Uttarakhand High Court
C.P. Constable No. 1400 Sushil Kumar vs State Of Uttarakhand And Others on 27 November, 2019
Equivalent citations: AIRONLINE 2019 UTR 596
Author: Alok Kumar Verma
Bench: Ramesh Ranganathan, Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
WRIT PETITION (S/B) NO. 399 OF 2014
C.P. Constable No. 1400 Sushil Kumar ..........Petitioner.
Vs.
State of Uttarakhand and others. ...Respondents
Sri Manoj Sah, learned counsel for the petitioner.
Sri Ranjan Ghildiyal, learned Brief Holder for the State of Uttarakhand / respondents.
Dated : 27th November, 2019
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Ramesh Ranganathan, C.J. (Oral) Heard Sri Manoj Sah, learned counsel for the petitioner, and Sri Ranjan Ghildiyal, learned Brief Holder appearing on behalf of the State Government.
2. The challenge, in this writ petition, is to the order passed by the Uttarakhand Public Services Tribunal, Dehradun in Claim Petition No. 31/DB/2013 dated 08.08.2014.
3. Facts, to the limited extent necessary, are that the petitioner was transferred from Saharanpur to Pauri on 02.12.1998, and was relieved of his duties, as a Constable at Saharanpur, on 31.12.1998 to join at Pauri. The petitioner, however, chose not to join at his new place of posting. For his absence from duty, he was placed under suspension with effect from 16.02.1999, and was directed to be present at Pauri. A disciplinary inquiry was conducted against the petitioner, and the punishment of dismissal from service was imposed on him on 01.07.2000. Aggrieved by the order of dismissal, the petitioner preferred an appeal which was also rejected by order dated 02.11.2000. Questioning both the orders, the petitioner invoked the jurisdiction of this Court filing Writ Petition (S/B) No. 843 of 2001, which 2 was dismissed by order dated 05.05.2008 on the ground that the petitioner had an alternative remedy of approaching the Tribunal.
4. The petitioner, then, approached the Tribunal by filing Claim Petition No. 79 of 2008. By its order dated 18.06.2009, the Tribunal set aside the order of punishment dated 01.07.2000 and the appellate order dated 02.11.2000, and remitted the matter back to the Disciplinary Authority for taking appropriate action as expeditiously as possible, but not beyond the period of three months from the date of receipt of a copy of the order. The Disciplinary Authority, thereafter, caused a preliminary inquiry through the Additional Superintendent of Police, Pauri Garhwal who submitted a preliminary inquiry report on 21.10.2009 holding the petitioner guilty of absence from duty; and that the medical certificates relied upon by him were of no avail. A show cause notice was issued to the petitioner under the U.P. Police Officers of the Subordinate Ranks (Punishment & Appeal) Rules, 1991 (for short the '1991 Rules'), and he was asked to show cause why an adverse and censure entry not be entered in his record. The petitioner was reinstated into service by order dated 12.10.2009, and joined duty on 21.10.2009. The Superintendent of Police, Pauri passed order dated 07.07.2010 imposing on the petitioner the punishment of censure. Aggrieved thereby, the petitioner preferred an appeal which was also dismissed by order dated 08.04.2013. Questioning both the orders, the petitioner filed Claim Petition No. 31/DB/2013 which was also dismissed by order dated 08.08.2014. Aggrieved thereby, the present writ petition.
5. Before the Tribunal, the petitioner questioned the validity of the order of punishment, besides seeking pay, allowances and other consequential benefits from the date of his initial suspension on 16.02.1999 till 20.10.2010, with interest at 12% per annum, contending that failure to furnish a copy of the preliminary inquiry report to him was in violation of Article 311 of the Constitution of India; and he could not have been denied back-wages for the minor punishment of censure.
6. With respect to the petitioner's claim of the inquiry being vitiated, for failure to furnish a copy of the preliminary inquiry report to him, the Tribunal relied on the judgment of the Supreme Court in Nirmla Jhala vs. 3 State of Gujrat : (2013) 4 SCC 301, wherein it was held that failure to furnish a copy of the preliminary inquiry report was not fatal, as such a report is used only to take a prima facie view and nothing more.
7. The Tribunal, thereafter, held that the punishment imposed on the petitioner was a minor penalty, and the Rules relating to imposition of minor penalties only required a show cause notice to be given to the petitioner, and the petitioner being given an opportunity to submit a reply thereto; and it was wholly unnecessary to conduct a departmental inquiry for imposition of the minor penalty of censure.
