr% ek0 mPp U;k;ky; y[kuÅ ihB] y[kuÅ }kjk fjV ;kfpdk la[;k%3301 ¼,l@,l½@egsUnz iky oek cuke m0iz0 jkT; o vU; esa ikfjr fu.kZ;kns'k fnukafdr 12-12-2013 ds vuqikyu esa ;kph lsokP;qr vkj{kh egsUnz iky oekZ dks RkkRdkfyd izHkko ls lsok esa mlh osrueku ij iquZLFkkfir fd;k tkrk gS] tks og c[kkZLrxh ds fnukad dks izkIr djs jgs FksA blds lkFk gh lkFk ;kpkh dh vuqifLFkfr ds izdj.k dh izkjfEHkd tkap iqu% lEikfnr fd;s tkus gsrq Hkh vkns'k ikfjr fd;s tkrs gSaAß On 28.02.2014 the Additional Superintendent of Police submitted his report before the opposite party no.3 and after receiving the same, the opposite party no.3 issued a show cause notice dated 07.08.2014 to the petitioner. The petitioner submitted his reply dated 12.09.2014 to the show cause notice dated 07.08.2014. Thereafter, the opposite party no.3, vide order dated 17.09.2014 rejected the claim of the petitioner regarding payment of arrears of salary/back wages and other consequential service benefits.
Aggrieved by the order dated 17.09.2014 the petitioner filed a Claim Petition No.1523 of 2015 (Mahendra Pal Vs. State of U.P. and Others) before the learned Tribunal challenging the order dated 17.09.2014 and for relief of all consequential service benefits including arrears of salary for the period 31.01.1991 to 23.01.2014.
During the pendency of the Claim Petition before the Tribunal, the petitioner was retired from service on attaining the age of superannuation on 30.04.2016.
After exchange of the pleadings between the parties, the Tribunal partly allowed the claim petition of the petitioner vide order dated 26.04.2018 and quash the order dated 17.09.2014 only to the extent of refusal of consequential service benefits, the operative of the same reads as under:-
Þfoi{kh iqfyl v/kh{kd [khjh us ;kph dk Li"Vhdj.k vkus ds ckn iz'uxr~ vkns'k ikfjr fd;k gS ftlds vUrxZr ;kph dh vuqifLFkfr vof/k 93 fnu dk dke ugha rks nke ugha ds fl)kUr ij osrujfgr vodk'k Lohd`r fd;k vkSj ;kph dks lsokeqfDr ds fnukad sls lsok esa iquZLFkkiu vof/k ds e/; dk osru] HkRrk] ,fj;j o vU; ifj.kkeh ykHk u fn;s tkus ds vkns'k ikfjr fd;sA ;kph ds fo}ku vf/koDrk dk ;g dFku gS fd ;kph dks lsokeqfDr ds fnukad 31-01-1991 ls lsok esa iquZLFkkiu ds fnukad 23-01-2014 rd dh vof/k ds fy, lsokykHk ls oafpr fd;k x;k gS tks mfpr ugha gS D;ksafd ;kph dh ;kfpdk ekuuh; mPp U;k;ky; esa yfEcr Fkh vkSj ekuuh; mPp U;k;ky; us mlds fMlfely vkns'k dks fujLr dj fn;k gSA ,slh n'kk esa ;kph us pwafd mDr vof/k esa dksbZ dk;Z ugha fd;k gS blfy, dke ugha rks nke ugha ds fl)kUr ds vk/kkj ij ;kph osru] HkRrs o ,fj;j dk ykHk ikus dk vf/kdkjh ugha gS ijUrq lsok ls in~P;qr o lsok esa iquZLFkkiu dh vof/k dks ;kph ds lsokfuo`fRrd ykHk ds fy, tksM+k tkuk mfpr gksxkA rn~uqlkj izLrqr ;kfpdk va'kr% Lohdkj gksus ;ksX; gSA vkns'k ;kfpdk vkaf'kd :i ls Lohdkj dh tkrh gSA iz'uxr~ vkns'k fnukad 17-09-2014 layXud&1 esa vU; ifj.kkeh ykHk u fn;s tkus ds vkns'k dks fujLr fd;k tkrk gSA 'ks"k nksuksa vkns'k dh iqf"V dh tkrh gSA ;kph ds lsokfuo`fRrd ykHk ds laca/k esa mDr vof/k tksM+h tk;sxhA i{kdkj viuk&viuk O;; Lo;a ogu djsaxsAß The said order has been passed by the Tribunal on the basis of the following findings.
