Orissa High Court
Sri Garibananda Patel vs State Of Odisha Represented Through The ... on 18 January, 2018
Author: B.K.Nayak
Bench: B.K.Nayak
HIGH COURT OF ORISSA:CUTTACK
W.P. (C) No.1029 of 2017
In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950.
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Sri Garibananda Patel ......... Petitioner
Versus
State of Odisha, represented through
the Secretary to Government,
Home Department and others ......... Opposite Parties
For Petitioner : M/s.Susanta Kumar Baral, S.Samal
D.Mishra, N.Behera and
S.Pati
For Opp. Parties : Mr.Bibekananda Bhuyan
Additional Government Advocate
.........
PRESENT:
THE HON'BLE MR. JUSTICE B.K.NAYAK
AND
THE HON'LE DR. JUSTICE D.P.CHOUDHURY
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Date of argument:18.12.2017 Date of judgment:18.01.2018
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Dr. D.P.Choudhury, J. Challenge has been made to the inaction of the
opposite parties in not considering the case of the petitioner to allow
monetary benefit for the period from 01.05.1997 to 17.05.2012.
2. FACTS
The infiltrated factual matrix leading to the case of the writ
petition is that the petitioner, while working as Senior Clerk in the Court
of the learned S.D.J.M., Sundargarh, was reverted to the rank of Junior
Clerk vide Office Order dated 30.04.1997 passed by the learned District
Judge, Sundergarh, opposite party no.2. The petitioner, challenging the
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said order of reversion, preferred an appeal under Section 23.2(b) of
Orissa Civil Service (C.C.A) Rules, 1962 (hereinafter called as "the
Rules, 1962") vide Departmental Appeal No.9 of 1997 before this Court.
Since the petitioner was reverted without having any departmental
proceeding, the Appeal Committee set aside the order of reversion on
18.05.2010. Therefore, in view of the order dated 18.05.2010 passed by the Appeal Committee, the petitioner was restored to the post of Senior Clerk with effect from 13.11.1995, i.e, from the date of initial promotion to the post of Senior Clerk. On 20.10.2011, the petitioner approached the learned District Judge, Sundergarh, opposite party no.2 to allow him the financial benefit with regard to restoration of his service. On 09.10.2015, a reminder was sent by the petitioner to opposite party no.2 but on 13.05.2016, opposite party no.2 sought for clarification from opposite party no.1 regarding sanction of fund for drawal of differential pay of the petitioner for the period from 01.05.1997 to 17.05.2012. But the opposite party no.1 rejected the grievance of the petitioner vide Annexure-8. Hence, the writ petition.
3. SUBMISSIONS Mr.Baral, learned counsel for the petitioner submitted that for no fault of the petitioner, he was reverted from the post of Senior Clerk to Junior Clerk. Also there was no departmental proceeding which the petitioner had faced for such reversion. According to him, the action of the opposite party no.2 was illegal and improper.
4. Mr.Baral, learned counsel for the petitioner further submitted that the Appeal Committee of this Court has categorically -3- rejected the claim of the respondent and directed for restoration of the petitioner to service. When the petitioner was declared as Senior Clerk with effect from 13.11.1995 taking into account the date of his initial promotion from the post of Junior Clerk to Senior Clerk being senior to one Sukadev Toppo and Bijay Kumar Samal in the cadre of Senior Clerk, he is deemed to have continued in service from 01.05.1997 till date and as such the petitioner is entitled to back wages/differential salary for the period from 01.05.1997 to 17.05.2012. According to the petitioner, the opposite parties 1 and 2 have illegally deprived the petitioner from getting the financial benefit even if the Appeal Committee of this Court has restored his service of Senior Clerk. Thus, the principle of natural justice under Article 14 of the Constitution has been violated.
5. Mr.Bhuyan, learned Additional Government Advocate, relying upon the counter affidavit filed by the opposite parties 2 and 3, submitted that the petitioner, while working as Senior Clerk in the Court of the S.D.J.M., Sundergarh, was reverted to rank of Junior Clerk for which he has preferred Departmental Appeal No.9 of 1997 before this Court. The Appeal Committee of this Court has set aside the order of reversion having arrayed as violation of principles of natural justice but it did not pass any other order towards the financial entitlement of the petitioner from the date of his reversion. Mr.Bhuyan, learned Additional Government Advocate further submitted that as the petitioner had not performed any duty in the post of Senior Clerk till his restoration, he is not entitled to any back wages/differential salary at all. So, he submitted to dismiss the writ petition.
