Jharkhand High Court
The State Of Jharkhand Through The ... vs Rita Devi on 14 August, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No. 372 of 2023
1.The State of Jharkhand through the District Social Welfare Officer,
Giridih, PO & PS-Giridih, District-Giridih
2. The Deputy Commissioner, Giridih, PO & PS-Giridih, District-Giridih
3. The Child Development Planning Officer, Bagodar-cum-Saria, PO & PS-
Bagodar, District-Giridih
4. The District Social Welfare Officer, Giridih, PO & PS-Giridih, District-
Giridih ...... Appellants
Versus
Rita Devi, w/o Sri Rajesh Kumar Modi, R/o Dhawaiya, PO-Ghotia Paesera,
PS-Saria, District-Giridih .... ... Respondent
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN KUMAR RAI
For the Appellants : Mr. Manish Mishra, GP-V
For the Respondent : Mr. Yogesh Modi, Advocate
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Order No.13/Dated:14th August 2024 Prayer The present appeal under clause 10 of the Letters Patent is directed against the judgment dated 14th March 2023 passed in W.P(S) No.4478 of 2013 whereby and whereunder the learned Single Judge has allowed the writ petition by quashing and setting aside the impugned order dated 16th July 2013 whereby the selection of the petitioner as Anganwadi Sevika, Anganwadi Centre, Dhawaiya in the district of Giridih was cancelled with a further direction to compensate the writ petitioner for the period for which she was not allowed to discharge her duty as Anganwadi Sevika.
Factual Matrix
2. The brief facts of the case as per the pleadings made in the writ petition are that on 30th April 2013, an Aamsabha was convened in the Village-Dhawaiya for selection of Anganwadi Sevika in Anganwadi Centre, Dhawaiya, Giridih, in which the petitioner was finally selected and formal appointment letter was also issued vide memo no.186 dated 20 th May 2013.
3. Thereafter, District Social Welfare Officer issued a direction on 16th May 2013 declaring the selection of the respondent-petitioner as illegal and thereby, appointment of the petitioner was cancelled vide order dated 16th July 2013.
4. Being aggrieved, the respondent-petitioner approached this Court by filing a writ petition being W.P.(S) No.4478 of 2013 in which the learned Single Judge has quashed the order dated 16th July 2013 with a further direction to compensate the writ petitioner for the period for which she was not allowed to discharge her duty as Anganwadi Sevika.
5. It is evident from the factual aspect that in terms of the notice inviting application for the purpose of selection on the post of Anganwadi Sevika for the Anganwadi Centre, Dhawaiya in the Sub-Division-Bagodar, District-Giridih the petitioner along with the others were participated in the process of the selection of the aforesaid post.
6. The Aamsabha was convened on 30th April 2013 which was chaired by the Child Development Planning Officer along with the other members. The candidature of the writ petitioner along with the others have been considered. The petitioner has been considered to be a daughter-in-law of the said village and in view thereof the majority view of Aamsabha the candidature of the petitioner is found to be acceptable and, accordingly, she has been declared to be successful for the purpose of appointment of Anganwadi Sevika in the Anganwadi Centre, Dhawaiya.
7. Thereafter, the minutes of meeting was prepared which was sent to the Mukhiya of said village for concurrence but he has not done the same and thereafter, on the dictate of the higher authority the decision taken in the Aamsabha has not been acted upon which compelled the petitioner to approach this Court by filing a writ petition being W.P.(S) No.4478 of 2013.
8. The learned Single Judge on consideration of the aforesaid facts particularly the stand which has been taken by the Mukhiya as recorded in the minutes of meeting which has been brought on record by way of Annexure-1 in the writ petition, which has not been disputed in the counter- affidavit filed by the State and thereafter the writ petition was allowed by quashing the impugned order as also with a direction to compensate the petitioner for depriving her for discharging the duty as Anganwadi Sevika along with a direction upon the Deputy Commissioner, Giridih to fix the 2 accountability upon the erring officers which is the subject matter in the said writ petition.