Aggrieved by the order of Tribunal dated 26.04.2018, the present writ petition has been filed.
After hearing learned counsel for the parties and going through the record, the question which is to be considered and decided in the present case is to the effect that whether the petitioner is entitled for the consequential service benefits for the intervening period i.e. 31.01.1991 to 23.01.2014 or not.
In order to decide the point in issue, we would like to quote the relevant portion of the judgments dated 30.08.2018 passed in Special Appeal No.760 of 2013 by this Court:-
"In the case of Somesh Tiwari Vs. Union of India and others, 2019 (2) SCC 592, Hon'ble the Supreme Court held as under:-
"The High Court while exercising its jurisdiction under Article 226 of the Constitution of India must consider the fact of each case. Mechanical application of the normal rule "no work no pay" may in a case of this nature, be found to be wholly unjust. No absolute proposition of law in this behalf can be laid down.
This Court in Commissioner, Karnataka Housing in Commissioner, Karnataka Housing Board v. C. Muddaiah, [(2007) 7 SCC 689 ] laid down the law, thus :-
"32. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged.
We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case).
The bald contention of the appellant-Board, therefore, has no substance and must be rejected."
In the case of Shiv Nandan Mahto Vs. State of Bihar and others, 2013 (11) SCC 626, Hon'ble the Supreme Court held as under:-
" Having heard learned Counsel for the parties, we are constrained to observe that the High Court failed to examine the matter in detail in declining the relief to the Appellant. In fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the Appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension, as wrongly recorded by the High Court. The conclusion is, therefore, obvious that the Appellant could not have been denied the benefit of backwages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion, the Appellant was entitled to be paid full backwages for the period he was kept out of service.
Consequently, the appeal is allowed. The order passed by the Division Bench is quashed and set aside. The Appellant has already been reinstated in service. The Respondents are, however, directed to pay to the Appellant the entire full backwages from the period he was kept out of service till reinstatement. The full backwages shall be paid to the Appellant with 9% interest. Let the amount be paid to the Appellant within a period of three months from the date of receipt of copy of this order."
And Hon'ble Supreme Court in the case of Tapash Kumar Paul Vs. Bharat Sanchar Nigam Ltd. and another, 2014 (15) SCC 313, after considering the various judgments on the privisous judgment passed in the case of Telegarph Deptt. Vs. Satosh Kumar Seal 2010 (6) SCC 773; Jasbir Singh Vs. Haryana State Agriculture Mktg. Board, 2009 (15) SCC 327; BSNL Vs. Kailash Narayan Sharma Order dated 07.01.2014 (SC) in Civil Appeal No. 107 of 2017); Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya, 2013 (10) SCC 324, held that, One set of view is to the effect that if the termination of employee has been found illegal, the relief by way of reinstatement with back wages is not automatic even if the termination of employee is found to be illegal or in contravention to the prescribed procedure, placing reliance on the judgment given by three Judges Bench, namely, Hindustan Tin Works (P) Ltd. Vs. Employees, 1979 (2) SCC 80; Surendra Kumar Verma Vs. Central Govt. Industrial Tribunal-cum-Labour Court, 1980 (4) SCC 443, wherein Hon'ble Apex Court held as under:-
"It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavoured to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it they were forced to litigation up to the Apex Court now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them.
* * * In the very nature of things there cannot be a straitjacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular."
