Allahabad High Court
Raja Babu Gautam vs State Of U.P. on 18 December, 2018
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 20
Case :- SERVICE SINGLE No. - 8529 of 1993
Petitioner :- Raja Babu Gautam
Respondent :- State Of U.P.
Counsel for Petitioner :- Pankaj Nath,Arvind Kumar,K.K. Gautam
Counsel for Respondent :- C.S.C.
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Hon'ble Manish Mathur,J.
Heard Sri Arvind Kumar, learned counsel for the petitioner and learned Standing counsel appearing on behalf of the opposite parties. None appeared on behalf of opposite party no.6.
This Writ Petition had been filed initially seeking a direction for quashing the order dated 4/5 October, 1993 for initiation of enquiry against the petitioner as also against the charge sheet dated 14.10.1993. Subsequently, the writ petition has been amended and various other prayers have been permitted to be added which relate to the payment of salary and allowances since 1.5.1981 or 9.5.1981 to 31.3.2001 along with increments and refixation of salary as and when the scales of pay were revised. Interest at the rate of 24% per annum has also been sought on such salary and allowances and on the difference amount of Provident Fund, Gratuity and Leave encashment pursuant to the refixation of pay as above. The petitioner has also sought earned leave and promotion along with refixation of his pension.
The facts in brief are that the petitioner was a substantively appointed Batallion Inspector in the Home Guards and was posted in Jhansi at the relevant time when by means of the order dated 5.5.1981, he was transferred to Meerut. As per the averments made in the Writ Petition, subsequently, the petitioner applied for leave on 10.5.1981 for a period of one month whereafter he tried to join his post on 11.6.1981 at Jhansi but was not permitted by the authorities to do so. It is the case of the petitioner that he kept representing to the authorities for permission to rejoin his post but was not permitted to do so and in fact he was served with a charge sheet dated 14.10.1993 containing four charges, primarily, relating to his absconding from duty with effect from 9.5.1981. The said charge sheet was thereafter challenged in the present writ petition on the ground that the petitioner had not absconded from duty and had in fact been on leave with effect from 10.5.1981 and when he had not been permitted to rejoin his duties after one month, he kept representing to the authorities who did not permit to rejoin his duties and, therefore, it cannot be said that he had absconded from duty.
By means of the order dated 20.1.1994, this Court, while entertaining the writ petition, directed the authorities to supply copies of documents to the petitioner, in accordance with rules, in order to enable him to file reply to the charge sheet. It was also directed that although enquiry against the petitioner could proceed but final orders were not to be passed till final orders of the Court.
By means of another order dated 27.3.1997, this Court directed the opposite parties to file a supplementary affidavit to bring the order of transfer on record. It is, however, the interim order dated 12.11.1997 of this Court, which is relevant to properly understand the dispute between the parties. The order dated 12.11.1997 reads as follows:
" I have heard learned counsel for the parties.
It is not disputed by the opposite parties that the petitioner was not on leave till 9.5.1981. Therefore, why the order of transfer dated 5.5.1981 transferring the petitioner from Mau Ranipur, Jhansi to Meerut was sent by registered post though till date, the State Government has not disclosed the address on which it was forwarded. The order of transfer which was forwarded does not contain any address on which it was sent. In these circumstances, how the petitioner was relieved on 9.5.1981 in absentia appear to be most doubtful. According to respondents themselves, the leave application is dated 12.5.1981. Even assuming that the order of transfer was sent by post even then the department will have to give some time for the letter to reach the destination and the addressee to come and hand over charge. No such circumstance has been indicated in the counter affidavit for which the petitioner was relieved at Jhansi in absentia. From 1981 onwards till 1993, no further orders have been passed by the State government either seeking the explanation of the petitioner, suspending him, or, dismissing him from service. According to the learned counsel for the petitioner, since the petitioner was approaching the department again and again and was submitting representations, therefore, when the legal advice was obtained, the D.G.C. opined to permit the petitioner to join then only the department initiated departmental enquiry against the petitioner. Even this enquiry is not being conducted in accordance with the established procedure of law. The documents are not being supplied to the petitioner and he is unable to file reply to the charge sheet. The charge-sheet has been served on 14.10.1993 containing the charges with regard to absence only. On the other hand, the learned standing counsel contends that the petitioner is not cooperating with the enquiry. In fact, the whole conduct of the State government inspires no confidence and the manner in which the State government has dealt with its employee in the last 16 years speaks for itself. I, therefore, direct that the opposite parties shall permit the petitioner to join either at Jhansi or at Meerut for which specific orders in writing be handed over to the learned counsel for the petitioner by the learned Standing Counsel within two weeks. The petitioner shall thereafter on receiving the order passed by the State Government received through his counsel shall join at the place indicate in the order within a week thereafter. The departmental enquiry shall continue. The opposite parties are directed to follow the principles of natural justice as also the procedure prescribed in law for conducting departmental enquiries, meaning thereby that all such documents on which reliance is being placed, the copies thereof be served on the petitioner. The question of inspection in this case does not arise because the petitioner is without any resources and he will not be in a position to travel from one place to another because the State government has not paid a single penny to the petitioner for the past 16 years. After all the documents are so served, the petitioner shall submit a reply within four weeks thereafter. The enquiry shall be completed within three months. The Enquiry Officer shall submit the enquiry report to the punishing authority immediately after completing the enquiry within one month and the punishing authority shall thereafter await further directions of this Court and shall not pass the final orders.
