Allahabad High Court
Dr. Manoj Kumar Sharma vs State Of U.P. Thru Prin.Secy. Medical & ... on 7 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1636, 2020 (1) ALJ 507 (2019) 9 ADJ 281 (ALL), (2019) 9 ADJ 281 (ALL)
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 26 Case :- SERVICE SINGLE No. - 14165 of 2019 Petitioner :- Dr. Manoj Kumar Sharma Respondent :- State Of U.P. Thru Prin.Secy. Medical & Health & Ors. Counsel for Petitioner :- Anuj Kudesia Counsel for Respondent :- C.S.C. Hon'ble Jaspreet Singh, J.
1. This is the third round of litigation between the petitioner and the respondents and as the facts would witness, it appears that the respondents have drawn the petitioner into the successive litigation despite the fact that the core issues were settled by a Division Bench of this Court in the first Writ Petition filed by the petitioner bearing W.P. No. 1039 (SB) of 2016 which was decided on 26.09.2016. However, despite findings recorded in the aforesaid judgment, the same has been ignored by the respondents which has necessitated the institution of the instant writ petition.
2. In order to appreciate the controversy certain background facts are being noted hereinafter, first:-
3. That the petitioner had joined as a Medical Officer after being selected by the Uttar Pradesh Public Service Commission in Provincial Health Services, U.P. as a surgeon in the General Category and was posted in District Pilikhi. After the re-organization of the State of U.P. a new State of Uttarakhand was formed and accordingly options were invited from the employees who were working in the State of U.P. The petitioner in furtherance of the aforesaid, opted for the State of U.P. which was duly considered by the State of Uttarakhand and it was decided to relieve the petitioner from State of Uttarakhand to serve in the State of Uttar Pradesh.
4. The petitioner was relieved on 05.07.2003 with immediate effect from the State of Uttarakhand and was relieved by the Chief Medical Superintendent, Uttar Kashi vide order dated 12.09.2003. The petitioner served the aforesaid orders on the respondent-department requesting a posting in the State of U.P. in the District Saharanpur or some nearby district. It appears that the respondent no. 3 wrote to the State of U.P. for taking a decision on the posting of the petitioner, however, no action was taken. The petitioner made repeated representations, however, no action was taken by the State Government as a result, the petitioner had to knock the doors of this Court by instituting W.P. No. 1039 (S/B) of 2006.
5. In the aforesaid mentioned writ petition, the crux of the controversy was regarding the posting of the petitioner. The defence taken in the above writ petition was to the effect that the petitioner was given posting at District Badayun by means of posting order dated 06.03.2002 and thus, it was contended by the respondents that since the petitioner had not complied with the posting order dated 06.03.2002, therefore, the petitioner was not entitled to claim any benefit on account of his non-joining. It was also a plea taken by the respondent-department that the petitioner wanted to be posted at Saharanpur or a nearby district and though the petitioner was posted at Badayun, he deliberately did not join and kept representing to the department and as such the petitioner was not entitled to any benefit.
6. However, after due contest in the aforesaid writ petition, a Division Bench of this Court noted that the respondent- State and the Department were callous in contesting the writ petition, inasmuch as, the petition was instituted in the year 2006, whereas the counter affidavit came to be filed only on the 22.09.2016 i.e. about ten years since the filing of the writ petition. The Court also took note of the fact that though a plea was raised that a posting order dated 06.03.2002 was passed, posting the petitioner at Badayun, however, the entire counter affidavit was silent regarding the fact that as to how, when and in what manner the said posting order was served upon the petitioner. The Division Bench found that the alleged posting order dated 06.03.2002 was not served on the petitioner and it also noted that the action of the State Government was not justiciable and consequently noticing the callous attitude of the State Government a cost of Rs. 50,000/- was imposed while allowing the writ petition by means of judgment dated 26.09.2016. The relevant portion of the judgment reads as under:-
"We have gone through the counter affidavit and in the counter affidavit though it has been stated in very clear and distinct terms that the petitioner was posted to District Badaun, but the counter affidavit is silent as to in what manner the said office memorandum or the posting order was served upon the petitioner.
A contention has also been raised by the learned Chief Standing Counsel that the petitioner did not join at Badaun as he wanted posting nearer to his home district, namely, Saharanpur.