8. With regards the petitioner's claim to be paid back wages, the Tribunal referred to the medical certificates submitted by him, and to Rule 382 of the 1991 Rules in terms of which officers and constables, who fall ill when on duty or who are ill when they are due to return to duty, must apply for admission to the district police hospital or for treatment at the nearest dispensary, if the police hospital is out of easy reach; and the fact of their admission or treatment must be reported to the local Superintendent of Police who will take immediate steps to communicate the fact to the Superintendent of Police whose subordinates they are. The Tribunal held that it was obligatory on the part of the petitioner, while undergoing treatment at Ghaziabad, to do so at the Police Hospital situated there; he should have contacted the Civil Hospital or the dispensary at Ghaziabad, instead of allegedly taking treatment in a private hospital; in its earlier order, the Tribunal had merely quashed the punishment, and not the whole inquiry against the petitioner; it was evident, therefore, that the petitioner was not absolved of the charges; the medical certificates submitted by the petitioner were to be verified by the CMO; the CMO, Pauri had opined that the petitioner was suffering from low backache ark and radiating pain in the lower limbs; the Additional S.P. had held that the medical certificates merely revealed that the petitioner was suffering from sciatica, and other like pain; he should have reported for duty at Pauri, and could have undergone treatment at Pauri, where also a good Civil Hospital was available; the petitioner was part of a disciplined police force; it was common for employees in the State of Uttarakhand to avoid duty in the hilly areas of the State, and to insist on being 4 posted in the plain areas; and, being a part of the uniformed force, any indiscipline on the part of the petitioner could not be viewed lightly, and must be dealt with sternly. On this aspect, the Tribunal relied on the judgments of the Supreme Court in Union of India and others vs. Ghulam Mohd. Bhat (2005) INSC 575 ; Government of India and others vs. George Philip :
(2006) 13 SCC 1 ; Chennai Metropolitan Water Supply and Sewerage Board vs. T.T. Murali : (2014) INSC 83, and opined that the punishing authority had taken a very lenient view in imposing the punishment of censure, though he was liable to be imposed a stringent punishment.
9. With regards the petitioner's claim for back-wages and salary, the Tribunal opined that he was denied such back-wages on the principle of "no work no pay"; Rule 54-A of the Fundamental Rules, on which the petitioner had placed reliance upon, was inapplicable; Rule 54-A(1) would apply only where the earlier order had been set aside by the Court, and the employee had been directed to be reinstated without holding any further inquiry; under Rule 54-A(2), the delinquent would get the whole salary only if the order of punishment is set aside, and no further inquiry is proposed; in its earlier order, the Tribunal had set aside the order of punishment, remitting the matter back to the disciplinary authority for taking appropriate action as expeditiously as possible; it is evident that the inquiry subsisted; and Rule 54-A was, therefore, not applicable. Thereafter, the Tribunal observed that grant of back-wages and salary differed from case to case; merely because the order of punishment is set aside, and reinstatement is directed, it did not mean that continuity of service, and consequential benefits, should follow as a matter of course; whenever Courts or Tribunals direct reinstatement, they should apply their judicial mind, to the facts and circumstances, to decide whether continuity of service or consequential benefits should also be directed; and relief by way of reinstatement with back wages is not automatic, and may not apply in a fact situation where the employee's termination is not contrary to the prescribed procedure.
10. After relying on the judgments of the Supreme Court in Uttaranchal Forest Development Corporation vs. M.C. Joshi : (2007) 9 SCC 353 ; Kendriya Vidyalaya Sangathan and another vs. S.C. Sharma :
5(2005) 2 SCC 363 ; Metropolitan Transport Corporation vs. V. Venkatesan : 2009 (5) SLR 775, the Tribunal held that the petitioner could not demonstrate from the record that he had ever pleaded that he had not been employed anywhere from the date of his dismissal till the date of his reinstatement; and since the petitioner did not plead this fact, it could not be held that he was entitled to claim full back-wages or salary.
11. After referring to the judgments of the Supreme Court in Om Prakash vs. State of Punjab and others : (2011) 14 SCC 682 ; and State of U.P. and others vs. Mahadev Prasad Sharma (order in SLP (C) No. 31461 of 2009 dated 10.01.2009), the Tribunal dismissed the claim petition holding that the petitioner was not entitled to any back-wages or salary, except what had been granted to him by the competent authority for the suspension period.
12. Sri Manoj Sah, learned counsel for the petitioner, would submit that, on an order directing reinstatement being passed, payment of back- wages followed as a matter of course; the very fact that the disciplinary authority chose only to impose a minor punishment of censure, would require the petitioner to be paid his back-wages for the period he was forcibly kept out of duty; and, in any event, he was entitled to be paid his subsistence allowance for the period he was placed under suspension.
