Allahabad High Court
R.P. Garg vs I.O.C.L. And 3 Ors. on 30 October, 2017
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 28 Case :- WRIT - A No. - 39595 of 2016 Petitioner :- R.P. Garg Respondent :- I.O.C.L. And 3 Ors. Counsel for Petitioner :- Gopal Misra Counsel for Respondent :- Ashish Mohan Srivastava,S.C. Hon'ble Saumitra Dayal Singh,J.
Heard Sri Gopal Misra, learned counsel for the petitioner Sri Navin Sinha learned senior advocate assisted by Sri Ashish Mohan Srivastava learned counsel for the respondents.
This writ petition has been filed for the following (main) and other relief:
(i) a writ, order or direction, directing the respondents to fix the designation and pay of the petitioner, considering the performance rating of the preceding years as outstanding right from his joining in the year 1986 and his back-wages may be computed accordingly including other various allowances, annual bonus/ex gratia/PIL/LTC etc. admissible to an employee of the Corporation as per the own letter of the Corporation dated 15.10.1999 (Annexure No. 20 to the writ petition) along with the interest on the remaining amount.
(ii) a writ, order or direction, directing the respondents to compute the back wages for the period from 24.06.1999 to 15.07.2003 and pay the amount after deducting the salary drawn by petitioner during that period.
(iii) a writ, order or direction, directing the respondents not to treat the petitioner absent from 18.03.2016 to 17.05.2016 and the back-wages may be computed accordingly."
In so far as the relief has been sought in the writ petition with regard to transfer, the petitioner has filed another writ petition which is also listed with this petition. That matter would be dealt with separately.
In so far as the first relief sought in the present petition is concerned, it is noted that the petitioner was appointed on the post of Electrician Grade-III on probation on 21.4.1986 and that he joined on that post at the Indian Oil Corporation (the management in short), at Mathura. The management treating the petitioner to be a probationer dispensed with his services without conducting any domestic inquiry. This led to the petitioner filing writ petition No. 8502 of 1989.
It was allowed by a learned single judge of this Court by a judgment dated 1.12.2006. The termination was set aside. In the operating part of the judgment the following relief was granted to the petitioner:-
"In view of the above discussion, the impugned termination order dated 26th April 1989 (Annexure 3 to the writ petition) is quashed. However, the respondents are at liberty to pass a fresh order if they so desire in accordance with law.
The writ petition is allowed. No order as to costs."
Both the petitioners as also the management challenged the aforesaid judgment in Special Appeal. The management's Special Appeal No. 19 of 2007 was directed against the relief granted by the learned single judge by which the termination order had been set aside. The petitioner, on the other hand, felt aggrieved because no consequential relief was granted by the Single Judge. Accordingly, he filed Special Appeal No. 508 of 2007 wherein the following relief was sought:-
"That the relief sought by way of present special appeal is that, the Hon'ble Court may be pleased to allow this present special appeal and set aside the impugned judgment and order dated 1/12/2006 passed by Hon'ble Mr. Justice Pankaj Mittal as far as it relates to again giving the liberty to the respondent corporation for passing any fresh order in accordance with the law and it is further prayed that this Hon'ble Court may be pleased to grant full back wages to the appellant with all the consequential benefits (direct and indirect) and promotion along with 18% per annum till the date of actual payment."
The aforesaid two Special Appeals came to be decided by separate judgments. While the Special Appeal filed by the management being Special Appeal No. 19 of 2007 was dismissed, the following observations were made therein:
"As such, we are of the opinion that even though the reasons given by the learned Single Judge for treating the writ petitioner as a permanent employee may be different from one which has been given hereinabove, but in the facts of the present case, the writ petitioner could not be treated as a probationer after having put in more than two years of service, and his service could not have been terminated without assigning any reasons, treating him to be a probationer, as has been done by the order dated 26.4.1989.
As we have already held, in the facts of the present case and in terms of the model Standing Orders, the writ petitioner had automatically been confirmed, and would be treated as permanent workman on the completion of three months service in the year 1986 itself and thus, the termination simplicitor, treating the writ petitioner to be a probationer, vide order dated 26.4.1989 has rightly been quashed by the learned Single Judge, which does not call for interference in this appeal.' The special appeal stands dismissed. No order as to costs."
