Allahabad High Court
Union Of India And 3 Others vs Central Administrative Tribunal Bench ... on 16 December, 2019
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - A No. - 20430 of 2019 Petitioner :- Union Of India And 3 Others Respondent :- Central Administrative Tribunal Bench At Allahabad And Another Counsel for Petitioner :- Sabhajeet Singh,Gyan Prakash(Senior Adv.) Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra, J.
1. Heard Sri Arvind Kumar Goswami, Advocate holding brief of Sri Sabhajeet Singh, learned counsel for petitioners.
2. This writ petition under Article 226 of Constitution of India has come up against judgment and order dated 08.10.2018 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad (hereinafter referred to as "Tribunal") in Original Application (hereinafter referred to as "O.A.") No.330/00695 of 2008, whereby Tribunal has allowed O. A. to the extent it has directed petitioner to provide all monetary benefits including back wages to applicant-respondent-2 Hari Shankar Mishra w.e.f. 29.04.2004 since when he had been granted notional seniority on the promotion post i.e. from the date when his juniors were promoted.
3. Initially, on the ground that out of five ACR entries, one ACR entry was adverse, juniors to applicant-respondent-2 were given promotion, despite the fact that Supreme Court has held that average entry is not an adverse entry. But, consequently when applicant-respondent-2 made representation, petitioners on realizing their mistake, granted promotion to him on notional basis from the date on which juniors to him were granted promotion, but denied him salary for the period when promotion was granted to his juniors i.e. w.e.f. 29.04.2004.
4. Tribunal has held that once it is evident that when an employee was denied promotion by Employer for the fault not committed by employee but by Employer itself, denial of salary for the period for which promotion was denied to him and then subsequently rectified by giving alleged notional promotion on the post, amounts to allowing Employer to take advantage of its own wrong, which is illegal and cannot be allowed, hence, employee is entitled for full salary from the date he has been allowed promotion.
5. In P.S. Mahal Vs. Union of India, AIR 1984 SC 1291, while deciding dispute pertaining to seniority, Apex Court directed employees to be treated as deemed promoted from retrospective date and also directed for payment of salary of higher post for the past period. However, in Paluru Ramkrishnajah and others Vs. Union of India & another, 1989 (2) SCC 541, despite allowing promotion with back date, 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 Apex Court judgment dated 2.2.1981 in Civil Appeal No. 441 of 1981 wherein back wages were denied despite retrospective promotion and a Special Leave Petition Civil No. 5987-92 of 1986 filed by the Government of India against judgment of Hon'ble Madhya Pradesh High Court, was dismissed on 28.7.1986, therefore, Court took view that same relief should be granted to appellant in Paluru Ramkrishnajah (Supra) also.
6. Subsequently relying on P.S. Mahal (supra), arrears of salary on account of back dated promotions was claimed but aforesaid dictum was not followed in Virender Kumar Vs. Avinash Chadha and Ors., AIR 1991 SC 958 and for denying arrears of salary to the employees, who were allowed promotion from earlier date, Apex Court gave 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 allowing promotion from an earlier date."
7. In Vasant Rao Roman Vs. Union of India & others, 1993 (Suppl.) (2) SCC 324 arrears of salary was denied to employee though it was held that denial of promotion on higher post on account of wrong fixation of seniority was illegal. Apex Court held that principle of "no work, no pay" would have no application to said case, since 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 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 department to benefit itself with qualification of 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, 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'.
8. In Surjit Ghosh Vs. Chairman & Managing Director, United Commercial Bank and Ors. AIR 1995 SC 1053, as a result of disciplinary proceedings, the employee was punished but said order of punishment was passed by an authority to whom an appeal otherwise would lie under the rules and thereby the employee was denied right of appeal though conferred under the rules. Apex Court held such exercise of power by higher authority illegal but while considering question as to what consequential orders should be passed, in the facts of the case, noticed that proceedings against employee were pending since 1982 and almost for 13 years the employee was out of employment. He also at one 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 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 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 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.
9. In Smt. Sudha Srivastava Vs. Comptroller and auditor General of India, 1996 (1) SCC 63 following K.V. Jankiraman, AIR 1991 SC 2010, Apex Court allowed arrears of salary to the legal heirs of deceased employee on the ground that he was denied promotion on account of criminal proceedings, wherein he was honourably acquitted.