The aforesaid contention is not supported by any letter of the petitioner. The petitioner has given a letter to the Director General, Medical and Health Services and the same was taken into consideration and thereafter, Sri K. N. Mehrotra, Joint Director (Karmik) issued a letter on 19.9.2003 to the Special Secretary, Government of U.P. making a request to the Government that adequate posting orders in respect of the petitioner's posting may be passed. The said letter is not denied by the learned Chief Standing Counsel to be received by the Government. The said letter had been received and it was incumbent upon the State Government to have acted on the basis of the aforesaid letter and passed a posting order in respect of the petitioner. It appears that the Medical Directorate was also not aware of the posting order dated 6th March, 2002, which is sought to be heavily relied upon by the learned Chief Standing Counsel. Had that been the position, the Director General while referring the matter to the State Government on 19.9.2003 would have specifically referred the Office Memorandum dated 6th March, 2002 by means of which the petitioner was posted in District Badaun It appears that some exercise was undertaken in regard to the posting of certain Doctors from the State of Uttarakhand to State of U.P. By virtue of that exercise, which finally matured on 6th March, 2002, 208 Male Medical Officers and 5 Dental Medical Officers were relieved for State of U.P. The petitioner has also placed relieving order dated 12.9.2003. After the petitioner was relieved on 12.9.2003, it was incumbent upon the State Government or the Director General, Medical and Health Services to have served the posting order dated 6th March, 2002 upon the petitioner. The State Government has not come forward with a case that the said posting order was served upon the petitioner at Uttarkashi or in Uttarakhand. No evidence has been brought on record to indicate that the posting order was served upon the petitioner after he joined in the office of the Director General, Medical and Health or at any point of time earlier to it. In absence of any service of the posting order upon the petitioner at any point of time either after 19.9.2003 or prior to it, it cannot be said that the petitioner has refused to join and therefore, he cannot take the benefit of non-joining on the post in question.
It is to be noted that the petitioner after being relieved from District Hospital Uttar Kahsi vide order dated 12.9.2003 served the order dated 12.9.2003 upon the Director General, Medical and Health, Lucknow to post him in the State of U.P. The petitioner by his representation requested the opposite parties to post him in any district. On the aforesaid representation, Joint Director, (Karmik), Medical Health wrote a letter on 19.9.2003 to the State of U.P. to take decision regarding posting of the petitioner, but no action was taken to post the petitioner in any hospital. Thereafter, the petitioner made repeated representations before the Director General, Medical and Health Services on 17.11.2003, 25.2.2004, 10.9.2004, 11.5.2006, 7.2.2005 and 10.6.2005 stating therein that he had submitted his joining report on 18.9.2003 and proposal to post him had been sent to the State Government, but no action was taken and the petitioner was running from pillar to post. When nothing was done, then writ petition was field in the year 2006. The State Government was so callous and negligent in pursuing the case that counter affidavit was not filed up till 21st September, 2016. The counter affidavit has been filed on 22nd September, 2016 when the Court has taken a strict view in the matter. The manner in which the State Government is contesting the cases in the Court cannot be appreciated and the attitude of the Government in not filing counter affidavit for long is also disapproved by this Court.
No decision has been taken or brought on record by the learned Chief Standing Counsel in pursuance to the letter dated 19.9.2003 issued by Sri K. N. Mehrotra, Joint Director (Karmik) to the Special Secretary, Government of U.P. Even assuming that there was posting order, if the letter dated 19.9.2003 was written by the Director General, Medical and Health Services, then the Government could have informed the petitioner then and there that the petitioner should join at Badaun as his posting orders have already been issued on 6th March, 2002. Nothing was done by the State Government and the State Government sat tight over the matter. Neither any order was issued in respect of the petitioner nor the petitioner was informed that he should join at Badaun nor any posting order was served upon him after he was relieved from Uttarakhand on 12.9.2003.
Learned Chief Standing Counsel has placed reliance upon the judgment rendered by the Apex Court in the case of S. C. Saxena v. Union of India and others, (2006) 9 SCC 583, wherein issue in regard to compliance of transfer order was considered by the Apex Court. The facts in the aforesaid case were that the Government Servant did not join in pursuance to the transfer order, which was duly communicated and served upon the employee. Here, the case is altogether different. The posting order or the transfer order has never been communicated or served upon the petitioner at any point of time, therefore, the case law relied upon by the learned Standing Counsel is not applicable in the facts and circumstances of the present case.
The aforesaid conduct of the State Government in dealing with its officers is not happy state of affair. The State Government should have acted with responsibility and should have been quick enough to take a decision in the matter. The State Government has been sitting tight over the matter since 2006 when the writ petition was filed. Action of the State Government, therefore in these circumstances, cannot be justified and neither the State Government can take benefit of the posting order issued on 6th March, 2002. We are therefore of the view that a heavy cost is required to be imposed upon the State Government for approaching in such a callous manner.