Argument by the learned counsel for the appellant:
9. Mr. Manish Mishra, the learned GP-V appearing for the State of Jharkhand has raised the following grounds in assailing the impugned judgment:
I. It has been submitted that the learned Single Judge has not appreciated the fact in the right aspect since the issue of non- availability of Mukhiya has not been appreciated even though the Mukhiya who was the head of entire Panchayat and due to his non- appearance, it cannot be said that the meeting of the village committee has been conducted in the proper manner.
II. The learned Single has also not appreciated the fact that the Anganwadi Sevika is not a civil post and without taking into consideration the fact that no right has been accrued in favour of the petitioner but even then, the learned Single Judge has quashed and set aside the order dated 16th July 2013 whereby and whereunder the selection of the petitioner was cancelled.
III. The learned State counsel has further agitated the direction of the learned Single Judge in para-10 of the judgment whereby and whereunder the learned Single Judge has held that in addition to the compensation the petitioner is entitled for entire honorarium/wages for the period for which she has been deprived from discharging her duty as Anganwadi Sevika.
IV. It has been contended that when the petitioner has not initiated her duty due to non-declaration as successful candidate so passing a direction to hold the petitioner entitled for the back wages for the aforesaid period, i.e., from the issuance of the appointment letter in pursuance of the minutes of the Aamsabha held on 30th April 2013 till the fresh appointment pursuant to Aamsabha held in the year 2019, cannot be said to be justified.
V. The learned State counsel based upon the aforesaid grounds has submitted that the impugned order therefore suffers from illegality and it is not sustainable in the eyes of law.3
Argument of Learned counsel for the respondent/petitioner:
10. Per contra, Mr. Yogesh Modi, the learned counsel appearing for the respondent-petitioner while defending the impugned order has submitted that a ground has been taken that due to non-appearance of the Mukhiya of the said village in the Aamsabha, the declaration of the entire selection process to be vitiated cannot be said to be correct argument, reason being the Mukhiya is not a statutory member of the said Village Committee, rather the Mukhiya had been approached by giving information for his appearance in the meeting of the Aamsabha but he has intentionally not participated in the meeting.
11. It has further been contended that not only that after the meeting was convened, minutes of the meeting was carrying to the Mukhiya for getting his concurrence but he refused to do so on the ground that he was waiting for consideration of his sister who was having no certificate as required for the said post on that day.
12. The learned counsel appearing for the respondent-petitioner has further submitted that for no fault of her own the legitimate right of the petitioner to be engaged as Anganwadi Sevika has been deprived by the State authority due to the illegal action and on that pretext the order impugned by which the candidature of the petitioner was cancelled has been quashed and set aside and a direction has been passed to compensate the petitioner for the period for which she has been deprived for discharging her duty as Anganwadi Sevika cannot be said to suffer from illegality. Analysis
13. We have heard the learned counsels appearing for the parties, gone through the findings of the learned Single Judge and the impugned order of the State authority.
14. This Court on the basis of the undisputed fact in the present case that the writ petitioner had participated in the selection process along with other candidates in which Aamsabha has found the writ petitioner as an eligible and successful candidate and thereafter, her candidature was approved for selection as Anganwadi Sevika.