10. In State of Haryana and Ors. Vs. O.P. Gupta and others, 1996 (7) SCC 533=AIR 1996 SC 2936 as a result of redetermination of seniority, pursuant to direction of Apex Court, promotions were allowed retrospectively but arrears denied. Apex Court noted that incumbents, who approached the Court claiming arrears of salary though contended that they were ready but were not allowed to work on 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 seniority list which was ultimately decided by Apex Court directing for redetermination of seniority and therefore, contention of employees that they were ready to work was contrary to record. It was also held where a seniority list has to be redrawn and promotions have to be made and until that exercise is undertaken, it was not open to employees concerned to claim that they were ready to work on higher post and thus 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.
11. In J.N. Srivastava Vs. Union of India and another, 1998 (9) SCC 559, 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 Tribunal, which held that voluntary retirement having been given effect to and employee also having handed over charge, no relief can be granted to him. Apex Court reversed judgment of Tribunal and held that before communication of acceptance of letter of voluntary retirement, it was open to employee to withdraw the same. Further observing that employee was denied work though he was ready, it was held that he is also entitled for benefit of salary for the period he was denied work by Employer and principle of "no work, no pay" would not apply.
12. A Constitution Bench considered application of "no work, no pay" in the matter of employees of 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 issue pertaining to strike is dealt with by statute or contract between employer and employee recognizing right of employees to go on strike, in such case in order to get entitlement for wages for the period of strike, it has to be both legal and justified.
13. 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 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 Hon'ble Single Judge setting aside order of transfer with all consequential benefits and salary for the period he was not in the office. Apex Court, in the appeal of Bank, observed that in such a case where an employee, who has not discharged any duty by disobeying 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 judgment of High Court, Apex Court left it open to the Bank to deal with the period of absence in accordance with rules of Bank.
14. In Food Corporation of India Vs. S.N. Nagarkar AIR 2002 SC 808, notional promotion without arrears was allowed by employer relying on judgment of Apex Court in O.P. Gupta (supra) and Paluru Ramkrishnajah (supra). Apex Court found that notional promotion was allowed pursuant to order dated 6.5.1994 passed by 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 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 court and if it is satisfied that employee was not considered for promotion to the promotional post for no fault of him but on account of fault of 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.
15. In A.K. Soumini v. State Bank of Travancore and Anr. 2003(7) SCC 238= AIR 2003 SC 3137, Court upheld denial of arrears on the ground that as a matter of fact, employee was disentitled for promotion under the promotion policy but taking into account pendency of appeal before the Court for a considerable time on account whereof employee could not appear in subsequent tests, 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, 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 6 1/2 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 farfetched 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."
16. In Punjab National Bank v. Virender Kumar Goel, AIR 2004 SC 3988, 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, arrears was allowed. Apex Court held that principle of "no work, no pay" would not apply in such a case since 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 employees to work and breached contract, it did not lie in its mouth to deny arrears of salary to the employees.
17. In General Manager, Haryana Roadways Vs. Rudhan Singh, AIR 2005 SC 3966, 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 25F 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 Industrial Tribunal-cum-Labour Court holding termination of employee as illegal, the Court and 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. A lot of factors have to be taken into consideration which include how quick the employee was in taking legal action regarding his grievance against action of employer, delay if any in litigation and whether employee or any other person is responsible therefor. Moreover, factors like manner and method of selection and appointment, namely proper advertisement, inviting applications from 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 balance of decision regarding wages. Moreover, length of service rendered by employee, 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 than a short term or interrupted daily wage employment though has completed 240 days in a calendar year. The Court also held that a person appointed on daily wage basis gets 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 employee was gainfully employed during the period of unemployment was also held to be a relevant factor.
18. In Srikantha S.M. Vs. Bharath Earth Movers Ltd. (2005) 8 SCC 314, Court allowed arrears of salary in the case where employee was denied work by not permitting him to withdraw his resignation, which was held to be illegal and following J.N. Srivastava (Supra) and Shambhu Murari Sinha Vs. Project and Development India Ltd., 2002(3) SCC 437, the Court held that the employee is entitled for full salary for the said period and observed as under:
"We must frankly admit that we are unable to uphold the contention of the respondent Company. A similar situation had arisen in J.N. Sirvastava and a similar argument was advanced by the employer, the Court, however, negatived the argument observing that when the workman was willing to work but the employer did not allow him to work, it would not be open to the employer to deny monetary benefits to the workman who was not permitted to discharge his duties. Accordingly, the benefits were granted to him. In Shambhu Murari Sinha II also, this Court held that since the relationship of employer and employee continued till the employee attained the age of superannuation he would be entitled to "full salary and allowances" of the entire period he was kept out of service. In Balram Gupta in spite of specific provision precluding the government servant from withdrawing notice of retirement, this Court granted all consequential benefits to him. The appellant is, therefore, entitled to salary and other benefits."