We accordingly impose a cost of Rs.50,000/- upon the State Government. The State Government will deposit the cost before this Court within fifteen days, which shall be transferred to the Mediation Centre of this Court.
Further, a writ in the nature of mandamus is issued to the State Government to issue a posting order in respect of the petitioner within the aforesaid period.
Question of back wages is left open in the present writ petition."
7. Significantly, the aforesaid judgment passed by the Division Bench of this Court dated 26.09.2016 attained finality, inasmuch as, the State or the Department did not assail the said judgment before the Apex Court. Be that as it may, in furtherance of the decision dated 26.09.2016, the petitioner was given a posting and was attached with the Chief Medical Officer, Muzaffarnagar by means of the order dated 26.12.2016. In furtherance thereof, the petitioner joined by means of his joining letter dated 28.12.2016. However, the issue regarding back wages was left open in the writ petition as also evident from the judgment dated 26.09.2019.
8. The petitioner, thereafter made a representation to the Department regarding his entitlement of back wages as well as the fact that since persons junior to the petitioner had been posted on Level IV post. Thus, the petitioner was entitled to be posted accordingly apart from the other admissible service benefits by treating the petitioner to be in continuous service from 05.07.2003 to 28.12.2016. Since no decision was taken in respect of the aforesaid issues, the petitioner yet again preferred Writ Petition bearing No. 29049 (S/B) of 2017.
9. The said Writ Petition came to be disposed of by means of the order dated 01.12.2017, wherein it was directed that the respondent-department shall consider the the grievances of the petitioner within a period of four weeks from the date a certified copy of the order is placed before the authorities concerned with a liberty to the petitioner to make a fresh representation raising all his grievances alongwith the certified copy of the said order. The relevant portion of the order dated 01.12.2017 reads as under:-
"Considering the submissions of the learned counsel for the parties, the writ petition is disposed of with a direction to the opposite party no.1 to consider the grievance of the petitioner and take a decision within a period of four weeks from the date of production of certified copy of this order and make the payment of the admissible and other service benefits to the petitioner forthwith.
Liberty is granted to the petitioner to make a fresh representation raising all his grievances alongwith the certified copy of this order."
10. Though the issue regarding the non-posting of the petitioner was decided by the Division Bench of this Court by means of order dated 26.09.2016. However, the department issued an office memorandum dated 08.02.2018 by which they proposed to initiate departmental inquiry against the petitioner on the same ground of non-joining. The petitioner assailed the same by means of a Contempt Petition No. 1366 of 2018. Before the Contempt Court, it was informed that the office memorandum dated 08.02.2018 had been cancelled by means of order dated 29.05.2018. Since the order dated 29.05.2018 by which the office memorandum dated 08.02.2018 was cancelled and it was brought on record of the Contempt Court. Accordingly, considering the aforesaid, the Contempt Petition was disposed of.
11. In the meantime, since the representation which was required to be decided within a period of four months in terms of the order dated 01.12.2017 had not been decided. Thus, the petitioner was compelled to institute another Contempt Petition bearing No. 2958 of 2018, the same came to be disposed of by means of order dated 01.03.2019 as an affidavit of compliance was submitted before the Contempt Court indicating that by means of office memorandum dated 27.02.2019, the grievances of the petitioner had been considered and it was decided that the petitioner's absence from 05.07.2003 to 09.12.2016 be regularized as extra ordinary leave without pay. Since the aforesaid order had been passed, consequently the Contempt Petition was disposed of.
12. It is this order dated 27.02.2019 which has been assailed in the instant writ petition. The primary contention of Sri Anuj Kudesia, learned counsel for the petitioner is that the ground taken in the office memorandum dated 27.02.2019 treating the absence as extra ordinary leave without pay is based on the same ground and reasoning which was raised by the department in the earlier Writ Petition No. 1039 (S/B) of 2006.
13. It is submitted that since the writ petition aforesaid was allowed in favour of the petitioner with finding recorded in his favour. Thus, it was not open for the department to rake up the same issue and deny the benefit which was legally admissible to the petitioner. It has been much stressed upon that once it was concluded in the aforesaid Writ Petition No. 1039 (S/B) of 2006 that the non-posting of the petitioner from 05.07.2003 to 28.12.2016 was an occurrence for which the petitioner was not responsible and it was solely on account of the callousness and inaction of the State Government. Thus, once such findings had been recorded in the earlier writ petition, hence now, it was not open for the department or the State Government to take the same ground to deny the admissible benefits to the petitioner especially when the order dated 26.09.2016 was never assailed by the respondents and had attained finality.
