Telangana High Court
M. Ravinder Rao vs Government Of A.P., Rep By Secretary, ... on 8 April, 2022
Author: P.Naveen Rao
Bench: P.Naveen Rao, G.Radha Rani
HONOURABLE SRI JUSTICE P.NAVEEN RAO
&
HONOURABLE DR. JUSTICE G.RADHA RANI
WRIT PETITION NO.26693 OF 2003
Date: 08.04.2022
Between:
M.Ravinder Rao s/o. Bhim Rao, Aged about 40 years,
Ex-Superintendent, Sub-Jail, Jagatial,
Karimnagar.
..... Petitioner
and
Government of A.P., rep.by its Secretary,
Home (Prisons) Department, Secretariat Building,
Hyderabad and others.
.....Respondents
The Court made the following:
PNR,J & Dr.GRR,J
WP No.26693 of 2003
2
HONOURABLE SRI JUSTICE P.NAVEEN RAO
&
HONOURABLE DR. JUSTICE G.RADHA RANI
WRIT PETITION NO.26693 OF 2003
ORDER:(per Hon'ble Sri Justice P.Naveen Rao) Petitioner recruited as Deputy Jailor and joined service on 01.04.1986. On 04.07.1995 he applied to grant leave on health grounds. By proceedings dated 11.07.1995, leave was sanctioned from 12.07.1995 to 31.07.1995. After expiry of leave, petitioner claimed to have applied for extension of leave. The submission of application for extension of leave and not granting leave are the sticky issues, on which the subsequent proceedings were set in motion. On 21.08.1995 charge memo was drawn and issued alleging that petitioner unauthorizedly absent from duty without prior sanction of leave. It is alleged that petitioner did not respond to the said charge memo.
2. On 11.12.1995 show-cause notice was issued narrating the events leading to the said show-cause notice and holding that he was found to be unauthorizedly absent for the period beyond 31.07.1995, disciplinary authority proposed to impose punishment of dismissal from service and called upon his explanation as to why said punishment should not be imposed. In response to this show-cause notice, by representation dated 01.01.1996, while explaining reasons for his absence beyond 31.07.1995, petitioner also stated that he applied for PNR,J & Dr.GRR,J WP No.26693 of 2003 3 extension of leave, that as his application for extension was not rejected, he assumed that leave was sanctioned and therefore it cannot be called as unauthorized absence. Though explanation was brief, he also sought two documents shown therein and requested additional time after the documents were supplied for more detailed explanation. According to the respondents, by letter dated 07.03.1996, documents sought by the petitioner were supplied, but he did not furnish further explanation. Having waited for considerable time, by orders dated 09.05.1996, order of dismissal from service was imposed. Appeal preferred by the petitioner was rejected by the appellate authority on 29.03.1997. The revision dated 07.07.1997 preferred before the Government is not acted upon by the Government.
3. In those circumstances, petitioner filed O.A.No.2116 of 2001 before the A.P.Administrative Tribunal. The Tribunal dismissed the said O.A., holding that as petitioner was unauthorizedly absent, and did not respond to the notices issued, the order of dismissal was validly passed. Further, since petitioner did not participate in the departmental proceedings, there was no need to supply copy of the report of the Enquiry Officer and that there was no violation of provisions of the Telangana State Civil Service (Classification, Control and Appeal) Rules, 1991 (for short, 'Rules, 1991') and accordingly affirmed the punishment imposed.
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4. Heard learned senior counsel Sri V.Ravi Kiran Rao for the petitioner and the learned Special Government Pleader for Home for respondents.
5. Learned senior counsel for petitioner made the following submissions:
(i) Since leave was sanctioned from 12.07.1995 to 31.07.1995 and petitioner applied for extension of leave, when extension application was not rejected and no memo was issued to the petitioner to join back to the duty, his absence after 31.07.1997 cannot be said as unauthorized.
(ii) Once decision was taken to initiate disciplinary action and more so, when disciplinary authority intend to impose major punishment of dismissal from service, procedure required by Rule 20 of the Rules, 1991 has to be strictly followed, even if no explanation is offered by the petitioner. Rule 20(5)(b) mandates conducting enquiry into the allegations of misconduct. In the instant case, no enquiry was conducted and there was no report of enquiry holding charge as proved.