List this case after four weeks when the affidavit of compliance, i.e. the joining of the petitioner shall be filed by both the parties. The joining shall be subject to further directions of this Court.
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A perusal of the order dated 12.11.1997 makes it clear that this Court has specifically observed that when the petitioner was not on leave till 10.05.1981, then there was no occasion for the opposite parties to have sent the transfer order by registered post on 8.5.1981, which in itself indicates that the petitioner was not made aware of the transfer order. This Court has also observed that even the departmental enquiry is not being conducted in accordance with the established procedure of law inasmuch as the relevant documents are not being supplied to the petitioner and he is, therefore, unable to file a proper reply to the charge sheet. In such circumstances, this Court directed the opposite parties to follow the principles of natural justice by providing all the relevant documents to the petitioner with a further direction that the said enquiry would be completed within a period of three months in furtherance of which the enquiry officer was to provide enquiry report to the punishing authority who would thereafter, await further directions of this Court and not pass final orders.
In pursuance of the aforesaid interim order, the transfer order was served upon the petitioner on 5.12.1997 whereafter the petitioner joined his services on 13.12.1997 in the minimum of the scale pertaining to his post. It is, however, surprising that on 16.6.1998, a second charge sheet containing similar charges was issued to the petitioner under signatures of different authority, which was replied to by the petitioner by means of letter dated 17.07.1998, indicating that he had already replied, in details, to the first charge sheet which may also be considered as reply to the second charge sheet. Vide order dated 24.10.1998, the said contention of the petitioner was rejected and he was directed to file a complete reply to the second charge sheet and in pursuance of which the petitioner filed a detailed reply on 23.2.1999 while indicating that the relevant documents required for the proper disposal of the enquiry had not been given to him It is relevant to note that, by means of an additional counter affidavit, it has been submitted by the opposite parties that in pursuance of the directions of this Court, the enquiry report was submitted but no final decision was taken in the matter as was directed. However, a copy of the said enquiry report dated 20.3.1999 was neither supplied to the petitioner nor has it been brought on record in this petition.
As indicated herein above, the petitioner joined on his post on 13.12.1997 in pursuance of the directions of this Court and continued in service while superannuating on 31.3.2001.
It has been stated that till date the petitioner is only being paid the provisional pension in the minimum of the scale and no other post-retirement benefits have been made available to the petitioner on account of pendency of this writ petition.
Learned counsel for the petitioner has submitted that the present case is that of absolutely no evidence against the petitioner with regard to the charges imputed against him in the charge sheet and furthermore that even in the enquiry proceedings, prescribed procedures and directions issued by this Court were not followed and neither the relevant documents were provided to the petitioner nor any oral enquiry was held. This fact in itself indicates that the entire proceedings against the petitioner were vitiated on account of which the petitioner is entitled for the reliefs claimed in the writ petition. It has also been submitted that once the charge sheet dated 14.10.1993 had been issued in pursuance of which the enquiry proceedings were being continued in terms of the directions of this Court, then there was no occasion for the opposite parties to have issued a second charge sheet on 16.6.1998; that too without taking any permission or approval from this Court. It has been submitted that all these proceedings clearly indicate continuous harassment of the petitioner at the hands of the opposite parties for which the petition is liable to be allowed.
Learned counsel for the petitioner has relied upon the decision of Hon'ble the Supreme Court in Srikantha S.M. v. Bharat Earth Movers Ltd. reported in (2005) 8 SCC 314 in which in paragraphs 29 and 30, Hon'ble the Supreme Court has held that once the petitioner was not allowed to work by the employer and the orders restraining him from working are quashed, then he is entitled to all consequential benefits. The principle of "no work. no pay" would not be applicable in such a case. He has also relied upon another decision in Commissioner, Karnataka Housing Board v. C.Muddaiah, reported in (2007) 7 SCC 689 wherein, in paragraph 32, Hon'ble the Supreme Court has held to the same effect.