In the case of Fisheries Department State of Uttar Pradesh Vs. Charan Singh, 2016 (8) SCC 150, Hon'ble the Supreme Court held as under:-
"Thus, in view of the cases referred to supra, there was absolutely no justification on the part of the Industrial Tribunal to deny back wages to the Respondent even when it is found that the order of termination is void ab initio in law for non-compliance of the mandatory provisions Under Section 6N of the Act. Keeping in view the fact that the period of termination was in the year 1975 and the matter has been unnecessarily litigated by the employer by contesting the matter before the Industrial Tribunal as well as the High Court and this Court for more than 40 years, and further, even after the Award/order of reinstatement was passed by the Industrial Tribunal directing the employer to give him the post equivalent to the post of Tube-well Operator, the same has been denied to him by offering the said post which is not equivalent to the post of Tube-well Operator and thereby, attributing the fault on the Respondent for non reporting to the post offered to him, which is once again unjustified on the part of the employer.
21. Thus, the principle "no work no pay" as observed by this Court in the catena of cases does not have any significance to the fact situation of the present case as the termination of the services of the workman from the post of Tube-well Operator is erroneous in law in the first place, as held by us in view of the above stated reasons.
22. The Respondent and his family members have been suffering for more than four decades as the source of their livelihood has been arbitrarily deprived by the Appellant. Thereby, the Right to Liberty and Livelihood guaranteed Under Articles 19 and 21 of the Constitution of India have been denied to the Respondent by the Appellant as held in the case of Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors. (1985) 3 SCC 545, wherein this Court has held thus:
32. As we have stated while summing up the Petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the Petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P."
In the case of Pawan Kumar Agarwala Vs. General Manager II and Appointing Auhority, State Bank of India and others, 2015 (15) SCC 184, Hon'ble the Supreme Court held as under:-
"For the reasons stated supra, we have examined the case threadbare on the basis of the material placed on record and rival legal contentions urged on behalf of the parties, we hold that the finding of the enquiry officer on the charges is vitiated on account of non-compliance of the statutory Rules and the principles of natural justice. In the absence of evidence, the order of reinstatement sans full back wages is unjustified in law. At best, the High Court should have made deduction of the amount of pension received by the Appellant after awarding full back wages for the period in question. In not doing so, the orders of the learned Single Judge and the Division Bench of the High Court are liable to be set aside with regard to non-grant of full back wages. "
In the case of Chairman Gwalior Development Authority and another Vs. Sandeep Tiwari and another, 2016 (1) SCC 797, Hon'ble the Supreme Court held as under:-
"We see no justifiable reason warranting payment of back wages to the respondents, who were appointed without following any procedure of law and moreover, the High Court has not assigned any reason for which 50% back wages have been granted to the respondents. In the circumstances, the directions given by the High Court regarding payment of back wages are set aside.
In the case of Tamil Nadu Terminated Full time Temporary LIC Employees Association Vs. S.K. Roy, Chairman, Life Insurance Corporation of India and another, 2016 (9) SCC 366, Hon'ble the Supreme Court held as under:-
"Mr. Mukul Rohatgi, the learned Attorney General appearing on behalf of the review Petitioner-LIC contends that this Court, while passing the judgment and order dated 18.03.2015, failed to appreciate that the Tulpule and Jamdar awards stood substituted by the "Terms of Compromise" way back on 01.03.1989, which stood finally disposed of vide judgment and order dated 07.02.1996 passed by this Court in Civil Appeal No. 1790 of 1989. It is further contended that this Court failed to appreciate the effect of settlement of an award, in the light of the decision of this Court in the case of Herbertsons Ltd. v. Workmen (1976) 4 SCC 736, which has further been followed by this Court in the cases of Transmission Corpn., A.P. Ltd. v. P. Ramchandra Rao (2006) 9 SCC 623 and ITC Ltd. Workers Welfare Assn. v. ITC Ltd. (2002) 3 SCC 411.