14. Sri Kudesia has relied upon the decision of the Apex Court in the case of Union of India and Others Vs. K.V. Jankiraman and Others reported in 1991 (4) SCC 109, State of Kerala and Others Vs. E.A. Bhaskaran Pillai 2007 (6) SCC 524 and Shobha Ram Ratauri Vs. Haryana Vidyut Prasaran Nigam Ltd. and Others 2016 (16) SCC 663. On the strength of the aforesaid decision, it has been urged by Sri Kudesia that where the conduct of the petitioner was not found blameworthy and it was held that the non-posting of the petitioner was on account of the callousness of the respondents, thus, the decision taken by the respondents to treat the period between 05.07.2003 to 28.12.2016 as extra ordinary leave without pay was not justified, inasmuch as, the petitioner was not responsible for the situation and there was no material on record by which it could be ascertained that the petitioner in any manner was responsible for not joining. Since the occurrence was an outcome of the negligence of the respondents, accordingly, the principle of ''no work no pay' was not applicable in the present facts and circumstances and as held by the Apex Court that the aforesaid principle of ''no work no pay' was was not a thumb rule. Accordingly, in the present facts and circumstances, the petitioner was entitled to the relief as prayed including the arrears of salary, the service benefits of being promoted to Level IV Post as similarly situate persons who have already been promoted to the aforesaid Level - IV Post along with all the other admissible service benefits treating the service of the petitioner from 05.07.2003 to 28.12.2016 as in continuous service.
15. Per contra, the learned Standing Counsel has tried to justify the office memorandum dated 27.02.2019. It has been much vehemently argued by the learned Standing Counsel stating that it was the petitioner who was responsible for the entire debacle, inasmuch as, he had approached the department for seeking his posting in his home district of Saharanpur. When the aforesaid posting was not granted, it was not expected of the petitioner to have represented before the department for years together and only as late as in the year 2006, he instituted the earlier Writ Petition bearing No. 1039 (S/B) of 2006.
16.It has further been urged that considering the facts and circumstances, where the petitioner had not worked for the period between 2003 to 2016 and taking note of the extra ordinary circumstances, coupled with the essence and the letter and spirit of the judgment passed by this Court dated 26.09.2016 and relying upon the relevant provisions in the Financial Hand Book Volume - II, Part 2 to 4, Rule 18 read with Rule 81 (b-5) and Rule 85, a conscious decision was taken that the aforesaid leave be treated as extra ordinary leave without pay. In so far as the other issues raised by the petitioner was concerned, it was found that all other benefits available to the petitioner would be considered for which necessary directions were issued. Thus, it was urged that the above writ petition lacked merit especially in view of the fact that the petitioner himself has not worked for the period between 05.07.2003 to 09.12.2016. It has also been urged that the decisions relied upon by learned counsel for the petitioner was not attracted in the present facts and circumstances, inasmuch as, the issue regarding no work no pay was clearly attracted in the present circumstances and accordingly the petitioner could not be granted the benefit of the arrears of salary for the period from 05.07.2003 to 09.12.2016 and moreover in light of the circumstances and decisions of the Apex Court wherein it has been held that grant of full back wages is not automatic or mechanical only because the posting order was found to be not served upon the petitioner. Accordingly, it was not open for the petitioner to have claimed the arrears of salary and as such the writ petition be dismissed.
17. The Court has heard the learned counsel for the respective parties at length and also perused the record meticulously.
18. From the perusal of the impugned order dated 27.02.2019, it would indicate that the office order is based primarily treating the absence of the petitioner from 05.07.2003 to 09.12.2016 as an outcome of the negligence or inaction of the petitioner. It is reflected in the impugned order that the Principal Secretary while issuing the office memorandum has clearly dwelled upon the issue regarding the non-joining of the petitioner. It has relied upon the fact that the petitioner was given a joining on 06.03.2002 and since the petitioner himself did not join, accordingly, it was found that he was not entitled to any arrears of salary and in the aforesaid circumstances after taking legal advice from the Finance Department as well as the Legal Department, the office memorandum has been issued treating the period of 05.07.2003 to 09.12.2016 as extra ordinary leave without pay.