13. On the other hand Sri Ranjan Ghildiyal, learned Brief Holder appearing on behalf of the State Government, would submit that, as rightly held by the Tribunal, it is only if the petitioner had pleaded and established that he was not gainfully employed elsewhere, during the period he remained absent from duty with the respondent-Organisation, could he then claim payment of back-wages; the petitioner belongs to a disciplined police force; his absence from duty, without justification, warranted imposition of a sterner penalty; the authority concerned had taken a very liberal view in awarding the punishment of censure on the petitioner; and, in such circumstances, no interference is called for.
14. The relevant Rules stipulate that, while imposing a minor penalty, all that is required is that the employee should be put on notice and be given 6 an opportunity of being heard. No departmental inquiry is contemplated for imposition of a minor penalty. Sri Manoj Sah, learned counsel for the petitioner, does not dispute that a show cause notice was issued to the petitioner, and a reply thereto was submitted by him thereto. Since the punishment imposed on the petitioner is of censure, which is a minor punishment, it is evident that the procedural rules, relating to imposition of a minor punishment, have been complied with.
15. The petitioner's claim for back-wages is not tenable. The Tribunal, while passing its earlier order in Claim Petition No. 79 of 2008 dated 18.06.2009, had merely set aside the order of punishment dated 01.07.2000, and the appellate order dated 02.11.2000, remitting the matter to the disciplinary authority for taking appropriate action. No direction was issued for payment of back-wages till the date of the order i.e. 18.06.2009. The said order of the Tribunal has attained finality, since the petitioner has chosen not to invoke the writ jurisdiction of this Court against the said order. The petitioner cannot, after having permitted the order passed in Claim Petition No. 79 of 2009 dated 18.06.2009 to attain finality, now seek payment of back-wages. Further, as has been noted by the Tribunal in its order in Claim Petition No. 31 / DB/ 2013 dated 08.08.2014, the petitioner has nowhere pleaded, much less established, that he was not gainfully employed during the period he was absent from duty in the respondent-Organization.
16. In Managing Director, Uttar Pradesh Warehousing Corporation and another vs. Vijay Narayan Vajpayee : (1980) 3 SCC 459, the Supreme Court held that, in the exercise of its certiorari jurisdiction under Article 226 of the Constitution, the High Court acts only in a supervisory capacity, and not as an appellate tribunal; it does not review the evidence upon which the inferior tribunal proposed to base its conclusion; it simply demolishes the order which it considers to be without jurisdiction or manifestly erroneous, but does not, as a rule, substitute its own views for those of the inferior tribunal; in matters of employment, the High Court, while exercising its supervisory jurisdiction under Article 226 of the Constitution and ordinarily, in the event the punishment is found to be illegal, 7 simply quashes the same, and would not further give a positive direction for payment of full back wages to the employee; such a power may properly be exercised pursuant to an adjudication or award by an Industrial Tribunal or a Labour Court; whether an employee should be reinstated in public employment, with or without full back wages, is a question of fact depending on evidence to be produced before the Tribunal; if, after termination of his employment, the employee was gainfully employed elsewhere, that is one of the important factors to be considered in determining whether or not reinstatement should be with full back wages and with continuity of employment; and, in the absence of any such plea, the Court would not be justified in directing payment of back-wages.
17. It is only if the employee pleads and proves that he was not gainfully employed elsewhere, during the period he was denied wages, would his claim, to be entitled for back-wages, necessitate examination.
18. As has been noted by the Tribunal, in the order impugned in this writ petition, the petitioner did not plead, much less prove, that he was not gainfully employed during the period he was absent from duty with the respondent-Organization. The Tribunal was, in our view, justified in denying back-wages to the petitioner for the period he was not on duty.
10. Sri Manoj Sah, learned counsel for the petitioner, would submit that the petitioner should at least be paid his subsistence allowance for the period he was under suspension. In the order, impugned in this writ petition, the Tribunal has protected his interests holding that he was not entitled to back- wages or salary, except what had been granted by the competent authority for the suspension period. Since the petitioner's claim for payment of subsistence allowance has been protected to the extent it was granted by the competent authority, we may not be justified in issuing a mandamus in this regard, more so since it does not even appear to have been contended before the Tribunal, during the hearing of Claim Petition No. 31/DB/2013, that the petitioner had also been denied payment of his subsistence allowance.
20. The writ petition fails and is, accordingly, dismissed. Suffice it, while dismissing the writ petition, to make it clear that the order now passed 8 by us shall not disable the petitioner from submitting a representation for payment of subsistence allowance, and for the respondent-officials, in case any such representation is submitted, to consider the petitioner's claim for payment of subsistence allowance in accordance with law.
21. No costs.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, C.J.)
27.11.2019 27.11.2019
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