19. In Baldev Singh v. Union of India and Ors., AIR 2006 SC 531, employee was convicted in a criminal case whereupon he was dismissed from service w.e.f. 18.7.1990. However, in appeal he was acquitted vide High Court judgment dated 26.3.1992 and was released from jail on 4.4.1992 whereupon he claimed that he reported for duty on 5.4.1992 but the said fact was denied by Union of India and it was pointed out that after acquittal, order for his reinstatement was passed and he was repeatedly required to join his parent unit but he did not respond whereupon High Court held that he was not entitled for salary for the period he was not in service. Upholding the judgment, Apex Court held that employee was not in actual service for the period he was in custody and since he was terminated on the ground of his conviction, acquittal will not automatically give benefit of continuous service and in any case, since he has not rendered any service, is not entitled for arrears of salary.
20. The question of arrears of salary has been dealt with in detail recently in U.P. State Brassware Corporation Ltd. and Anr. v. Udai Narain Pandey, AIR 2006 SC 586 and Apex Court has observed that earlier direction to pay full back wages on a declaration that order of termination was invalid used to be usual result but now, with passage of time, a pragmatic view of the matter is being taken by Court realizing that an industry may not be compelled to pay to 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, employer would be compelled to go back to a situation which prevailed many years ago when 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, 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 paras 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 Junctions 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."
21. We may also add one more aspect. Many a times, when an employee approaches Court challenging an order of retirement, dismissal or removal etc. in writ jurisdiction and prays for an interim relief, while entertaining writ petition, Court normally does 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 well established principle, applicable for grant of interim injunction that not only a prima facie case must be shown but petitioner has to show balance of convenience and irreparable loss, lying in his favour. In the aforesaid kind of cases, since 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 employee has approached the Court. Pendency of 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 impugned order is found to be illegal, unless there are certain other factors, a few whereof have already been enumerated hereinabove, 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 other side for passing an illegal order and, thereby, depriving 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 employment is not terminated in accordance with law or in accordance with terms of his contract.
22. In Ram Swarup Srivastava Vs. Allahabad District Cooperative Bank Allahabad & Ors., 2005 (2) ESC 1215 a Division Bench of this Court while considering entitlement of arrears of salary to an employee, who was wrongfully retired before attaining age of superannuation, held that he is entitled to salary of the said period for which he was not allowed to work and was wrongly retired. It was noticed that employee approached the Court before his retirement immediately after premature retirement, forced upon him by the employer but since no interim order was granted, he could not render any service and therefore, he is entitled to salary of the said period.
23. Thus 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 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."
24. 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 employer to permit him to work is of utmost importance and this includes whether employee took steps for preventing employer from retiring him premature wrongfully well in time. 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 Anr. v. Jaswant Singh and Anr., 2007 (1) ESC 40 (SC) following judgment of 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 High Court allowed the writ petition with benefit of arrears of salary etc. The judgment of Hon'ble Single Judge was confirmed in special appeal whereagainst U.P. Jal Nigam approached Apex Court and reversing judgment of High Court, it was held that employees accepted 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 provisions of Act well in time, the employer could have taken appropriate steps to raise funds to meet liability in case he looses the matter in the Court or could have taken such other remedial measures, as necessary, but since 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.
25. In Sharda Singh Vs. State of U.P. and Ors., JT 2009 (5) SC 487, referring to an earlier decision in State of West Bengal Vs. Bata Krishna Burman, AIR 1970 SC 156, Court observed:
"..a Government servant exonerated of the charges framed against him cannot be deprived of any portion of his pay for the period of suspension. Then again there could be a rule or regulation which may provide, that, during the period of suspension, an employee would be entitled only for suspension allowance, dehors the ultimate result of the enquiry proceedings."
26. In Gujarat Agricultural University Vs. All Gujarat Kamdar Karmachari Union, 2009 (15) SCC 335, doctrine of "no work, no pay" has been discussed in a bit detail. Court said :
"One of the principles well known in the matters of service is that if a person has worked, he must be paid and if he has not worked, he should not be paid. This is expressed in doctrine, `no work, no pay'. Another oft-repeated principle in service jurisprudence is that if an employer has wrongly denied an employee his due then in that case he should be given full monetary benefits."