15. It is further admitted fact which is evident from the minutes of the meeting as has been appended by the writ petitioner in the writ petition 4 which has also been brought on record by the State in the present memo of appeal that the Mukhiya was contacted to give the concurrence of the decision taken in the meeting but he has refused to do so on the ground that he was waiting for consideration of the candidature of his sister. For ready reference, the minutes of the meeting of the village committee with respect to the attitude of the Mukhiya, although which is in Hindi, needs to be quoted herein which reads as under:
" आज दिन ांक 30.4.2013 करें घुदिय पेसर पांच यत में आांगनब ड़ी केन्द्र घवैय से सेववक पि के चयन हे तु आम सभ क आयोजन ककय गय जजसमें चयन सममतत के सिस्यों के अल व उपजस्ित ग्र म़ीणों क हस्त क्षर मलय गय ।
1) ब ल ववक स पररयोजन पि धिक री सररय (2) मदहल पययवेक्षक्षक (3) प्रि न ध्य पक शांकर य िव (4)) पांच यत प्रभ री (5) ए. एन. एम- स ववत्ऱी कुम री (6)) उपजस्ित ग्र म़ीणों क हस्त क्षर- (7) -अस्पस्ट-
(8) दिलीप कुम र वणयव ल (9) -अस्पस्ट-
(10) मनोज मोिी (11) झरी महतों (12) हरखु य िव (13) मह िे व महतों (14) अमृत महतो (15) छोटन महतों (16) क ली शांकर (17) ि उि अली (18) Rajesh Kr. Modi (19) मस्तर म मोिी (20) प्रक श य िव (21) मनोज य िव (22) ववनोि य िव (23) बबुन य िव (24) नुनू महतो (25) मुन्द्श़ी य िव (26) Birendra Kumar Yadav (27) Ashok Prasad Barnwal 30/4/13 5 (28) सांग़ीत िे व़ी (29) रीत िे व़ी (30) सुम िे व़ी (31) रे ख कुम री (32) गुडडय िे व़ी (33) कलीम ख तून (34) यशोि िे व़ी (35) मररम ख तुन (36) श ांतत िे व़ी (37) मांिोिरी िे व़ी (38) यशोि िे व़ी (39) जजतऩी िे व़ी (40) वैजन्द्त़ी कुम री (41) सुऩीत िे व़ी (42) व़ीण िे व़ी (43) क स़ी महतो (44) -अस्पस्ट-
(45) -अस्पस्ट-
(46) न र यण ि कुर (47) अजजज ममय ां (48) नस़ीम ख तुन (49) ततलीय ख तुन (50) िे वन्द्त़ी िे व़ी (51) महे न्द्र मोिी आमसभ में उपजस्ित ग्र म़ीणों को बत य गय कक आांगनब ड़ी केन्द्र घवैय वपछड़ी ज त़ी ब हुल्य क्षेत्र है और यह ाँ सेववक पि ररक्त है ।
उपजस्ित ग्र म़ीणों के ब़ीच सम ज कल्य ण, मदहल एवां ब ल ववक स झ रखण्ड र ांच़ी क पत्र ांक 585 दिन ांक 02/06/06 के अनुस र सेववक सह तयक चयन सांबांि़ी तनयमों को ववस्त रपूवक य पढ़कर सुन य गय एवम उपजस्ित ग्र म सभ के ब़ीच उपजस्ित ग्र म़ीणों से सेववक पि हे तु आवेिन पत्र की म ांग की गई । उपजस्ित ग्र म़ीणों के ब़ीच से छः आवेदिक ने सेववक पि के मलए आवेिन दिय जो तनम्न प्रक र है ।
(i) श्ऱीमत़ी सांग़ीत िे व़ी पतत श्ऱी र मचन्द्र य िव, ज तत वपछड़ी, उम्र 23 वर्य, शैक्षणणक योग्यत इांटर है ति इनके द्व र ववकल ांग प्रम ण पत्र दिय गय है जजनक 25% प्रततशत है । इनके द्व र दिय गय आय प्रम ण पत्र 12.10.09 क है । आव स़ीय प्रम ण पत्र, ज तत प्रम ण, मैदिक अांक प्रम ण पत्र और इांटर क अांक प्रम ण पत्र सभ़ी क छ य प्रतत आवेिन के स ि आम सभ में दिय गय है । ये ग ाँव की बहु है ।6
(ii) आवेदिक श्ऱीमत़ी रीत िे व़ी पतत र जेश कुम र मोिी, ज तत वपछड़ी, उम्र 22 वर्य, शैक्षणणक योग्यत स्न तक है । इनके द्व र ज तत प्रम ण पत्र, आय प्रम ण पत्र, आव स़ीय प्रम ण पत्र के स ि शैक्षणणक योग्यत में मैदिक क प्रवेश पत्र, अांक पत्र, मैदिक प्रम ण पत्र, म इग्रेसन प्रम ण पत्र, औपबांधिक प्रम ण पत्र, स्न तक क प्रवेश पत्र, अांक प्रम ण पत्र, औपबांधिक प्रम ण पत्र, पहच न पत्र की छ य प्रतत आवेिन के स ि आम सभ में दिय गय है ।