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6. POINT FOR DETERMINATION The main point for determination is as to whether the petitioner is entitled to back wages/differential salary for the period from 01.05.1997 to 17.05.2012?
7. DISCUSSIONS It is not in dispute that the petitioner, while working as Senior Clerk in the Court of the learned S.D.J.M., Sundergarh, was reverted to the post of Junior Clerk on 30.04.1997 vide Annexure-1. It is also not in dispute that Departmental Appeal No.9 of 1997 was preferred by the petitioner before this Court. It is admitted that the Appeal Committee set aside the order of reversion by allowing the appeal of the petitioner. The relevant portion of the order dated 18.05.2010 passed by the Appeal Committee is produced below in the following manner:
"xx xx xx xx Item No.5: Appeal preferred by Shri Garibananda Patel, Junior Clerk in the Court of S.D.J.M., Bonai against the order of reversion passed by the District Judge, Sundergarh (LVIII- 9/97).
The appellant is present and heard. The appellant having been reverted to a junior post without any disciplinary proceeding, we are of the considered view that the order of reversion passed against the appellant is violative of the principles of natural justice and is otherwise illegal. The order of reversion is, therefore, set aside and the appeal is allowed.
Xx xx xx"
The aforesaid order of the Appeal Committee of this Court shows that the order of reversion was completely violative of the principles of natural justice as he was reverted to the post of Junior Clerk without having any disciplinary proceeding initiated against him. -5- When the petitioner has no mistake on his part and without having any procedure established in law being followed, the Appeal Committee has rightly declared such order illegal. Such order has not been challenged by the State under any provisions of law.
8. Not only this but also following the order dated 18.05.2010 passed by the Appeal Committee of this Court, learned District Judge, Sundergarh, opposite party no.2 passed the following order:
"DISTRICT COURT : SUNDERGARH Order No.183/ Date:01.10.2011 Reason: Order of reversion dtd. 30.4.97 being set-aside by the Appeal Committee, Hon'ble High Court of Orissa in Departmental Appeal No.9 of 1997 preferred by Sri Garibananda Patel, Jr. Clerk.
ORDER The order of reversion of Sri Garibananda Patel from the post of Sr. Clerk to the rank of Jr. Clerk made by District Court's Order No.77 dtd.30.04.1997 being set aside by the Appeal Committee, Hon'ble High Court of Orissa vide order dtd.18.05.2010 passed in Departmental Appeal No.9 of 1997 and after objection hearing, the seniority of Sri Garibananda Patel who is now in the cadre of Senior Clerk (Jr. Branch) is declared w.e.f. 13.11.1995 taking into account the date of his initial promotion from the post of Junior Clerk to the cadre of Sr. Clerk made vide District Court's Order No.248 dtd.13.11.1995 and he is declared as Senior to Sri Sukadev Toppo and Sri Bijay Kumar Samal in the cadre of Senior Clerk (Jr. Branch). The name of Sri Garibananda Patel be placed above the names of Sri Sukadev Toppo and Sri Bijay Kumar Samal in the Gradation list.
Inform.
Sd/-District Judge, Sundergarh."
The aforesaid order passed by the learned District Judge, Sundergarh, opposite party no.2 clearly shows that the petitioner was declared Senior Clerk with effect from 13.11.1995 having declared his seniority to Sukadev Toppo and Bijay Kumar Samal in the cadre of -6- Senior Clerk (Junior Branch). Annexure-5 shows that the petitioner has made representation to the opposite party no.2 on 20.10.2011 on the ground that from the date of his restoration of seniority, i.e., 01.05.1997, he should be allowed back wages/differential arrear salary in the post of Senior Clerk. From Annexures-5, 6, 7 and 8, it further appears that the learned District Judge, Sundergarh, opposite party no.2 made correspondence with the State Government in the Department of Home as to whether the petitioner is entitled to all service benefits including the financial benefits and accordingly, the Home Department has clarified on 24.10.2016 in the following manner vide Annexure-8:
"Government of Odisha Home Department No.37423/HS Bhubaneswar dated the 24th October, 2016 Home-HC-SVCOND-0058/2016 From Sri P.K.Rout Deputy Secretary to Government To District and Sessions Judge Sundergarh Sub:- Clarification on payment of arrear salary and other entitlements to Sri Garibananda Patel, Retd Head Clerk for the period from 01.05.1997 to 17.05.2012 Sir, Inviting reference to your Letter No.2501 Dated 13.05.2016 as well as further correspondences on the above captioned subject, I am directed to say that as the order of reversion of Sri Garibananda Patel has been set aside by the Appeal Committee, Hon'ble High Court, the previous status and seniority of Sri Patel has been restored.