The review Petitioner-LIC has not submitted anything on record to suggest that the impugned judgment and order suffers from an error apparent in law. While in the review petitions the factual and legal submissions urged in the Civil Appeal have been reiterated, in the written submissions placed before us, the emphasis shifted to the practical difficulty in implementation of the order of this Court. It has been well settled by this Court that a mere repetition of the same arguments which were urged in the appeal and have been rejected, is not sufficient to justify the exercise of power of review Under Article 137 of the Constitution by this Court. "
In the case of Shobha Ram Raturi Vs. Haryana Vidhyut Prasaran Nigam Ltd. and others, 2016 (16) SCC 663, Hon'ble the Supreme Court held as under:-
"The denial of back wages to the Appellant by the High Court vide its order dated 14.09.2010 was assailed by the Appellant by filing Letters Patent Appeal No. 489 of 2011. The High Court rejected the claim of the Appellant, while dismissing the Letters Patent Appeal on 26.5.2011. The orders dated 14.09.2010 and 26.5.2011 passed by the High Court limited to the issue of payment of back wages, are subject matter of challenge before this Court.
Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31.12.2002 was set aside, the Appellant was entitled to all consequential benefits. The fault lies with the Respondents in not having utilised the services of the Appellant for the period from 1.1.2003 to 31.12.2005. Had the Appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1.1.2003 to 31.12.2005, the Respondent cannot be allowed to press the self serving plea of denying him wages for the period in question, on the plea of the principle of "no work no pay"."
In the case of M.P. State Electricity Board Vs. Jarina Bee (Smt.), 2003 (6) SCC 141, after placing reliance in the case of P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar (JT 2001(1) SC 336), Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and Another (2002 AIR SCW 3008) and Indian Railway Construction Co. Ltd. v. Ajay Kumar (JT 2003(2) SC 295), it has been held as under:-
"In P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar (JT 2001(1) SC 336), this Court found fault with the High Court in setting aside the award of the Labour Court which restricted the back wages to 60% and directing payment of full back wages. It was observed thus: "The labour court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the labour Court.
It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect."
Again at paragraph 12, this Court observed: "Payment of back wages having a discretionary element involved in it has to be dealt with, 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."
The position was reiterated inHindustan Motors Ltd. v. Tapan Kumar Bhattacharya and Another (2002 AIR SCW 3008)(2002 AIR SCW 3008) and Indian Railway Construction Co. Ltd. v. Ajay Kumar JT 2003(2) SC 295.
Applying the legal principles, the inevitable conclusion is that the High Court committed an error in holding that the award of full back wages was the natural consequence. "
In the case of Munil Sharma Vs. State of Assam and Ors. 2016 (14) SCC 208, Hon'ble the Apex Court has held that Court cannot grant back wages automatically in case if the impugned order of punishment of dismissal is set aside but while doing it should take into consideration that in absence of any material on record before granting the same Court must be considered that there should be same material on record that he remained unemployed during the period on which his services were terminated.
In the case of P. Darupaiah (D) Thr. LRs. Vs. General Manager, Thruuvalluvar Transport Corporation Ltd, 2018 LAB. I.C. 197, Hon'ble the Apex Court held as under:-
" Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.
The law on the question of award of back wages has taken some shift. It is now ruled in cases that when the dismissal/removal order is set aside/withdrawn by the Courts or otherwise, as the case may be, directing employee's reinstatement in service, the employee does not become entitled to claim back wages as of right unless the order of reinstatement itself in express terms directs payment of back wages and other benefits. (See M.P. State Electricity Board vs. Jarina Bee(Smt.), (2003) 6 SCC 141). (See also Sukhdev Pandey vs. Union of India (2007) 7 SCC 455) The pri nciple has been laid down keeping in view the public interest that a Government servant who does not discharge his duty is not allowed pay and arrears at the cost of public exchequer. It cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court. Denial of salary on the ground of 'no work no pay' cannot be treated as a penalty (See State of U.P. vs. Madhav Prasad Sharma (2011) 1 JT 326) and mechanical application of normal Rule "no work no pay" may in some cases be found to be wholly unjust. No absolute proposition of law in this behalf can be laid down. (See Somesh Tiwari v. Union of India (2009) 2 SCC 592) While dealing with the prayer for back wages, factual scenario, equity and good conscience and a number of other factors; like the manner of selection; the nature of appointment; the period for which the employee had worked with the employer, etc. have to be kept in mind. All these factors are illustrative and no precise formula can be laid down as to under what circumstances full or partial back wages should be awarded. It depends upon the facts and circumstances of each case. (See Kanpur Electricity Supply Company Limited v. Shamim Mirza (2009) 1 SCC 20).