The learned Standing Counsel appearing on behalf of the opposite parties has defended the proceedings against the petitioner by submitting that the transfer order dated 5.5.1981 was passed in the knowledge of the petitioner where after he was relieved on 9.5.1981 and the petitioner absconded on account of the fact that he did not want to join at his transferred place. It has also been submitted that the petitioner was engaged in other services on account of which he was not interested in continuing with services. It has also been submitted, after placing reliance upon the supplementary counter affidavit filed by the opposite parties, to the effect that the enquiry proceedings could not be completed on account of non-cooperation by the petitioner in the enquiry proceedings in as much as irrelevant documents were being sought by the petitioner from time to time in the garb of protection given by this Court.
I have heard learned counsel for the parties and perused the record.
As has been indicated in the interim order dated 12.11.1997, it is not understandable as to why the order of transfer dated 5.5.1981 transferring the petitioner from Jhansi to Meerut was sent by registered post and that too when the opposite parties did not disclose the address on which it was forwarded. It is also difficult to understand as to why this mode of service of the transfer order was effected upon the petitioner when, admittedly, at the time of passing of the transfer order, the petitioner was very much in service and had been relieved only subsequently on 9.5.1981. Even as per the relieve application, the petitioner could be assumed not to be on duty only from 10.5.1981 and not before the said date. In view of the aforesaid facts, it cannot be said that the petitioner was at any time made aware about his transfer from Jhansi to Meerut, particularly, when there is no material on record to indicate that the said transfer order was ever served upon him personally. Furthermore, the opposite parties also could not indicate as to why this particular mode of service was sought to be effected only upon the petitioner although about 81 persons were transferred by means of the said order and it is not the case of the opposite parties that any or all of them were served with the transfer order in the same mode.
In view of the aforesaid facts, it can be culled out that the petitioner was not made aware of the transfer order dated 5.5.1981 at any time prior to 9.5.1981 and that he had bonfidely applied for leave on 10.5.1981 which cannot be said to be a pretext for avoiding the transfer order. It is also relevant that, in paragraph 8 of the writ petition, the petitioner has specifically stated that he had tried to join his post at Jhansi on 11.6.1981 and subsequently thereafter also. The said fact has been admitted by the opposite parties in paragraph 15 of the consolidated counter affidavit filed by the opposite parties to the amended writ petition although indicating that there was no occasion to permit the petitioner to join at Jhansi since he had been transferred to Meerut. However, the opposite parties had been unable to indicate whether the petitioner was, subsequently, issued any letter directing him to join at Meerut in pursuance of the transfer order and not at Jhansi.
A perusal of the charge sheets also indicates the contrary stand taken by the opposite parties with regard to absence of the petitioner from service. Charge No.3 states that the petitioner has been absent from duty with effect from 26.8.1981 whereas charge no.4 indicates that the petitioner has been continuously absent from duty with effect from 9.5.1981. The said discrepancy in the charge sheet itself indicates that the entire case against the petitioner appears to be concocted. The said fact is buttressed by the petitioner's leave application dated 14.5.1981 brought on record by the opposite parties themselves as Annexure-4 to the supplementary counter affidavit dated 1.5.1997 -5.5.1997/7.5.1997 which proves that the opposite parties were in receipt of the petitioner's leave application although it has not been indicated as to whether such leave was approved or not.
Be that as it may, the bringing on record of the petitioner's leave application by the opposite parties clearly proves that the opposite parties had complete knowledge of the petitioner being on leave and therefore there was no occasion for the opposite parties to have deemed the petitioner absconder thereby vitiating the first enquiry proceedings initiated vide charge sheet dated 14.10.1993 as also for the fact that the first enquiry proceedings were never concluded prior to the petitioner's superannuation nor was any permission sought or granted for conclusion of the said proceedings subsequent to petitioner's superannuation.
So far as the enquiry proceedings against the petitioner are concerned, the opposite parties has been unable to explain as to under what circumstances and under which provision of law the second charge sheet was issued to the petitioner on 16.6.1998 when enquiry proceedings were already pending in pursuance of the first charge sheet dated 14.10.1993. There is no material on record to indicate that any permission of this Court was ever taken before issuance of the second charge sheet. A perusal of the second charge sheet also does not indicate the fate of the earlier enquiry proceedings or that the charge sheet dated 14.10.1993 had been recalled. In the absence of any such permission or approval of this Court for the second charge sheet, it can be said that the said second charge sheet is vitiated and was bad in law.