(emphasis supplied) At the same time, by another judgment of the same date, in Special Appeal No. 508 of 2007, the following relief was granted to the petitioner.
"As regards the other prayer for grant of full back wages to the appellant, we are of the opinion that once the termination order has been quashed, the consequences will follow and the appellant would be entitled to all such benefits, for which he may be entitled to, in accordance with law.
This appeal is accordingly disposed of. No order as to costs."
The aforesaid judgements of the division bench became final as the Special Leave Petition filed by the management against the division bench decisions of this Court were dismissed. Still, the petitioner was neither reinstated nor any amount was paid to him towards back-wages etc. This led to the petitioner filing second writ petition being Writ-A No. 41673 of 2015. In that writ petition, the petitioner appears to have raised two pleas, one in respect of his reinstatement which he claimed, he was entitled to at Mathura and not Vadodara where the management proposed to reinstate him and the other in respect of payment of back wages. By judgement dated 3.3.2016, in respect of relief of reinstatement, the writ petition was allowed in entirety and it was held, though the petitioner's post was transferable, in view of the earlier judgment of this Court, the relief of reinstatement should have been granted to the petitioner at Mathura itself and he could not have been reinstated-on-transfer, at another place. To that extent, there is no dispute in the present petition.
As to the other relief sought by the petitioner, learned single judge made some discussion as to the entitlement to payment of back wages, inasmuch as it was noted both that the petitioner was entitled to be paid back wages as also it was noticed that the petitioner had been issued a letter by the management to disclose whether he had been gainfully employed during the period - from date of his termination till judgment passed by this Court directing his reinstatement. Petitioner also appears to have furnished his reply which was also noted in the aforesaid judgment. In that reply, he specifically stated that he was unemployed for the entire period except for a period June/July 1999 to July 2003 (4 years). Thus, the petitioner claimed he remained unemployed for a period of 23 years in all. In this regard it was observed as below:-
18. "It goes without saying that petitioner will be entitled to back wages/benefits, to which he has been held entitled under the orders of this Court, as affirmed by the Hon'ble Supreme Court with dismissal of Special Leave to Appeal, forthwith. Respondents, however, shall have a liberty to act in terms of the orders passed by this Court in Special Appeal.
19. In the peculiar facts and circumstances of the case, as the action of the respondent corporation has been found to be lacking in bonafide, a cost of Rs.10,000/- is imposed upon the respondent corporation."
(emphasis supplied) However, it appears, neither the learned single judge even on this second occasion, recorded any independent or further finding as to the exact entitlement of the petitioner to receive back wages nor any amount or percentage of back wages payable was specified to be paid to the petitioner, either in view of the earlier division bench pronouncement or by the subsequent judgement of the single judge.
It is also not in dispute that consequent to the decision dated 3.3.2016 in the Writ-A No. 41673 of 2015, he was allowed to join at Mathura on 18.5.2016. He was thereafter transferred to Brijwasan, on 26.9.2016 but was neither paid his back wages nor he was granted other consequential benefits to which he claimed he had been held entitled to by earlier judgements of this Court referred to above.
Leaving the issue of transfer apart, the petitioner appears to be aggrieved by the fact that he has neither been assigned work nor paid wages commensurate to the status he claims would have been entitled to had he not been terminated in the year 1989. This claim was based on the basis of his performance rating for the period 1986-1889 when he worked in the respondent-corporation as a probationer/employee. He also claims, had he been in continuous employment, he would have been entitled to various allowances, bonus, ex gratia payment, performance incentives, leave travel concession etc, which all he has claimed be granted to him in view of the earlier adjudication made by this Court.
Learned counsel for the petitioner contends that a positive direction has been issued by the division bench in the judgment dated 17.9.2014 in Special Appeal No. 508 of 2007 whereby not only the termination order stood quashed but also consequently the petitioner was held entitled to 'all benefits'. According to him, the term 'all benefits' used in the aforesaid judgment includes the relief sought in the present petition being re-designation of his post, payment of commensurate pay and back wages and other relief referred to above.
He submits that the office order dated 1.7.2016 designating the petitioner as Senior Engineer Assistant (Electrical) in Salary Grade-V is wholly erroneous inasmuch as the said designation is only new name under the revised nomenclature given to the post of Electrician Grade-III. He contends, in view of the direction issued by the division bench, noted above he ought to have been reinstated on the post to which he would have been promoted had he not been wrongly dealt with by the corporation, initially.