27. The Court then said that none of these principles is absolute nor can these principles be applied as a rule of thumb.
28. In Shiv Nandan Mahto Vs. State of Bihar & Ors. 2011(11)SCC 626, Court set aside decision of High Court denying of salary, on account of suspension, by observing :
"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."
29. In respect of principle of grant of backwages, in Chairman-Cum-M.D., Coal India Ltd. and Ors. Vs. Ananta Saha and Ors., JT 2011 (4) SC 252, Court said:
"....even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is re-instated, it would not automatically make him entitled for back wages as entitlement to get back wages is independent of re-instatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic."
30. In making the above observation, the Court relied on its earlier decision in U.P.S.R.T.C. Vs. Mitthu Singh AIR 2006 SCC 3018; Secretary, Akola Taluka Education Society and Anr. Vs. Shivaji and Ors., (2007) 9 SCC 564; and Managing Director, Balasaheb Desai Sahakari S.K. Limited Vs. Kashinath Ganapati Kambale (2009) 2 SCC 288).
31. Thus, while considering the question of arrears of salary, where employee could not work for an act of employer, which is found to be illegal or unauthorized, direction for payment of full salary or arrears of salary is not automatic or mechanical but has to be considered in the light of the numerous attending circumstances and the facts of the case.
32. We have examined the matter in the light of the aforesaid exposition of law. This Court finds that employee was denied promotion on the date from which juniors to him were promoted, not for his fault but for the fault on part of employer. For that purpose, loss, if any, must be suffered by State, may be recovered from officer(s) concerned but petitioner cannot be made to suffer by denying him salary for the said period.
33. In taking the above view, we find ourselves supported by two Division Bench judgment of this Court in Ram Narain Singh Vs. State of U.P. & Ors, 2007 (4) AWC 3382 (All) and Brijendra Pakash Kulshrestha Vs. Director of Education, 2007(3) ADJ 1 (in which one of us was also a member) wherein applicability of "no work no pay" has been considered and has considered applicability of "no work no pay" and it has been held that an employer cannot deny salary to an employee, who is always willing and ready to work but was not allowed to do so by an act or omission directly attributable to employer.
34. In Bhanu Pratap Vs. Director, Ayurvedic and Unani Sewae, U.P. Lucknow & Ors., 2011 (11) ADJ 606 this Court said:
"9. This Court is of considered view that dismissal of petitioner from service having been found wholly illegal, and it is also having been seen that he was denied work on the post in question by employer in a wholly illegal manner, petitioner should be given relief of reinstatement with all consequential benefits including arrears of salary. This would be in consonance with the principle that an employee has 'no right to work' but only right to claim salary. In absence of anything to show that employee himself was unwilling to work, principle of "No Work No Pay' ought not to be applied in such a case. Such a principle in a case like this, if applied, would amount to confer a premium upon employer to enjoy benefit of a fault of his own. This would amount to allowing him (employer) to take advantage of his own wrong, which is not permissible in law particularly in a court of equity and justice. It is against all canons of justice."
35. Recently also similar issue has been considered in Deepali Gundu Surwase Vs Kranti Junior Adhyapak Mahavidyala (D.Ed.) and others, (2013) 10 SCC 324. Therein Court has observed:
"the very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. The family may have to borrow from relatives etc. to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires, relevant statutory provisions or principles of natural justice, entitles the employee to claim full back wages. If employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
36. The aforesaid view has been referred and followed more recently in Raj Kumar Vs Director of Education and others, 2016(6) SCC 541.
37. Learned counsel for petitioner submitted that backwages is not automatic and it depends upon facts and circumstances of each case and he has relied on judgment in Union of India Vs. K. V. Jankiraman (supra).
38. But therein Supreme Court has categorically stated that benefit of arrears may not flow automatically but will depend upon the circumstances of each case. In aforesaid authority it has been explained that reason of denial of promotion or alleged termination etc, if fault is attributable to the employer, employee will not suffer. Moreover, an employee cannot be compelled to suffer for something which is not attributable to him and at the same time Employer cannot be allowed to take advantage of its own wrong.
39. In view thereof, we do not find any illegality or perversity in the judgment passed by Tribunal, which is apparent on the face of record and we also do not find any reason warranting interference in the impugned judgment and order. Writ petition lacks merit.
40. Dismissed accordingly.
Order Date : 16.12.2019 Manish Himwan