19. Considering the facts and circumstances and also from the perusal of the impugned order, this Court finds, primarily what has prevailed in the mind of the authority is the same issue of non-joining which was categorically determined and decided by a Division Bench of this Court in W.P. No. 1039 (S/B) of 2006 decided on 26.09.2016. It is not disputed that the judgment dated 26.09.2016 has attained finality and the learned Standing Counsel could not dispute the fact that the no Special Leave Petition was filed against the said order. It is also not disputed by learned Standing Counsel that while issuing the posting order dated 09.12.2016, posting the petitioner in District Muzaffarnagar attached with the office of the Chief Medical Officer, it was clearly made known that the aforesaid posting was subject to the final order to be passed by the Hon'ble Supreme Court and shall be subject to the outcome of the Special Leave Petition. A copy of the aforesaid order dated 09.12.2016 is annexed as Annexure No. 11 with the writ petition.
20. However, the fact remains that the aforesaid judgment dated 26.09.2016 was not assailed by filing a Special Leave Petition. The petitioner has made categorical assertions in his writ petition as well as in the rejoinder affidavit stating that no Special Leave Petition has been filed by the State against the judgment dated 26.09.2016 and as indicated above this fact has not been disputed or denied by the State counsel.
21. That once the order dated 26.09.2016 attained finality and there was no challenge to the same, thus, the issues and the findings in the aforesaid writ petition could not be in the domain of the respondents to challenge indirectly by issuing the impugned office memorandum dated 27.02.2019. It is no more res-integra that what cannot be done directly cannot be done indirectly either. In the present facts and circumstances, the issue regarding the fact of the petitioner not being able to join between 05.07.2003 to 09.12.2016 was the core issue in the earlier writ petition decided on 26.09.2016. The Division Bench of this Court while deciding and allowing the aforesaid writ petition had categorically noticed that the State was unable to establish the fact that the alleged joining order dated 06.03.2002 was ever served or communicated to the petitioner. This Court has already re-produced the relevant portion of the aforesaid judgment and thus, it is evident that the reason indicated in the office memorandum dated 27.02.2019 is the same which stood decided in the earlier writ petition in favour of the petitioner.
22. This Court is of the considered view that once the judgment dated 26.09.2016 had attained finality, it was not open for any interpretation for the respondents and it was binding and was required to considered in its true letter and spirit. It was not open for the department to read something into the judgment which was not present and after having failed to challenge the said judgment, now when it was the turn to provide the necessary benefits to the petitioner, it was not open to the department to rely upon the same reasoning which had already been turned down by the Division Bench of this Court to deny the service benefits including the arrears of salary.
23. The Apex Court in the case of K.V. Jankiraman (Supra) has laid the principle in the following words:-
"23.There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post. It was urged on behalf of the appellant-authorities in all these cases that a person is not entitled to the salary of the post unless he assumes charge of the same. They relied on F.R. 17(1) of the Fundamental Rules and Supplementary Rules which reads as follows:
"F.R. 17. (1) Subject to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties:
Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence."
24. It was further contended on their behalf that the normal rule is "no work no pay". Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed under suspension, When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly.
25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "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."
24. The aforesaid proposition has further been retreated upon by the Apex Court in the case of E.K. Bhaskaran Pillai (Supra) in the following words:-
4. Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15-6-1972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ramkrishnaiah v. Union of India [(1989) 2 SCC 541 : 1989 SCC (L&S) 375] , Virender Kumar v. Avinash Chandra Chadha [(1990) 3 SCC 472 : 1991 SCC (L&S) 62 : (1990) 14 ATC 732] , State of Haryana v. O.P. Gupta [(1996) 7 SCC 533 : 1996 SCC (L&S) 633] , A.K. Soumini v. State Bank of Travancore [(2003) 7 SCC 238 : 2003 SCC (L&S) 1041] and Union of India v. Tarsem Lal [(2006) 10 SCC 145 : (2007) 1 SCC (L&S) 63] . As against this, the learned counsel for the respondent has invited our attention to the decisions given by this Court in Union of India v. K.V. Jankiraman [(1991) 4 SCC 109 : 1991 SCC (L&S) 387] , State of A.P. v. K.V.L. Narasimha Rao [(1999) 4 SCC 181 : 1999 SCC (L&S) 841] , Vasant Rao Roman v. Union of India [1993 Supp (2) SCC 324 : 1993 SCC (L&S) 590 : (1993) 24 ATC 363] and State of U.P. v. Vinod Kumar Srivastava [(2006) 9 SCC 621 : 2006 SCC (L&S) 1940] . We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle "no work no pay" cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also."
25. The aforesaid principle has further been considered by the Apex Court in the case of Shobha Ram Raturi (Supra) in the following words:-
"Having given out thoughtful consideration to the controversy, we as satisfied, that after the impugned order of retirement dated 31.12.2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilized the services of the appellant for the period from 01.01.2003 to 31.12.2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 01.01.2003 to 31.12.2005, the respondent cannot be allowed to press the self-serving plea of denying him wages for the period in question, on the plea of the principle of "no work no pay"."