Refuting the aforesaid submissions, learned senior counsel appearing for the respondent-corporation submits that first Writ Petition no. 8502 of 1989 filed by the petitioner was allowed without grant of any consequential relief to the petitioner. Thus, the only relief granted in that writ petition, as noted above was that the termination order was set aside. Neither the petitioner became automatically entitled to reinstatement nor he became automatically entitled to receive any amount by way of back wages by virtue of that judgment dated 1.3.2006.
He then relies on the judgment of the division bench in Special Appeal No. 508 of 2007 wherein for the first time the Court made any observations with respect to the grant of back wages. Again, even while making those observations the Court did not grant any relief as claimed in the Special Appeal no. 508 of 2007. In that regard, he referred to the prayer clause in that Special Appeal (quoted above). He would submit the division bench has not granted any relief as prayed and has not granted relief in a manner such that it may be said that the petitioner was held entitled to the relief being claimed in this petition.
According to him, all that the division bench provided for in addition to the relief granted by the learned the single judge was an observation made therein that the petitioner would be entitled to claim consequential relief; in accordance with law without specifying either the rate or the extent of back wages or the amount that the petitioner may be paid by way of such relief. The Supreme Court only dismissed the Special Leave Petitions against the judgements of the division bench.
Then in respect of the judgment of the learned single judge, in the second writ petition filed by the writ petitioner he submits, no independent or further direction was issued either to pay any specific amount or any specific percentage of the back wages or the position/post to be given to the petitioner or other emoluments and entitlements to be made available to the petitioner. Thus, he would submit, the learned Single Judge did not grant any further relief over and above that which had been granted by the division bench on 17.9.2014 in Special Appeal No. 508 of 2007.
While it cannot be disputed that the petitioner's reinstatement attained finality and also in view of the directions issued by the division bench as noted above, the petitioner may have become entitled to claim back wages, however, in the first place it cannot be said that the petitioner was, therefore, made entitled to receive either full back wages or to promotion or any emoluments and entitlements. Such claims could not be allowed automatically or necessarily upon reinstatement of the petitioner, especially as the petitioner worked for only three years and remained dis-engaged for almost 20 years thereafter. Matters of promotion etc. are, in any case, linked with performance over years of service and successive annual appraisals besides comparative consideration of other similar claims. These cannot be granted merely for the asking because relief of reinstatement has been granted. For a relief of this nature to be granted, specific facts would have to be pleaded, issue/s framed and finding/s of fact recorded before such relief may be granted by a fact-finding authority such as the Labour Court or Industrial Tribunal. In any case, the issue of grant of such a relief would necessarily, by very nature of things fall outside the scope of extraordinary proceedings under Article 226 of the Constitution of India.
In so far as, it has been held by the learned single judge in Writ-A No. 41673 of 2015 decided on 3.3.2016 that the petitioner would be entitled to back wages, that relief is not independent of or in addition to the relief granted by the division bench. The said direction cannot be read independent of the direction issued by the division bench noted above. Plainly, the learned single judge had only held that the petitioner is entitled to reinstatement at Mathura. As to other relief claimed by the petitioner, though the learned single judge did make discussion on the issue, but ultimately, only provided that the petitioner is entitled to back wages as granted by the division bench.
Thus it is necessary to examine the relief granted by the division bench and whether the petitioner can claim the relief of full back wages, promotion, incentives, leave travel concession etc. as having been granted to him by the division bench.
Before I examine the issue further, it cannot be lost sight of that petitioner admittedly being a workman (as observed by the division bench itself), he should have approached the Labour Court or Industrial Tribunal and that authority would have also adjudicated the reference and determined as a fact, the entitlement of the petitioner to receive back wages or a portion of it, by way of relief, after consideration of necessary pleadings and evidence. However, the petitioner had approached this Court directly seeking a writ of Certiorari against the order of termination. The Supreme Court, in the case of Managing Director, U.P. Warehousing Corpn. v. Vijay Narayan Vajpayee reported in (1980) 3 SCC 459 held as below:
"17. Further contention of the learned Counsel for the appellant is that even if the dismissal of the respondent was wrongful, the High Court could only quash the same, but it could not in the exercise of its certiorari jurisdiction under Article 226 of the Constitution give the further direction that the employee should be reinstated in service with full back wages. It is maintained that in giving this further direction, the High Court had overleaped the bounds of its jurisdiction.
