Allahabad High Court
Munendra Pal Gangwar vs State Of U.P. And 2 Others on 3 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:80655 Court No. - 34 Reserved Case :- WRIT - A No. - 14734 of 2023 Petitioner :- Munendra Pal Gangwar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shivajee Singh Sisodiya Counsel for Respondent :- C.S.C.,Mahesh Narayan Mishra Hon'ble J.J. Munir,J.
1. This writ petition is directed against an order dated 24.01.2023 passed by the Assistant Commissioner and Assistant Registrar, Cooperative Society, District Pilibhit, to the extent that it declines back-wages to the petitioner from the date of his suspension till reinstatement in service, directed by the said order.
2. The petitioner was an Auditor in the services of a certain Shahi Sadhan Sahkari Samiti Limited, Block Lalauri Khera, District Pilibhit (for short, 'the Cooperative Society'). He was appointed in the year 1986 and after a long service, it appears that a preliminary inquiry was held against the petitioner, at the end of which, the petitioner was found to have not deposited and thereby embezzled a sum of Rs.1,83,501/-, belonging to the Cooperative Society. The petitioner was suspended from service pending departmental proceedings vide order dated 17.10.2020. He was served with a charge-sheet, to which the petitioner responded by his reply. The petitioner says that without considering the petitioner's reply, the Cooperative Society terminated the petitioner's services vide order dated 20.06.2022, holding that on several occasions the money entrusted to the petitioner was not deposited with the Bank. It was held that a sum of Rs.24,376/- and a further sum of Rs.698.44 were not deposited in the Cooperative Society's account. The petitioner says that he moved an administrative appeal on 04.07.2022 before the Assistant Commissioner and Assistant Registrar, Cooperative Societies, Pilibhit against the order dated 20.06.2022, terminating his services. What this Court makes of the petitioner's case in this regard is that he moved an application before the Assistant Registrar invoking his powers under Section 128 of the Uttar Pradesh Cooperative Societies Act, 1965, seeking to annul the Cooperative Society's resolution and cancelling the order terminating his services. The petitioner admits the fact that he deposited with the Bank a sum of Rs.1,83,610/- on various dates, such as, 24.09.2020, 28.09.2020, 29.09.2020 and the delay in making good this deposit was on account of the fact that the petitioner had suffered a heart attack, together with paralysis, during the said period of time. All that remains due to the petitioner was a sum of Rs.24,376/-, besides another sum of Rs.698/-, at the time when proceedings were taken against him. The application before the Assistant Registrar was lingering on without a decision. Therefore, the petitioner moved this Court by means of Writ-A No.19756 of 2022, seeking a direction to the Assistant Registrar to decide the petitioner's application, again described as an administrative appeal.
3. This Court by an order dated 28.11.2022 directed the Assistant Registrar to decide the petitioner's appeal by a reasoned and speaking order within a period of two months of the date of production of a copy of the order passed in the aforesaid case.
4. Shorn of unnecessary detail, suffice it to say that the Assistant Registrar, when served with the orders of this Court to expedite, decided the petitioner's application holding largely in his favour and setting aside the termination order dated 20.06.2022 passed by the Cooperative Society. However, salary for the period 17.10.2020 to 23.01.2023, that is to say, the date of his suspension until the direction for his reinstatement was denied. The petitioner is aggrieved by this part of the Assistant Registrar's order dated 24.01.2023, which he assails by means of the present writ petition under Article 226 of the Constitution.
5. A counter affidavit each has been filed on behalf of respondent Nos.2 and 3, to which two rejoinders have been filed by the petitioner.
6. Heard Mr. Shivajee Singh Sisodiya, learned Counsel for the petitioner, Mr. Dinesh Kumar Singh, learned Additional Chief Standing Counsel on behalf of respondent Nos.1 and 2 and Mr. Mahesh Narayan Mishra, learned Counsel on behalf of respondent No.3.
7. The thrust of the submission of the learned Counsel for the petitioner is that the principle of 'no work no pay' is not applicable to a case where an employee has been illegally terminated from service, which is set aside by invoking appellate procedure etc. It is urged that the petitioner's termination was found wrongful and the charges not proved in statutory proceedings under Section 128 of the U.P. Cooperative Societies Act, described as an administrative appeal. Once the termination of the petitioner was found unfit to be sustained, there is no reason to deprive the petitioner of emoluments for the period that he was forced to stay out of employment on account of a wrongful action of the Cooperative Society.
8. The learned Counsel for the petitioner has placed reliance upon the decision of the Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and others, (2013) 10 SCC 324. Reliance has also been placed on the decision of the Supreme Court in Pradeep v. Manganese Ore (India) Ltd. and others, (2022) 3 SCC 683.
9. The learned Counsel for the respondents, on the other hand, submits that the petitioner, in fact, was charged with illegally withholding proceeds of fertilizer sale by not depositing the same in the Society's Bank account. Ultimately, the petitioner did retain a sum of Rs.26,820/-, which he did not pay. The Registrar, exercising his wide powers under Section 128, was of opinion that the petitioner had not been paid his salary for a long period of time, and, perhaps, considering the reverse to his health that he suffered, in the totality of circumstances, set aside his order of termination.
10. Upon hearing learned Counsel for the parties, we find that the principles, about the rule for granting reinstatement with continuity of service and back-wages, were culled out by the Supreme Court in Deepali Gundu Surwase (supra) thus:
"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 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.
38.6. 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 [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53].