Even with regard to the second charge sheet, it has been specifically admitted in paragraph 9 of the supplementary counter affidavit dated 5.5.2001 that no enquiry report in pursuance of the charge sheet dated 16.6.1998 was ever submitted and that the said enquiry proceedings were not concluded prior to superannuation of the petitioner on 31.3.2001. It is the admitted case of the parties that after rejoining service on 13.12.1997, the petitioner continuously worked on his post till the date of his superannuation.
In view of the above, I am of the view that the order dated 4/5 October, 1993 and the charge sheet dated 14.10.1993 are bad in law and the enquiry proceedings initiated by the second charge sheet dated 16.6.1998 are also illegal.
Sofar as it relates to arrears of salary is concerned, Hon'ble the Supreme court has held in Commissioner, Karnataka Housing Board v. C.Muddaiah(supra) that when a person is entitled to certain benefits which were not given to him and his representations have been illegally and unjustifiably turned down and when the court is convinced that gross injustice has been done to him then it is not open for the employer or the authorities to urge that he can not be granted benefits merely because he has not worked. It was further held that upholding of such a plea would amount to allowing a party to take undue advantage of his own wrong and would perpetrate injustice rather than doing justice to the process wrong. Relevant paragraphs of the aforesaid judgments are reproduced as under:-
" 33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged.
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."
In Deepali, Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and others reported in 2013(10) SCC page 324, the primary dispute was whether the appellant was entitled to wages for the period during which she was forcibly kept out of service by the management/school in which the judgment of Three Judge Bench of the Hon'ble Supreme Court in the case of Hindustan Tin Works(P) Limited versus Employees [1979(2) SCC page 80] was followed with the approval and it was held that the relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid and once the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying wages which the workman has been deprived of by the illegal or invalid action of the employer. It was further held that ordinarily a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. Any other view would be a premium on the unwarranted litigative activity of the employer and in such circumstances, reinstatement being the normal rule, it should be followed with full back wages as is the purpose and import of Articles 41 and 43 of the Constitution of India. In paragraph 38 of the said judgment, the proposition of law regarding reinstatement with full back wages have been fully laid down which are as follows:-
"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 averments 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 victimizing the employee or workman, then the concerned Court or Tribunal 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 be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give 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 finalization 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 Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).
38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) 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. This part of the judgment is also against the very concept of reinstatement of an employee/workman. "
The aforesaid judgments have been followed with approval in the subsequent judgments of Raghubir Singh v. General Manager, Haryana Roadways, Hissar reported in 2014(10) SCC page 301 and Raj Kumar v. Director of Education and others reported in 2016(6) SCC page 541.
A perusal of the aforesaid judgments clearly indicates the fact that once the action of the employer has been found to be illegal or invalid, reinstatement with full back wages is the natural consequence primarily because it restores an employee to the position which he held before such action was taken against him and to mitigate the injuries suffered by him due to such illegal action taken against him. Furthermore, non grant of back wages in cases such as that of the petitioner, would amount to granting of benefit to the opposite parties for their own wrong and would also amount to unjust enrichment of a party which has committed wrong.
It is also relevant factor that the petitioner is engaged in litigation against a completely illegal and void order since long, as a consequence of which he has not been paid his regular salary since then. Had the petitioner been paid his regular salary along with admissible emoluments for this period, it was but natural that after spending a portion of said salary, he would have saved a part of it which naturally would have brought him further an amount in the nature of interest on such capital but, due to the existence of the punishment order, the petitioner was not only deprived of his capital source i.e. his salary but also the interest from savings on such capital. Although the rate of interest admissible on savings even in nationalized banks prior to the year 2000 was more than 10% per annum but in view of the provisions of Code of Civil Procedure, 1908 and the Interest Act, 1978, I am of the view that the petitioner should be entitled to at least 10% per annum owing to the fact that the petitioner would have definitely spent a major part of his salary for personal expenditure.
In the result the petition is allowed and the orders dated 4/5 October, 1993 and the charge sheet dated 14.10.1993 are quashed as are the enquiry proceedings initiated in pursuance of the charge sheet dated 16.6.1998. A writ in the nature of mandamus is issued to the opposite parties to pay arrears of salary, increments and allowances as revised from time to time with effect from 9.5.1981 to 31.3.2001 with interest at the rate of 10% per annum. It is further directed that the final pension of the petitioner is to be fixed keeping in view the revision in salary and allowances and also for payment of arrears of such pension, Provident Fund, gratuity, leave encashment and other post-retirement benefits, with interest @ 10% per annum till date of actual payment, within a period of six months from the date a copy of this order is produced before the opposite parties.
(Manish Mathur,J.) Order Date :- 18.12.2018 kvg/-