(iii) He submits that the disciplinary authority cannot presume that the charge of unauthorized absence is deemed to have been established merely because petitioner did not respond to charge memo without even conducting enquiry and on the assumption/presumption disciplinary authority cannot hold petitioner guilty of misconduct.
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(iv) He further submits that though petitioner raised several grounds, appellate authority has not dealt with the grounds urged in the appeal and without assigning reasons rejected the appeal and, therefore, the order of appellate authority is also liable to be set aside on that ground alone.
(v) He further submits that Article 311 of the Constitution of India safeguards a permanent employee against being removed or dismissed from service without following due procedure. It is not a case of not reasonably practicable to hold enquiry to dispense with conducting of enquiry to dismiss the Officer on the allegation of unauthorized absence for few weeks.
(vi) He submits that there is clear violation of procedural requirements in imposing punishment at every stage vitiating the disciplinary action.
6.1. According to the learned Special Government Pleader, after completion of leave period, on 02.08.1995 telegram was sent to the petitioner directing him to report to duty. This telegram was returned saying that the addressee was not living in the village. Notices sent to the said address in the village were also returned un-served. According to the learned Special Government Pleader, telegram and notices were sent to the address available with the Department, but later conveniently petitioner has shown different address in his further PNR,J & Dr.GRR,J WP No.26693 of 2003 6 correspondence. This would show that he deliberately and wilfully avoided receiving the telegram and notices and remained unauthorizedly absent till charge memo was drawn and subsequently also. Therefore, his conduct in not reporting to duty after expiry of leave, not responding to the telegram and notices, would amount to deliberate and wilful disobedience of the orders of the superior authority and wilful and deliberate unauthorized absence. Leave granted to him expired on 31.07.1995 and since no leave was granted for subsequent period, it was mandatory for him to report to duty and subject himself to medical examination and then only he could have asked for extension of leave.
6.2. Learned Special Government Pleader though fairly submits that the procedure prescribed by Rule 20 was not observed, but the conduct of the employee is also relevant to consider and in the facts of the case, when it is glaring that he remained unauthorizedly absent after expiry of leave period, the conclusion arrived at by the disciplinary authority cannot be faulted.
6.3. He would submit that even assuming that disciplinary action is vitiated due to non-compliance of procedural requirements, ordinarily the matter should be remitted to conduct disciplinary proceedings. At any rate, while granting relief the aspect of petitioner deliberately not acknowledging the notices and deliberately not reporting to duty after PNR,J & Dr.GRR,J WP No.26693 of 2003 7 expiry of leave, require consideration to assess the conduct of the petitioner.
6.4. He would submit that the petitioner has rendered only short service before he was removed from service. Therefore, he is not entitled to back-wages. In support of his contention, learned Special Government Pleader placed reliance on the decisions of Hon'ble Supreme Court in Allahabad Bank and others Vs. Krishan Pal Singh1 and Pradeep Vs. Manganese Ore (India) Limited and others2.
7. We have gone through the record placed before us. From the material on record it is seen that by proceedings dated 11.07.1995, leave for 20 days was granted, which expired on 31.07.1995. As can be seen from the letter addressed by the District Sub-Jails Officer, Karimnagar to the Superintendent of Osmania General Hospital, Hyderabad on 07.11.1995, petitioner applied for extension of leave initially upto 31.08.1995 and later further period upto 31.10.1995. The District Sub-Jails Officer entertained a doubt whether leave sought by the Officer can be considered as the total period of Commuted Leave on medical grounds exceeded 90 days. He therefore requested the Superintendent of Osmania General Hospital to examine the petitioner on his health status and furnish his opinion. Further, Superintendent of Osmania General Hospital issued letter dated 18.11.1995 to the 1 2021 SCC ONLINE SC 751 2 [Civil Appeal No.7607 of 2021 (arising out of SLP (C) No.21346 of 2017)].
PNR,J & Dr.GRR,J WP No.26693 of 2003 8 petitioner directing him to appear before the Medical Board on 30.11.1995.
8. While on the one hand, immediate superior officer was directing the petitioner to subject himself to medical examination to consider his application to extend leave, within few days from the date of alleged absence from duty, a charge memo was drawn alleging unauthorized absence. No reasons are assigned why this course was adopted even in the counter-affidavit. It is also interesting to notice that even after the show-cause notice issued proposing to dismiss the petitioner from service, the District Sub-Jails Officer vide his letter dated 16.04.1996 requested the Superintendent of Osmania General Hospital to inform what happened on the medical examination aspect of the petitioner and if no medical examination was conducted to examine the petitioner and furnish his opinion. In response to this, the Superintendent has issued letter dated 03/04.05.1996 calling upon the petitioner to appear before the Medical Board on 15.05.1996. That being so, on 09.05.1996 the order of dismissal from service was passed.