18. There appears to be force in this contention. It must be remembered 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 view for those of the inferior tribunal. In other words, the offending order of the impugned illegal proceeding is quashed and put out of the way as one which should not be used to the detriment of the writ petitioner. Thus, in matters of employment, while exercising its supervisory jurisdiction under Article 226 of the Constitution, over the orders and quasi-judicial proceeding of an administrative authority -- not being a proceeding under the Industria1/Labour Law before an Industria1/Labour Tribunal -- culminating in dismissal of the employee, the High Court should ordinarily, in the event of the dismissal being found illegal, simply quash the same and should not further give a positive direction for payment to the employee full back wages (although as a consequence of the annulment of the dismissal, the position as it obtained immediately before the dismissal is restored); such peculiar powers can properly be exercised in a case where the impugned adjudication or award has been given by an Industrial Tribunal or Labour Court. The instant case is not one under Industria1/ Labour Law. The respondent employee never raised an industrial dispute, nor invoked the jurisdiction of the Labour Court or the Industrial Tribunal. He directly moved the High Court for the exercise of its special jurisdiction under Article 226 of the Constitution for challenging the order of dismissal primarily on the ground that it was violative of the principles of natural justice which required that his public employment should not be terminated without giving him a due opportunity to defend himself and to rebut the charges against him. Furthermore, whether a workman or employee of a statutory authority 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 the termination of his employment the workman/ employee was gainfully employed elsewhere, that is one of the important factors to be considered in determining whether or not the reinstatement should be with full back wages and with continuity of employment. For these twofold reasons, we are of opinion that the High Court was in error in directing payment to the employee full back wages.
19. For the foregoing reasons while upholding the judgment of the High Court with regard to the quashing of the order of dismissal of the respondent on the ground of it being invalid, we delete the direction for payment to the respondent full back wages. Excepting this modification, the appeal is dismissed. However, in the circumstances, the appellant-Corporation shall pay the costs of the respondent in this Court".
(emphasis supplied) Now, coming to the direction issued in Special Appeal 508 of 2007 it is noticed, the division bench had qualified its direction to pay to the petitioner back wages- the petitioner would be entitled to such back wages (i) for which he may be entitled and (ii) in accordance with the law. Once the division bench itself provided that such back wages be paid to the petitioner to which he may be 'entitled', it had clearly signified non-determination of the same by it. In other words, the division bench had left it open to determine the entitlement of back wages being claimed by the petitioner. Thus, had there been any standing order, rule or regulation of service providing for payment of back wages in such cases, the petitioner could have claimed thereunder. Other than that, in view of the other qualification placed by the division bench to pay the back wages 'in accordance with law' the petitioner could have claimed back wages only by seeking reference of an industrial dispute for that limited purpose. Only upon adjudication of such a dispute that the petitioner could have become entitled to receive any amount by way of back wages or by way of other relief sought in the present petition. Or, if at all, a similar claim made in Special Appeal no 508 of 2007 having been not granted, it was for the petitioner to challenge that judgment and claim that relief. That the petitioner clearly did not do.
Thus, neither there is a direction of the division bench granting to the petitioner any of the relief being claimed by him nor he appealed against the decision of the division bench to be granted the relief now claimed by him though specific relief sought by him in the Special Appeal 508 of 2007 had not been granted and the petitioner also did not approach the appropriate government under the Industrial Disputes Act to seek reference-to be granted appropriate relief in view of his termination having been set aside and relief of reinstatement having been granted.
Similarly, relief of reinstatement was granted by the division bench without any further finding or further relief. Clearly and necessarily, in the first place, it implied the restoration of the petitioner on the post from which he had been disengaged or terminated. It cannot be interpreted to being given a higher position in absence of any pleading or issue being framed or adjudication being made or finding being recorded or specific direction being issued to that effect. For such relief also, petitioner could have, applied for appropriate reference under the Industrial Disputes Act.