ये ग ाँव की बहु है ।
(iii) आवेदिक श्ऱीमत़ी रे ख कुम री पतत श्ऱी बह िरु य िव, ज तत वपछड़ी, उम्र 20 वर्य, शैक्षणणक योग्यत इांटर है । इनके द्व र आय प्रम ण पत्र क छ य प्रतत आवेिन के स ि दिय गय है । ये ग व ाँ की बहु है और सह तयक पि पर क ययरत है ।
आम सभ में पांच यत के मुणखय श्ऱी गोप ल य िव उपजस्ित नहीां हुए। प्रच र-प्रस र के क्रम में मदहल पययवेक्षक्षक मुणखय ज़ी के आव स घदिय पेसर गई और उन्द्हें आम सभ की ज नक री िी ति सूचन प्रपत्र में हस्त क्षर करने की आग्रह की पर मुणखय श्ऱी गोप ल य िव उग्र होकर बोले सह तयक श्ऱीमत़ी सुम िे व़ी मेरी सग़ी बहन है । जो मध्यम क परीक्ष िी है जब तक उसक मध्यम क प्रम ण पत्र नहीां आ ज त है तब तक आमसभ नहीां की ज एग़ी।
इसके ब ि पांच यत सममतत श्ऱी टोपन य िव को आमसभ की सूचन िी ति सूचन प्रपत्र पर हस्त क्षर मलय गय । वे आम सभ में भ़ी उपजस्ित हुए।
आम सभ मे प्र प्त कुल छः आवेिनों में श्ऱीमत़ी बैजन्द्त़ी िे व़ी एवां श्ऱीमत़ी रीत िे व़ी उच्च योग्यत में स्न तक है । श्ऱीमत़ी बैजन्द्त़ी िे व़ी पतत श्ऱी प्रभु य िव ने ज तत, आय, आव स़ीय प्रम ण पत्र ति शैक्षणणक योग्यत में मैदिक परीक्ष प्रवेश पत्र, अांक प्रम ण पत्र ति इांटर परीक्ष प्रवेश प्रम ण पत्र क छ य प्रतत नहीां िी है । उनसे आमसभ में मूल प्रम ण पत्र िे खने के मलए म ांग गय । लेककन श्ऱीमत़ी बैजन्द्त़ी िे व़ी ने आमसभ में भ़ी प्रम ण पत्र दिख ने से असमियत जत ई। उनके द्व र शैक्षणणक योग्यत में मसर्य इांटर अांक प्रम ण पत्र ति स्न तक प्रवेश पत्र और अांक प्रम ण पत्र आम सभ में दिय गय ।
श्ऱीमत़ी रीत िे व़ी पतत र जेश कुम र मोिी के द्व र आम सभ मे ज तत प्रम ण पत्र, आव स़ीय प्रम ण पत्र, आय प्रम ण पत्र, मैदिक परीक्ष क प्रवेश पत्र, मैदिक अांक प्रम ण पत्र, म इग्रेसन प्रम ण पत्र, औपबांधिक प्रम ण पत्र, इांटर क परीक्ष प्रवेश पत्र, इांटर अांक प्रम ण पत्र, औपबांधिक प्रम ण पत्र, स्न तक क परीक्ष प्रवेश पत्र, अांक प्रम ण पत्र, औपबांधिक प्रम ण पत्र, पहच न प्रम ण पत्र, धचककत्स प्रम ण पत्र आवेिन के स ि प्रस्तुत ककय गय एवां मूल प्रम ण पत्र से भ़ी ममल न ककय गय ।
श्ऱीमत़ी बैजन्द्त़ी िे व़ी के स्न तक में 727 अांक प्र प्त हुए है और रीत िे व़ी को 708 अांक प्र प्त हुए है । लेककन बैजन्द्त़ी िे व़ी के द्व र मैदिक क 7 ककस़ी भ़ी प्रक र क शैक्षणणक प्रम ण पत्र नहीां दिय गय है । और आम सभ में म ांगने पर भ़ी मूल प्रम ण पत्र नहीां दिख य गय है । इस आि र पर चयन सममतत एवां उपजस्ित ग्र म़ीणों की सवयसम्मतत से श्ऱीमत़ी रीत िे व़ी पतत र जेश कुम र मोिी जो सभ़ी प्रम ण पत्र के स ि आम सभ में उपजस्ित हुई, क चयन सेववक पि के मलए ककय ज त है ।"
(-हस्त क्षर-) ब ल ववक स पररयोजन पि धिक री बगोिर (धगररड़ीह)
16. It is, thus, evident that it has not been argued either by the State that the Mukhiya had not participated in the process of such selection, rather it was the Mukhiya who after due communication of the date of the said meeting did not attend the meeting intentionally due to waiting for consideration of the candidature of his sister who having no eligibility at that time for such selection. The said instance has been reflected in the quoted part hereinabove and it is evident that the ground which has been made out by the State that the Mukhiya had not appeared and he was having no knowledge of that meeting is absolutely incorrect.