In other words, it can be said that legal position is fairly settled by a catena of decisions that direction to pay back wages in its entirety is not automatic consequent upon declaration of dismissal order bad in law. The concept of discretion is inbuilt in such exercise. The court is required to exercise discretion reasonably and judiciously keeping in view the facts and circumstances of the case. Each case, of course, would depend on its own facts and no straight jacket formula can be evolved."
The Hon'ble Apex Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalya & Others reported in (2013) 10 SCC 324, laid down the following principles to govern the payment of back wages:-
"38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v.Employees [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53]."
In the present case, the petitioner was dismissed on 31.01.1991 and immediately thereafter assailed the order of dismissal by means of Writ Petition No.3301 S/S of 1991 (Mahendra Pal Vs. State of U.P. and Others) and the said petition could not be disposed of till the year 2013 .
On 12.12.2013 this Court after recording the following findings interfered in the order of dismissal dated 31.01.1991 and remanded back the matter to the disciplinary authority to hold the enquiry afresh.
"In view of the above, the impugned dismissal order dated 31.1.91 not only is in utter disregard of the principles of natural justice, but the inquiry officer has not followed the settled principles of law. It was incumbent upon the inquiry officer to have proved the charges levelled against the petitioner which was not done in the instant case. Moreover, the disciplinary proceedings were concluded behind the back of the petitioner and the documents furnished by the petitioner were not considered by the disciplinary authority."
Thereafter, the petitioner was reinstated vide order dated 24.01.2014 on the pay scale prevailing at the time of dismissal from service i.e. on 31.01.1991 and on the basis of the reasons recorded in the preliminary enquiry report, the order dated 17.09.2014 denying the service benefits was passed. The order dated 17.09.2014 based on the preliminary enquiry report (izkjfEHkd tkap vk[;k) is not in consonance with the judgment dated 12.12.2013 passed by this Court in earlier Writ Petition No.3301 (S/S) of 1991. During the pendency of the writ petition, the petitioner retired on 30.04.2016 on attaining the age of superannuation.
Keeping in view the facts of the case particularly that the writ petition challenging the order of dismissal dated 31.01.1991 was filed by the petitioner in the year 1991 itself and was allowed after about 22 year vide judgment and order dated 12.12.2013 and thereafter on the basis of the preliminary enquiry report (izkjfEHkd tkap vk[;k) the order dated 17.07.2014 denying the service benefits was passed, which in our view is not in consonance with judgment and order dated 12.12.2013 and guidelines laid down by the Hon'ble Apex Court in the case of Deepali Gundu Surwase (supra) particularly paras 38.5 and 38.6, we are of the view that the petitioner is entitled to service benefits and justice would suffice if we grant 30% of back wages for the period w.e.f. 31.01.1991 to 23.01.2014 to the petitioner.
Accordingly, the writ petition is allowed and the impugned order dated 26.04.2018 passed in the Claim Petition No.1523 of 2015 (Mahendra Pal Vs. State of U.P. and Others) is set aside/quashed only to the extent of denial of back wages to the petitioner. The respondents are directed to provide service benefits and 30% of back wages/salary to petitioner within three months from the date of production of certified copy of this judgment.
The writ petition is allowed in above terms. No order as to costs.
Order Date :- 3.1.2020 Vinay/-