26. However, before giving any categoric finding on the issue this Court considers it appropriate to refer to certain decisions of the Apex Court on the issue of grant of back wages. In several cases the Apex Court has held that payment of back wages is a discretionary power which has to be exercised by a court keeping in view the facts in their entirety and neither straitjacket formula can be evolved nor a rule of universal application can be laid down in such cases. Thus, reinstatement does not necessarily result in payment of back wages which would be independent of reinstatement. While dealing with the prayer of back wages, factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate court.
27. In C.N. Malla V. State of J & K reported in 2009 (9) SCC 597, The Apex Court held as under:-
"11. The legal position is fairly settled by a catena of decisions that direction to pay back wages in its entirety is not automatic consequent upon declaration of dismissal order bad in law. The concept of discretion is inbuilt in such exercise. The court is required to exercise discretion reasonably and judiciously keeping in view the facts and circumstances of the case. Each case, of course, would depend on its own facts."
28. The Hon'ble Supreme Court of India while considering the question of grant of back wages in the case of U.P. State Brassware Corpn. Ltd. and Another Vs. Uday Narain Pandey reported in 2006 (1) SCC 479 reviewed large number of authorities on the said point and held that the Courts must take such decisions which would be in consonance with the purpose the law seeks to achieve. The relevant portion reads as under:-
42. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance.
43. The changes brought about by the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident.
In Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya [(2002) 6 SCC 41 : 2002 SCC (L&S) 818] this Court noticed Raj Kumar [(2001) 2 SCC 54 : 2001 SCC (L&S) 365] and Hindustan Tin Works [(1979) 2 SCC 80 : 1979 SCC (L&S) 53 : (1979) 1 SCR 563] but held: (SCC p. 45, para 16) "16. As already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatsoever on the aspect whether the respondent was employed elsewhere during this long interregnum. Instead of remitting the matter to the Labour Court or the High Court for fresh consideration at this distance of time, we feel that the issue relating to payment of back wages should be settled finally. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of this particular case including the vicissitudes of long-drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement."
45. The Court, therefore, emphasised that while granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages, therefore, cannot be the natural consequence.
46. To the same extent are the decisions of this Court in Indian Rly. Construction Co. Ltd. v. Ajay Kumar [(2003) 4 SCC 579 : 2003 SCC (L&S) 528] and M.P. SEB v. Jarina Bee [(2003) 6 SCC 141 : 2003 SCC (L&S) 833] .
47. The said decisions have recently been considered and followed in U.P. State Textile Corpn. Ltd. v. P.C. Chaturvedi [(2005) 8 SCC 211 : 2005 SCC (L&S) 1108] .
48. Lahoti, J., as the learned Chief Justice then was, in S.M. Nilajkar v. Telecom District Manager [(2003) 4 SCC 27 : 2003 SCC (L&S) 380] opined: (SCC p. 40, para 18) "18. The fact remains that there was delay, though not a fatal one, in initiating proceedings calculating the time between the date of termination and initiation of proceedings before the Industrial Tribunal-cum-Labour Court. The employee cannot be blamed for the delay. The learned Single Judge has denied the relief of back wages while directing the appellants to be reinstated. That appears to be a just and reasonable order."
49. In Rattan Singh v. Union of India [(1997) 11 SCC 396 : 1998 SCC (L&S) 170] the Court directed payment of a consolidated sum of Rs 25,000 in lieu of back wages and reinstatement having regard to the time lag between the date of termination and the date of the order.
50. In Ruby General Insurance Co. Ltd. v. P.P. Chopra [(1969) 3 SCC 653] and Hindustan Steels Ltd. v. A.K. Roy [(1969) 3 SCC 513] this Court held that before granting reinstatement, the court must weigh all the facts and exercise discretion whether to grant reinstatement or to award compensation.
51. The said decisions were, however, distinguished in Mohan Lal v. Bharat Electronics Ltd. [(1981) 3 SCC 225 : 1981 SCC (L&S) 478] Desai, J. was of the opinion: (SCC p. 238, para 17) "17. ... But there is a catena of decisions which rule that where the termination is illegal, especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits. No case is made out for departure from this normally accepted approach of the courts in the field of social justice and we do not propose to depart in this case."