17. It has been contended that in course of the argument, as has been pleaded in the counter-affidavit also, that based upon the aforesaid attitude of the Mukhiya the higher authority has restrained the local authority not to issue any appointment letter in favour of the petitioner.
18. Therefore, the fact about the dictate of the authority is apparent which cannot be said to be proper and garnishee, reason being that once the selection process had begun and the same has been considered by the competent authority, i.e., the Village Committee in its Aamsabha then there is no jurisdiction of the higher authority to give a dictate to the lower authority not to act upon on the basis of the recommendation made by the local Village Committee which is the process for the purpose of selection of Anganwadi Sevika as decided by the policy decision of the State of Jharkhand.
19. The petitioner, immediately thereafter, approached this Court by filing a writ petition being W.P(S) No. 4478 of 2013 in the year 2013 which has been decided after lapse of ten years in the year 2023 vide order dated 14th March 2023. The learned Single Judge has passed two directions first, 8 in paragraph no.10 and the second in paragraph no.11. For ready reference, both the directions of the learned Single Judge are being quoted hereunder:
"10. This Court fails to understand that who will compensate the petitioner for keeping her out of service for six long years and pay honorarium / salary. This Court after going through the documents comes to a conclusion that the respondents, in particular Deputy Commissioner, Giridih shall take initiative for making payment of honorarium / salary of the entire period i.e. when the appointment letter was issued to the petitioner pursuant to Aam Sabha held on 30.4.2013 till the fresh appointment pursuant to Aam Sabha held in the year 2019. The Deputy Commissioner, Giridih shall fix the liability on the officers, who were responsible for not allowing the petitioner to work for six long years. Let the entire exercise be undertaken within a period of eight weeks from the date of receipt of a copy of this order.
11. As a cumulative effect, the order dated 16.7.2013 cancelling the appointment of the petitioner as Aaganbari Sevika is hereby quashed."
20. This Court is now considering the fact about the order which has been assailed, particularly, at paragraph no.11, whereby and whereunder the learned Single Judge has quashed the impugned order dated 16 th July 2013 whereby the selection of the petitioner as Anganwadi Sevika, Anganwadi Centre, Dhawaiya in the district of Giridih was cancelled.
21. The question which has been raised that due to absence of the Mukhiya the decision which has been taken by the Village Committee cannot be said to be proper, but as we have discussed hereinabove regarding the attitude of the Mukhiya, it is evident therefrom that it is incorrect on the part of the State to take the plea that the Mukhiya was having no information about the Aamsabha to be conducted on a particular date rather, Mukhiya was having knowledge about the same and he refused to give concurrence on the decision taken by the Village Committee as he 9 wants consideration of selection of her sister as Anganwadi Sevika despite she being not eligible for the said post on that relevant date.
22. Therefore, this Court is of the view that the learned Single Judge has rightly interfered with the impugned order taking into consideration the fact that there is no laches on the part of the petitioner, rather the learned Single Judge has taken into consideration that regarding the eligibility, qualification and consideration so made by the Village Committee and based upon the fact that the petitioner was appointed and subsequent thereto, she was terminated and that too, without affording any opportunity of hearing and that is on the basis of the dictate of the higher authority.
23. This Court is therefore of the view that the direction so passed by the learned Single Judge in paragraph no.11 of the judgment cannot be said to suffer from any error.