9. In the instant case, Court noticed serious infirmities, which vitiate the entire disciplinary proceedings leading to punishment of dismissal from service, as noted hereunder:
(i) As rightly contended by the learned senior counsel for petitioner, whenever a decision is taken by the disciplinary authority to conduct disciplinary action, which may result in imposing a major PNR,J & Dr.GRR,J WP No.26693 of 2003 9 punishment, Rule 20 of the Rules require observance of detailed procedure. Rule 20 opens with "No order imposing any of the penalties specified in clause (vi) to (x) of Rule 9 shall be made except after an inquiry held, as far as may be, in the manner provided in this Rule and Rule 21". Punishment of dismissal from service is specified in Rule 9(x). According to sub-rule (5), if no written statement is submitted by the delinquent employee, the disciplinary authority can enquire into articles of charge or he may appoint an enquiry officer to conduct enquiry as specified in Rule 20. Sub-rule (6) also deals with the situation where the delinquent employee does not participate in the enquiry and authorizes the disciplinary authority to conduct ex parte enquiry. Thus, even if employee did not offer his explanation to charge memo and/or did not participate in the enquiry, it is mandatory to conduct enquiry, as required by Rule 20, into allegations of misconduct, more particularly when the disciplinary action would result in imposing punishment of dismissal from service.
(ii) After enquiry is completed, as required by Rule 21, report of enquiry officer has to be furnished to the delinquent employee, call for explanation and on due consideration of the explanation, if any offered, final order of punishment can be passed. No enquiry was conducted.
On the ground that employee did not submit explanation, the disciplinary authority holds petitioner guilty of unauthorized absence PNR,J & Dr.GRR,J WP No.26693 of 2003 10 and straight away decided to dismiss him from service and post- decision, calls for his explanation.
(iii) It is settled principle of law that mere absence from duty does not per se amount to a major misconduct unless it is held as deliberate and wilful absenteeism, more particularly for a long period or frequent absenteeism. Therefore, the disciplinary authority requires to go into the aspects as to why and in what circumstances employee was absent, whether explanation offered by the delinquent employee is satisfactory, whether the delinquent employee is in the habit of frequently absenting from duty and whether the absence is for a shorter period or a longer period. Depending on the finding recorded in the departmental proceedings on the nature and period of absence, it is for the disciplinary authority to impose appropriate punishment ranging from censure to that of dismissal from service. Therefore, the basic requirement for the disciplinary authority to take final decision to impose appropriate punishment is finding of fact on the allegation of unauthorized absence.
(iv) In the instant case, charge memo was drawn on 21.08.1995 by which date his application to extend leave was pending. Even before, his application for extension was considered and rejected asking him to attend to duties disciplinary authority could not have assumed that petitioner was unauthorizedly absent; then hold him guilty and decide to impose major punishment of dismissal from service. He has not even PNR,J & Dr.GRR,J WP No.26693 of 2003 11 consulted the Unit Head before taking such a drastic measure. Though it is asserted by learned Special Government Pleader that a telegram was issued directing petitioner to resume duty, but it was not served on him. It appears, no further steps were taken before initiating disciplinary proceedings.
(v) Even though delinquent employee did not respond to the charge memo, but fact remains that in response to the final notice issued by the disciplinary authority on 07.12.1995, petitioner submitted his explanation briefly explaining the reasons for absence, while requesting to supply two documents and also requesting to provide some more time to file a detailed explanation. He has also pointed out that his absence after 31.07.1995 was on health grounds, that he applied for extension of leave and his applications were not rejected. Therefore, this particular piece of explanation offered by him was crucial to assess whether the absence of employee after 31.07.1995 was deliberate and wilful. In the final order, there was no discussion on the explanation offered by the petitioner. There was no discussion on the decision of the Unit Head dated 07.11.1995 and 16.04.1996 to subject the petitioner to medical examination.