2. The pay of Sri Patel would be decided under U/r 79(c) of Odisha Service Code in the manner had he been in service. To clarify further, it means, through he would be given incremental benefits, the benefit would be given notionally. Sri Patel would not be entitled any financial benefits/arrear benefits because of non-performance of duty till his joining in the higher post U/r 56 of Odisha Service Code.
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3. The original service book of Sri Garibananda Patel returned with the letter and the same may also be acknowledged.
This is issued with the approval of Finance Department vide their UOR No.125 C.S.-III Br. Dated 16.07.2016.
Xx xx xx xx"
The aforesaid order clearly shows that the petitioner would not be entitled to any financial benefits/arrear benefits because of non- performance of duty till his joining in the high post under Rule 56 of the Odisha Service Code although he would be given the increment benefits notionally. For better appreciation, Rule-56 of Odisha Service Code is placed in the following manner:
"56. Drawal and cease to drawal of Pay and Allowance:
Subject to exceptions specifically provided in these rules, a Government servant shall begin to draw the pay and allowances to his post with effect from the date on which he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties."
But there is a Government instruction vide Finance Department No.37031/F dated 4.7.1978 where the exceptions to the said Rule has been enumerated. Clasue-2 of that notification states in the following manner:
"xx xx xx xx
2.Keeping in view the judicial verdict in the matter, Government are pleased to decide that while the general principle enunciated in Rule 56 of Orissa Service Code would continue to govern the payment of pay and allowances to Government servants, in cases where a Government servant is found to have been wrongly deprived of his legitimate claim to a post and on the strength of judicial decision or otherwise, his claim to the post is subsequently allowed and he is appointed to the post with retrospective effect, he will be allowed to draw pay and allowances with effect from the date of his claim to the post is admitted.
Xx xx xx xx"
-8-The aforesaid clarification has clearly mentioned that where the Government servant is found to have been wrongly deprived his legitimate claim to a post and his claim is subsequently allowed by judicial decision or otherwise and he is appointed to that post with retrospective effect, he should be allowed the arrear pay allowance etc.
9. In the instant case, absolutely there is no reasons assigned for reversion of the petitioner from the post of Senior Clerk to the post of Junior Clerk and also the Appeal Committee of this Court has given clean-chit to the petitioner and allowed his restoration of seniority. When there is no departmental proceeding, the Appeal Committee has given the verdict in favour of the petitioner and the petitioner has been restored with retrospective effect being deemed to have continued in service as Senior Clerk, Clause 2 of said circular dated 4.7.1978, which is exception to Section 56 would apply. This aspect has not been examined by the Government in Home Department's letter dated 24.10.2016. So, the impugned letter dated 24.10.2016 (Annexue-8) cannot stand on the way to deprive the petitioner from getting his back wages/differential arrear salary.
10. It is also relevant to quote the judgment of the Hon'ble Supreme Court in the case of Deepali Gundu Surwase -V- Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others; (2013) 10 SCC 324 where Their Lordships, at paragraphs-38 to 38.7, have observed in the following manner:
"38. The propositions which can be culled out from the aforementioned judgments are:
38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.-9-
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 victimizing the employee or workman, then the Court or Tribunal 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 sufferer is the employee/workman and there is no justification to give 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
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premise that finalization 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 Private Limited v. Employees of Hindustan Tin Works Private Limited (supra). 38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."
With due regard to the aforesaid decision, in the instant case, there being wrongful reversion of the service of the petitioner and he being entitled to continue in service as Senior Clerk as per normal rule, he is entitled to the back wages/differential arrear salary for the post of Senior Clerk even if he has not worked in such post. On the other hand, he is entitled to back wages/differential arrear salary with effect from 01.05.1997 to 17.05.2012. Point is answered accordingly.
11. CONCLUSION In view of the aforesaid analysis, we are of the view that since Annexure-8 has been issued without application of the exception to the Rule 56, same is liable to be quashed and the Court do so. Further, the opposite parties are directed to sanction and disburse the arrear monetary benefit of the petitioner for the post of Senior Clerk for the period from 01.05.1997 to 17.05.2012 with due regard to his
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seniority within a period of two months failing which the same shall be paid to the petitioner with 9% simple interest from the date of his entitlement till actual payment.
The writ petition is disposed of accordingly.
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Dr.D.P.Choudhury,J.
B.K.Nayak, J I agree.
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B.K.Nayak,J.
Orissa High Court, Cuttack
Dated the 18th Day of Jan,2018/Nayak