Thus, by virtue of the fact that the petitioner had only been granted relief of reinstatement, he could not have claimed promotional post in the process of giving effect to the judgements of this Court as no such direction was issued. For the petitioner to be given the relief being claimed by him in this writ petition, there must be shown to exist specific direction to that effect as the relief claimed now does not flow out from direction to reinstate the petitioner with further entitlement to claim back wages. Therefore, the claim for higher status/post made by the petitioner is rejected.
Even if the claim of the petitioner was to be considered on merits, it is undisputed to the petitioner that out of the 27 years till he was reinstated after his termination, he pleaded/claimed to have remained out of job 23 years. Learned counsel for the petitioner has in this regard relied on two judgments of the Supreme Court in the case of Pradeep Kumar Vs. Union of India reported in (2012) 13 SCC 182, he submits that persons who have been wrongly terminated is entitled to full back wages. To the same effect, he relies on the Supreme Court judgment in the case of Md. Zamil Ahmed Vs. State of Bihar & Ors Civil Appeal No. 4815 of 2016 decided on 5.5.2016. Both judgements relied upon by learned counsel for the petitioner arose under service jurisprudence pertaining to government servants.
In respect of industrial disputes which this case represents, recently, the Supreme Court in the case of The General Secretary, Coal Washeries Workers Union Dhanbad Vs. Employers in relation to the Management of Dugda Washery of M/s BCCL, 2016 SCC Online SC 987 stated:-
"5. Considering the arguments of both sides, in our opinion, the Division Bench was right in observing that, in the facts of the present case, an order of reinstatement must be eschewed, being inequitable. The workmen, however, must be compensated in lieu of reinstatement. Applying the principle underlying the decisions of this Court in Ruby General Insurance Co. Ltd. V. P.P. Chopra and the recent case of Delhi International Airport (P) Ltd. v. Union of India, in our considered opinion, the interest of justice would be met by enhancing the amount of compensation in lieu of reinstatement/absorption and regularisation quantified at Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand) to each workman. For, the workmen have already received wages from October 2004 to January 2012 in terms of the order under Section 17(B) of the Industrial Disputes Act, 1947 without any work assigned to them. The respondent paid minimum wages to the concerned workmen during the relevant period as the workmen were not able to produce any document in support of their last drawn wages.
6. This lump sum compensation amount of Rs. 1,50,000/- to each workmen would be in full and final settlement of all the claims of the concerned workmen and substitute the order passed by the Tribunal to that extent, without any further inquiry as to whether the concerned workmen was gainfully employed during the relevant period or not."
It also cannot be lost sight of that the petitioner did not work for the management for a single day for almost 23 years. Also, on the other hand, he has been paid wages for the period of 4 years in the interregnum when he worked. Still, admittedly, he has been paid Rs. 85,00,000/- (approximately) which according to the management is the entire (100%) back wages payable together with regular annual increments and has also been reinstated in service. This amount has been computed at different rates for different periods beginning from May 1989 to March 2016. The said computation has been annexed to the counter affidavit filed by the respondents. It has not been challenged.
Thus, in the first place, the amount of payment of Rs. 85,00,000/- together with reinstatement appears to be much more than sufficient to meet the ends of justice to cover for compensation in lieu of all other relief sought by the petitioner. Also, in view of the decision of the Supreme Court in the case of The General Secretary, Coal Washeries Workers Union Dhanbad (supra) and other decisions holding that line the claim as made by the petitioner after what has already been granted to him, is excessive. Under the Industrial Disputes Act, an award for 100% back wages would have been difficult to sustain, in view of the facts noted above.
However, in the instant case, since the management has already paid Rs. 85,00,000/- to the petitioner no amount is to be recovered from the petitioner under this order. At the same time in view of such handsome payment having been made, the petitioner is not entitled to anything more either by way of relief in this petition or by way of liberty to now seek reference under the industrial laws etc. especially when he has not worked a single day out for 23 years and he would be close to his superannuation age.
As to the contents of the letter dated 15.10.1999 wherein it has been observed that the claim of increment for the post period seniority etc. would be decided after final order by the writ Court, it did not create any right in favour of the petitioner to be granted this benefit upon writ petition being allowed. All that this Court directed and the management provided for was to consider his claim after a point in time. In view of the discussion made and conclusions drawn above, no further adjudication is required to be made in this regard. The petitioner has been paid more than his fair dues.
The writ petition lacks merit and is dismissed. No order as to costs.
Order Date :- 30.10.2017 Mini