Madras High Court
Salim Ali Centre For Ornithology vs Dr.Mathew K.Sebastian on 27 July, 2021
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana, Krishnan Ramasamy
W.A.No.35/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.07.2021
CORAM
THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
W.A.No.35 of 2021
and C.M.P.No.448 of 2021
1. Salim Ali Centre for Ornithology
& Natural History
rep. by its Member Secretary,
Anaikatty P.O., Coimbatore-641 108.
2. The Director,
Salim Ali Centre for Ornithology
& Natural History,
Anaikatty P.O., Coimbatore-641 108. .. Appellants/Respondents
Vs.
Dr.Mathew K.Sebastian .. Respondent/Petitioner
***
Prayer : Writ Appeal filed under Clause 15 of Letters Patent against the
order dated 25.02.2020 in W.P.No.29201 of 2011.
***
For Appellants : Mr.J.Abishek
For Respondent : Mr.Sundar Narayan
JUDGEMENT
PUSHPA SATHYANARAYANA, J.
Questioning the correctness of the order of the writ Court dated 25.02.2020 made in W.P.No.29201 of 2020, the instant appeal is instituted.
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2. By virtue of the order impugned, the writ petition filed by the respondent herein was allowed by this Court, thereby, directing the appellants to pay the backwages along with interest of 9% p.a., to the writ petitioner for the period from 23.08.2002 to 30.04.2007 within six weeks of the date of receipt of the said order.
3. Though there is no dispute qua the facts, for better appreciation of the appeal, the short facts germane for filing this appeal are that : the writ petitioner joined the appellants institution as Extension Officer on 17.11.1993, but he was terminated from service on 30.01.1996 ; he, along with other similarly placed colleagues, successfully challenged the said termination order in W.P.No.1784 of 1996 and this Court in the common order dated 23.08.2002 (Dr.E.Johnson and others V. Salim Ali Centre for Ornithology and Natural History, 2002 (4) CTC 65) directed his restatement with service benefits, but without backwages ; the appeals filed against the said order were dismissed in Salim Ali Centre for Ornithology and Natural History V. Dr.C.P.Geevan, (2010) 4 MLJ 1180 consequent to which, the writ petitioner was reinstated in his original post on 16.12.2010 ; since there was a stay in the said appeal, the writ petitioner could not join the services and he was out of employment from https://www.mhc.tn.gov.in/judis/ Page 2/8 W.A.No.35/2021 23.08.2002 to 30.04.2007 and he was in some other employment only from 01.05.2007 to 20.01.2011 ; he was entitled for service benefits in terms of the order dated 23.08.2002, which was stayed only at the instance of the appellants ; he submitted representations on 21.02.2011, 01.04.2011, 27.04.2011, 12.08.2011 and 21.11.2011 seeking service and permissible and lawful monetary benefits ; since no fruitful orders were forthcoming, he filed W.P.No.29201 of 2011 which culminated in the order impugned in this appeal.
4. The learned counsel for the appellants submitted that since there was an order of stay of the order dated 23.08.2002 granted by the Division Bench of this Court, the writ petitioner was not reinstated in service and after the dismissal of their appeal, the orders of this Court have been complied with by the appellants and the eligible benefits have been extended to him, and thus, the writ petitioner is not entitled for the benefits sought for in the instant proceedings.
5. The learned counsel for the respondent contended that the writ petitioner was a Senior Research Assistant in Central Silk Board, Government of India, from December 1987 till 16.11.1993 in a permanent post and he joined the appellant institution with great ambition, which was shattered by the person, who manned the society. It https://www.mhc.tn.gov.in/judis/ Page 3/8 W.A.No.35/2021 is contended that what has been sought for by the writ petitioner is his assets, which he would have earned in the normal course of employment, and but for the acts and deeds of the appellants, he could not earn them in the right time and suffered monetarily and emotionally and the same has been compensated by this Court vide order dated 23.08.2002 and the appellants should not be allowed to deny the lawful benefits to him. Thus, he prayed for dismissal of this appeal.
6. We have heard the submissions of either side and perused the materials before us.
7. Facts are not in dispute. Admittedly, the writ petitioner himself stated that he was out of employment from 23.08.2002 to 30.04.2007 and also fairly submitted that he was in employment from 01.05.2007 to 20.01.2011. This Court, in the order dated 23.08.2002 made W.P.No.1784 of 1996, while ordering his restatement with service benefits, denied him the benefit of backwages for the earlier period. However, the said order was stayed by the Division Bench of this Court on 30.10.2003, which was in force till the disposal of the writ appeal on 25.02.2010, after which he was reinstated on 16.12.2010. Had the order of the learned Single Judge been implemented, the writ petitioner ought to have been given all service and monetary benefits from 23.08.2002. https://www.mhc.tn.gov.in/judis/ Page 4/8 W.A.No.35/2021 Since the appellants failed to succeed in the writ appeal, they cannot take advantage over the interim order granted during the pendency of the appeal.
8. A Division Bench of this Court in S.Sivaraj V. The Managing Director, Tamil Nadu Forest Plantation Corporation Limited, 2007 (5) CTC 579, held as follows :
"9. In fact the Supreme Court has considered the entitlement of an employee for backwages when the order of dismissal is set aside in the decision in Banshi Dhar V. State of Rajasthan and another, 2007 (1) SCC 324, wherein the Supreme Court observed that no hard and fast rule can be laid down in regard to the grant of backwages and each case has to be determined on its own facts. In the decision in Muir Mills Unit of NTC (U.P.) Ltd. v. Swayam Prakash Srivastava and another, 2007 (1) SCC 491, the Supreme Court has reiterated the same law by holding that the payment of full backwages is not a natural consequence of setting aside an order of termination of services.
10. It is not a rule of thumb that in every case where reinstatement is ordered, the payment of backwages is a natural consequence. It depends on the facts of each case. On the facts and circumstances of this case, we are of the considered view that the termination which was set aside by this Court is purely on the ground of procedural irregularity and such order will not confer an automatic right for the appellant to draw backwages."
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9. While there is no quarrel qua the above said preposition, it is apt to refer to the judgment in P.Soundararajan V. The Managing Director, SIPCOT Limited, Chennai, 2017 SCC OnLine Mad 15449, wherein, a co-ordinate Bench of this Court dealt with the issue of not granting backwages to the employee, who was punished departmentally for the conviction suffered before the trial Court, but acquitted by this Court in a revision petition. Applying the ration laid down by the Supreme Court in O.P.Gupta V. Union of India, (1987) 4 SCC 328, that while ordering reinstatement, it is necessary to make a specific order regarding the pay and allowances to be paid to the individual for the period of absence from duty, the Division Bench ordered 25% backwages to the employee therein for the period of his non-employment.
10. Following the P.Soundararajan's case, we are of the view that there is no error in the order passed by the learned Single Judge in ordering backwages along with interest at the rate of 9% per annum to the writ petitioner for the period from 23.08.2002 to 30.04.2007, during which time, he was out of employment.
11. The above view is taken for the simple reason that the writ petitioner, who is a Doctorate cannot be mulcted with the liability of his https://www.mhc.tn.gov.in/judis/ Page 6/8 W.A.No.35/2021 non-employment with the appellants during the relevant period, for which, the relief is sought for.
12. Accordingly, the order of the learned Single Judge is confirmed and the writ Appeal is dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition is closed.
(P.S.N., J.) (K.R., J.)
27.07.2021
Index : Yes / No
Internet: Yes
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W.A.No.35/2021
PUSHPA SATHYANARAYANA, J.
AND
KRISHNAN RAMASAMY, J.
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W.A.No.35 of 2021
27.07.2021
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