24. So far as paragraph no.10 of the judgment of the learned Single Judge is concerned, the law is well-settled and the normal rule, i.e., "No Work No Pay" is to apply, but in each and every case the said principle cannot be made applicable, rather the principle is that if a concerned employee or the public servant after engagement was deprived from discharging the duty without any fault of his own and subsequently, it has been found by the Court of law that such disengagement was improper by holding it illegal, then the principle of "No Work No Pay" is not applicable.
25. This Court deems fit and proper to refer legal position pertaining to entitlement of back wages by the workman, which has been considered by Hon'ble Apex Court (three judges) in the case of Union of India and Others Vs. K.V. Jankiraman reported in (1991) 4 SCC 109 wherein it has been held that although no work no pay is the normal rule, but it has got exception and it will not be applicable in a case where the employee was willing to work but had not been allowed to discharge the duty and if such a condition would be there, the principle of no work no pay will not be applicable. Relevant paragraph, i.e., para-25 of the said judgment is being reproduced as under:
"25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of 10 "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases."
26. Further, the Hon'ble Apex Court in the case of Commissioner, Karnataka Housing Board Vs. C. Muddaiah reported in (2007) 7 SCC 689 has considered the issue of "No Work No Pay" and observed at paragraph 34 thereof which reads hereunder as :-
"34. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected."
27. The Hon'ble Apex Court has also taken into consideration the issue of "No Work No Pay" in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324 wherein paragraph no.38, parameters have been laid down for the purpose of consideration of the back wages. The aforesaid principle has been carved out by considering the fact that due to disengagement or termination keeping 11 out the concerned employee from discharging duty the suffering is to be taken care of and the concerned employee is required to be compensated by passing an order of the back wages. For ready reference, paragraph no.38 of the aforesaid judgment is being quoted hereunder:
"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.
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 12 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 victimising the employee or workman, then the court or tribunal concerned 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 the sufferer is the employee/workman and there is no justification to give a 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.
1338.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation 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 (P) Ltd. v. Employees.
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.--"
28. It is evident from the aforesaid judgment, more particularly para-38.3 which starts as "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 14 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."
It is, thus, evident from the aforesaid paragraph that the ordinarily a pleading is to be made before the adjudicating authority of the court of first instance that he/she was not gainfully employed.
29. Further, from paragraph-38.4, it would be evident that the Hon'ble Apex Court has been pleased to lay down that the case 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.
30. Further, from paragraph-38.5, it would be evident that 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 victimising the employee or workman, then the court or tribunal concerned 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 15 service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a 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.
31. Further, from paragraph-38.6, it would be evident that in a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation 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 (P) Ltd. v. Employees.
32. It is, thus, evident that the guidelines as under para-38 of aforesaid judgment, according to the considered view of this Court, is in two parts, first part deals with the part of pleading to be made by the concerned workman of having not gainfully employed, however, if the learned labour court or the industrial tribunal is exercising the power conferred under Section 11-A of the Act, 1947 and if the punishment has been found to be disproportionate to the misconduct found proved, then the discretion is upon the adjudicator not to award full back wages.
33. But, 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.
34. Likewise, para-38.5 also stipulates three eventualities of issuing a direction passing an award on back wages if the employer has acted in 16 gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages.
35. Similarly, in the case of Jasmer Singh Vs. State of Haryana and Another reported in (2015) 4 SCC 458 the Hon'ble Apex Court has reiterated the same principle at paragraph 21 and 22 thereof which reads hereunder as: -
"21. The said relief in favour of the appellant- workman, particularly the full back wages is supported by the legal principles laid down by this Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, wherein the Division Bench of this Court to which one of us was a member, after considering three- Judge Bench decision, has held that if the order of termination is void ab initio, the workman is entitled to full back wages.
22. The relevant para of the decision is extracted hereunder: -
"22. 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. At times, the family has to borrow from the 17 relatives and other acquaintance 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 the competent judicial/quasi- judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the 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 the 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. This Court, after having referred the aforesaid judgments and coupled with the other Judgment which has been passed by a Co-ordinate Division Bench of this Court in Intra Court Appeal being L.P.A. No. 80 of 2020 wherein the issue of "no work no pay" has been extensively dealt with, as also after applying the principle as laid down by the Hon'ble Apex Court in the case of K.V Jankiraman (supra), is of the opinion that the principle of "No Work No Pay" will not be applicable in each and every case, rather it will be tested on the basis of the fact of each and every case.