38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal [(2007) 2 SCC 433 : (2007) 1 SCC (L&S) 651] 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 [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53] , [Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443 : 1981 SCC (L&S) 16] referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."
11. In a much later decision, the Supreme Court in Pradeep (supra), after a reference to Deepali Gundu Surwase, held:
"12. It is, undoubtedly, true when the question arises as to whether the back wages is to be given and as to what is to be the extent of back wages, these are matters which will depend on the facts of the case as noted in Deepali Gundu Surwase [Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 : (2014) 2 SCC (L&S) 184] . In a case where it is found that the employee was not at all at fault and yet, he was visited with illegal termination or termination which is actually activised by malice, it may be unfair to deny him the fruits of the employment which he would have enjoyed but for the illegal/malafide termination. The effort of the Court must be to then to restore the status quo in the manner which is appropriate in the facts of each case. The nature of the charges, the exact reason for the termination as evaluated and, of course, the question as to whether the employee was gainfully employed would be matters which will enter into the consideration by the Court.
13. As far as the present case is concerned, the reason given by the High Court in the impugned order [Pradeep v. Manganese Ore (India) Ltd., 2017 SCC OnLine Bom 10125] for denying back wages clearly does not appeal to us. According to the appellant, the appellant has indeed stated that he was not working. The case of the respondent is that he was a Chartered Accountant and that he was indeed earning. The learned counsel for the appellant does not deny that the appellant was indeed earning some amount from doing accountancy related work and he had filed returns under the Income Tax Act. This means as things stand before us, it is a case where the appellant must be treated as not having been without any income at all during the period. He was earning.
14. We have also, however, noticed that there was hardly any worthwhile reason for the respondent to terminate the services. The impugned order [Pradeep v. Manganese Ore (India) Ltd., 2017 SCC OnLine Bom 10125] itself shows that there was no basis for termination of the services of the appellant. When the appellant was qualified and particularly, when the appellant also has a case that all this was done for the reason that he had taken up certain issues relating to the manner in which the affairs of the respondent was being run, we would think that the High Court was in error in not making appropriate order relating to back wages."
12. In a Bench decision of our Court in Union of India and others v. Hari Shankar Pandey and others, 2016 (5) ALJ 690, it was held:
"9. ......
It is no doubt true that in exercise of powers of judicial review under Article 226 of the Constitution of India, this Court would not interfere with the findings of fact based on evidence by reappraisal the evidence to arrive at its own conclusion. The legal position in this regard has been laid at rest by the Apex Court in the case of B.C. Chaturvedi, AIR 1996 SC 484) (supra).
10. It is, however, well-settled legal position that if the findings are based on no evidence and perverse, the Writ Court cannot keep its hands off and is not precluded from interfering to that extent to upset such finding.
11. Having carefully gone through the record, we are of the considered view that the finding of guilt returned in the facts of the present case is perverse and reflects complete non application of mind to the material as was disclosed in the Inquiry Report.
12. The findings returned by the learned Single Judge are within the four corners of settled principles of judicial review. We are in respectful agreement with the conclusion drawn by the learned Single Judge and see no reason to interfere in the judgment and order dated 4.3.2016 holding that the order of punishment is unsustainable for want of evidence.
13. Now the question remains as to whether the respondent-employee would be entitled to full salary for the period of his termination i.e. from 1983 till the date of superannuation as well as other benefits as a result of setting aside the illegal order of dismissal.
15. It has been held that if workman is kept out of service due to the fault or mistake of the employer he was working with, then the workman is entitled to full back-wages for the period he was illegally kept out of service.
16. In the light of the above referred legal position settled by the Apex Court considering the facts and circumstances of the present case, we find that there is no pleading with regard to the gainful employment of the employee during the period he was kept away as a consequence of illegal termination order."
13. It would, thus, appear that the facts of a case have to be carefully scrutinized by the Court to determine if the termination from service or dismissal was absolutely wrongful and one for no fault of the employee's. The nature of the charges, the gravity of the offence, all have to be taken into account, to determine if it is a case where it can be said that the employee has been kept out of harness by a unilateral and wrongful act of the employer. There could be cases in the twilight zone between non-guilt or some guilt for the employee, where invoking the appellate procedures or judicial review, the employee meets with the life breathing success of securing his reinstatement in service. In cases of doubtful guilt or some misconduct established on the employee's part, but not good enough to sustain his removal from service or the employer's view ordering the employee's removal being a plausible one, it may not be the right course to award back-wages though continuity in service ought invariably be granted.
14. The case of the petitioner here is not one where he has not been held to be absolutely free of blemish. Rather, as said above, it is the peculiar conditions of service prevailing in Cooperative Societies, where employees go without their salary for months and in this case also, the petitioner had a considerable balance of unpaid salary that the Assistant Registrar held the order of dismissal from service bad in law, ordering reinstatement. Rather, this Court must remark that the findings recorded by the Assistant Registrar are far from ones that hold the charge to be bad or not proved. Yet, on an overall evaluation of circumstances, reinstatement has been directed.
15. In the totality of circumstances, no case for interference with the impugned order is made out. It is, however, clarified that so far as the revised emoluments claimed by the petitioner in terms of the 5th Pay Commission are concerned, that is something to which the petitioner would be entitled as a matter of course, like any other employee of the Cooperative Society.
16. Subject to the above remarks, this Court does not find any good ground to interfere with the order impugned.
17. This petition fails and dismissed.
18. There shall be no order as to costs.
Order Date :- 03.05.2024 Anoop (J.J. Munir, J.)