52. In Allahabad Jal Sansthan v. Daya Shankar Rai [(2005) 5 SCC 124 : 2005 SCC (L&S) 631] in which one of us was a party, this Court had taken into consideration most of the decisions relied upon by Mr Sangal and observed: (SCC p. 128, para 6) "6. A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can be granted or denied. The Labour Court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration. It is not in dispute that Respondent 1 herein was appointed on an ad hoc basis; his services were terminated on the ground of a policy decision, as far back as on 24-1-1987. Respondent 1 had filed a written statement wherein he had not raised any plea that he had been sitting idle or had not obtained any other employment in the interregnum. The learned counsel for the appellant, in our opinion, is correct in submitting that a pleading to that effect in the written statement by the workman was necessary. Not only no such pleading was raised, even in his evidence, the workman did not say that he continued to remain unemployed. In the instant case, the respondent herein had been reinstated from 27-2-2001."
53. It was further stated: (SCC p. 130, para 16) "16. We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realised that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at."
54. Yet again in G.M., Haryana Roadways v. Rudhan Singh [(2005) 5 SCC 591 : 2005 SCC (L&S) 716 : JT (2005) 6 SC 137] a three-Judge Bench of this Court in a case where the workman had worked for a short period which was less than a year and having regard to his educational qualification, etc. denied back wages although the termination of service was held to have been made in violation of Section 25-F of the Industrial Disputes Act, 1947 stating: (SCC p. 596, para 8) "A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration, is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year."
55. In A.P. SRTC v. Abdul Kareem [(2005) 6 SCC 36 : 2005 SCC (L&S) 790] while the Labour Court directed reinstatement with continuity of service of the respondent but without back wages, this Court denied even the continuity of service.
56. A Division Bench of this Court in M.L. Binjolkar v. State of M.P. [(2005) 6 SCC 224 : 2005 SCC (L&S) 827 : JT (2005) 6 SC 461] referring to a large number of decisions, held: (SCC p. 228, para 6) "6[7]. ... The earlier view was that whenever there is interference with the order of termination or retirement, full back wages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors and the Court has to weigh the pros and cons of each case and to take a pragmatic view."
57. In Madurantakam Coop. Sugar Mills Ltd. v. S. Viswanathan [(2005) 3 SCC 193 : 2005 SCC (L&S) 372] the quantum of back wages was confined to 50%, stating: (SCC p. 198, para 19) "19. ... It is an undisputed fact that the workman had since attained the age of superannuation and the question of reinstatement does not arise. Because of the award, the respondent workman will be entitled to his retiral benefits like gratuity, etc. and accepting the statement of the learned Senior Counsel for the appellant Mills that it is undergoing a financial crisis, on the facts of this case we think it appropriate that the full back wages granted by the Labour Court be reduced to 50% of the back wages."
29. Yet again the Apex Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others reported in 2013 (10) SCC 324 after reviewing the authorities culled out principles contained in Para 38 of the report which is reproduced as under:-..
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 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".
30. This has also been considered by the Apex Court in a recent pronouncement of Chief Regional Manager, United India Insurance Company Limited Vs. Siraj Uddin Khan in Civil Appeal No. 5390 of 2019 arising out of SLP (C) No. 174 of 2019 decided on 11.07.2019.
31. If the above noted principles as extracted above are applied to the present case it would be seen that the petitioner has nowhere in the writ petition pleaded or made an averment that the petitioner has not been gainfully employed. On the contrary the State-respondents in para 6 of the counter affidavit has raised a plea that the petitioner has been engaged in private practice and the same can be reflected from his tax returns.
32. It is no doubt that the burden to prove that the employee is gainfully employed is on the employer [see 2014 11 SCC 85] however apart from making an averment in its counter affidavit the State has not brought any document on record but it is equally true that the petitioner while filing its rejoinder affidavit has given a reply to para 6 of the counter affidavit of the State but it is conspicuously silent and there is no denial or reply to the plea of the respondent regarding the petitioner being engaged in private practice. Now considering the effect of the fact that there is no pleadings in the writ petition that the petitioner remained unemployed rather the respondent State has expressed that he was engaged in private practice. This averment of the State has not been denied nor any reply is given by the petitioner on this averment.
33. The Apex Court in the case of Mulin Sharma Vs. State of Assam and Others reported in 2016 (14) SCC 208 considered the aspect of back wages and held as under:-
"16. In view of the foregoing discussions, we are of the considered opinion that the concurrent finding of the courts below that the appellant herein is not entitled to back wages in the absence of any material on record that he remain unemployed during the entire period from 23.05.1998 to 16.08.1999 is correct. Even the learned counsel for the appellant herein has admitted before this Court that he was not allowed to perform his duties after obtaining his signature on 22.05.1998.