37. It also needs to refer herein that the State of Jharkhand has preferred a SLP being S.L.P (C) No 16868 of 2022 against the order passed in Intra Court Appeal being L.P.A. No. 80 of 2020 but that SLP was dismissed by the Hon'ble Apex Court vide order dated 10.01.2022.
38. This Court adverting to the facts of the present case also that the respondent-petitioner was appointed but all of a sudden and, that too, on a dictate of the higher authority she was terminated.
1839. The order of termination has been challenged by filing the writ petition being W.P(S) No.4478 of 2013 which has been decided after lapse of ten years and for those ten years the writ petitioner has faced the trauma of being not getting any engagement along with remuneration/wages.
40. This Court is of the view that for the fault committed by the State as per the observation of the learned Single Judge as held in paragraph no.11 of the impugned judgment the question is why the writ petitioner has been deprived from the benefit of back wages without any fault on her part.
41. Further, if the said situation will be allowed to be carried then the employer even though being a wrong doer will be allowed to take advantage of his action, which is not permissible in the eyes of law. Reference in this regard may be taken from the judgment rendered by the Hon'ble Apex Court in the case of Kusheshwar Prasad Singh vs. State of Bihar and Ors., (2007) 11 SCC 447, wherein at paragraphs-14, 15 and 16, the Hon'ble Apex Court has observed as under:
"14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal [AIR 1961 SC 1353] wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong).
15. ... This Court (at SCC p. 142, para 28) referred to Broom's Legal Maxims (10th Edn.), p. 191 wherein it was stated: "It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure."19
16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, "a wrongdoer ought not to be permitted to make a profit out of his own wrong"."
42. Further, in Advanta India Limited vs. B. N. Shivanna and Anr., (2018) 14 SCC 666, the Hon'ble Apex Court has been pleased to observe at para-20 which reads as under:
20. After going through the record, we find that the BCI has shown undue indulgence to the respondent by allowing him to take advantage of his own wrong, in the guise of exercising its review power. It is a case of nullus commodum capere potest de injuria sua propria meaning thereby that a party cannot take advantage of its own wrong. This maxim is explained in Eureka Forbes Ltd. v. Allahabad Bank in the following manner:
(SCC p. 217, para 66) "66. The maxim nullus commodum capere potest de injuria sua propria has a clear mandate of law that, a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations."
43. In the backdrop of the aforesaid legal position it is evident from the record of the case that after her termination, immediately thereafter the writ petitioner approached this Court by filing W.P(S) No.4478 of 2013 which shows that she is not negligent. But the fact remains that for the last six years i.e. from 16th July 2013 till the period when the petitioner was appointed without any fault of her own, she has been made to suffer and, on the principle, as laid down by the Hon'ble Apex Court in the case of K.V. Jankiraman and Deepali Gundu Surwase Vs. Kranti Junior Adhyapak 20 Mahavidyalaya (Supra) this Court is of the view that the principle of "No Work No Pay" will not be applicable in the facts of the present case.
44. Therefore, the direction which has been passed regarding the back honorarium/salary, by the learned single Judge, cannot be said to be suffer from any illegality.
45. So far, the issue of compensation is concerned with a direction upon the Deputy Commissioner, Giridih to conduct an inquiry the same can also not be said to suffer from errors, reason being that such direction is to be considered by the higher authority so that the same will not be repeated to harass unnecessary the claim of the legitimate candidate/engagement in future which floods the pending litigation.
46. This Court, in the entirety of the facts and circumstances of the case, is of the view that the instant appeal has no merit which is, accordingly, dismissed.
47. Consequently, I.A No.6214 of 2023 for staying the order dated 14th March 2023 of the learned Single Judge stands dismissed.
(Sujit Narayan Prasad, A.C.J.) (Arun Kumar Rai, J.) Sudhir AFR 21