17. In the present facts and circumstances of the case, the appellant has not produced any material on record to prove that he being unemployed during that period and has not made out a case for grant of back wages for the aforesaid period. The appellant herein did not attend the school during that period and back wages cannot be granted to him for that period. He, however, should be reinstated in service and be given all other consequential benefits. Though he is not entitled to back wages, he is certainly entitled to an amount of Rs. 25,000, in addition to the amount granted by the High Court, for wrongful denial of service."
34. Thus, if the principles extracted above are applied and compared to the reasoning given in the office memorandum dated 27.02.2019 it would indicate that the impugned office memo is based solely on the ground and treating as if the petitioner himself was responsible for his non-joining. This ground apparently could not have been taken note of since this issue had already been categorically decided by a Division Bench of this Court and while allowing the writ petition of the petitioner, the Division Bench clearly noticed the inaction of the State Government and found that the State Government was responsible for the entire controversy and thus, the State Government cannot derive benefit of its wrong. The impugned office memorandum also indicates that the grounds which ought to have been taken note of while considering the issue of back wages especially as has been enumerated in the preceding paragraphs considering the law settled by the Apex Court have been completely ignored nor there is any reflection of germane considerations while passing the impugned order. Hence, it is clear that the impugned order being based primarily on the ground which earlier had not found favour with the Division Bench appears to have been passed mechanically and thus it cannot withstand the judicial scrutiny and is bad in the eyes of law.
35. In the totality of the facts and circumstances, this Court while noticing the harassment meted out to the petitioner as well as the fact that the petitioner was always willing to work and it was the apathy of the State Government which goaded the State Government not to take work from the petitioner and he was kept away from his service since the State Government did not give the joining and posting promptly. It has also been amplified in the Division Bench Judgment that the State Government had taken measures to harass the petitioner since it took 10 years for the State Government to file its counter affidavit and which was done only when the Division Bench had summoned the officer of the respondent and this shook the slumber of the State Government.
36. Significantly, this harassment did not stop even after the passing of the Division Bench judgment dated 26.09.2016, inasmuch as, after allowing of the writ petition the department sought to initiate departmental inquiry against the petitioner which only came to be withdrawn once the petitioner was compelled to institute the contempt proceedings before this Court.
37. Once again in light of the Division Bench Judgment, the benefits which the petitioner ought to have been granted were not considered which led the petitioner to file another writ petition wherein another Division Bench of this Court directed the respondents to decide his representation within a period of 4 months and even this was not done and it again prompted the petitioner to file another contempt petition. It is during the pendency of the aforesaid contempt proceedings that the impugned office memorandum was brought on record of the Contempt Court indicating the compliance.
38. Thus, from the perusal of the entire record, it can be discerned that the State Government has protracted the litigation and has caused harassment to the petitioner. It is not difficult to fathom that an employee who is out of work for more than 12 years, what kind of insurmountable difficulties he has to suffer along with his family especially when the source of funds dry up in absence of regular service. In these circumstances, the petitioner ought to be granted full back wages especially when it has already been held that the petitioner was not at fault.
39. Notwithstanding the aforesaid, this Court has to balance the equities in between the parties and considering the fact that the petitioner did not deny the plea of the respondent that he was gainfully employed even though the burden to prove the same was on the employer coupled with the fact that the respondent have only taken a bald plea in their counter affidavit and no positive evidence or document was placed on record to substantiate its plea.
40. Hence, taking a holistic view, this Court is of the opinion that ends of justice would be served if the petitioner is granted 50 % back wages for the period 05.07.2003 to 28.12.2016 treating the petitioner to be in continuous service. As far as the other consequential benefits, admissible under law, are concerned the respondents in the impugned order also admit that the same are to be given to the petitioner.
41. Thus, in the facts and circumstances as enumerated above, coupled with the law as traced, the writ petition deserves to be allowed. The office memorandum dated 27.02.2019 is quashed and set aside. The respondents are directed to calculate and pay 50 % of the back wages to the petitioner for the period 05.07.2003 to 28.12.2016 and complete the entire exercise of not only paying the aforesaid but also granting all the consequential benefits which the petitioner is entitled in accordance with law within a period of 4 months from the date a certified copy of this order is placed before the concerned Authority.
42. With the aforesaid, writ petition stands allowed in the aforesaid terms. However, there shall be no order as to costs.
[Jaspreet Singh, J.] Order Date:- 07.08.2019 Asheesh