(vi) The Unit Head thought it fit to refer the petitioner for medical examination vide his letters dated 07.11.1995 and 16.04.1996. Two aspects can be noticed from this development. First, apparently Unit Head was concerned about health of petitioner and views his absence PNR,J & Dr.GRR,J WP No.26693 of 2003 12 as not deliberate or wilful and second, this step was taken second time after the show-cause notice dated 11.12.1995, the brief explanation of petitioner dated 01.01.1996 and before order dated 09.05.1996 imposing punishment of dismissal from service. The immediate superior authority is the best person to assess the conduct of an Officer/employee and his inputs would aid the disciplinary authority to take a decision. It is not on record whether Unit Head brought to the notice of disciplinary authority these aspects or the disciplinary authority sought inputs of Unit Head. Keeping a blind eye on these aspects, the Disciplinary Authority has already decided to dismiss the petitioner. Order of dismissal was passed even before petitioner was subjected to undergo medical examination on 15.5.1996. It is also apparent from this that whether absence of petitioner was deliberate and wilful was not established. Petitioner's absence could have been termed as deliberate and wilful if in the medical examination, it was established that he was not suffering from serious ailment. It is interesting to note that in the order of dismissal, there is discussion on applications made by petitioner for extension of leave and the decision of Unit Head to refer petitioner for medical examination.
(vii) Decision of Appellate Authority is vitiated on several counts:
(1) Though petitioner raised several grounds in his appeal petition, the appellate authority failed to consider any of the grounds and simply affirmed the decision of the disciplinary authority. Rule 37 PNR,J & Dr.GRR,J WP No.26693 of 2003 13 of the Rules require 'consideration of the appeal', which imply consideration of grounds urged and taking a decision. Width of consideration is elaborated in Sub-Rule 2. Sub-rule (2) requires appellate authority to consider, (a) whether the procedure laid down in these rules has been complied with and if not, whether such non-
compliance has resulted in the violation of any provisions of the Constitution of India or in failure of justice; (b) whether the findings of the disciplinary authority are warranted by the evidence on record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe and pass orders.
(2) As against this mandate, the order of appellate authority is cryptic and simply affirmed the decision of the disciplinary authority. The relevant portion of the order dated 29.03.2007 reads as under:
"I have gone through the appeal and relevant records. I do not find any reasons to interfere with the action of Deputy Inspector General of Prisons (Telangana Region), Hyderabad. Hence the appeal is rejected".
(3) Thus, order of the appellate authority is not in compliance with the requirements of Rule 37 of the Rules, 1991, besides being non- compliance of the basic requirement of consideration of the grounds raised in the statutory appeal before affirming an order of dismissal from service.
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(viii) The petitioner being Government employee, he has the protection of Article 311 of the Constitution of India. Article 311 mandates that no permanent employee can be dismissed from service without following due process. Exceptions carved out in the second proviso to clause-2 are attracted if those conditions are fulfilled. In the case on hand, on the allegation of absence of the petitioner from duty for a short period, the question of 'not reasonably practicable to conduct enquiry' as required by clause (b) of second proviso to Article 311 (2) of the Constitution of India, is not attracted.
(ix) The letter dated 07.11.1995 of the Unit Head shows that petitioner had applied for extension of leave. It is not the case of respondents that his leave applications were rejected and petitioner was asked to join duty. On the contrary, immediate superior authority entertained a doubt whether leave on medical grounds beyond 90 days can be granted and sought for opinion on health status. Therefore, it cannot be said that absence was without application for extension of leave on health grounds and wilful and deliberate.
(x) In response to the averments made in paragraphs 11 to 14 of the affidavit filed by the petitioner, the deponent to the counter- affidavit states that even though petitioner was asked to undergo medical examination and even after he received notices, he did not appear before the Medical Board. This statement clearly points out that the disciplinary authority was aware that petitioner was directed to be PNR,J & Dr.GRR,J WP No.26693 of 2003 15 examined about his health condition by the Medical Board, but strangely simultaneously disciplinary proceedings were pursued and even before the petitioner was to undergo medical examination, the order of dismissal from service was passed.
(xi) Final nail in the coffin is, the manner in which disciplinary action was handled. It smacks of arbitrary exercise of power and authority, vindictive and shows total non-application of mind.
10. From the above analysis, it is palpable that the decision making process to visit on the employee the punishment of dismissal from services is per se vitiated.
11. No employee can remain absent from duty without permission. He can absent from duty only by submitting leave application and only after leave is sanctioned. Without prior intimation and sanction of leave, if employee does not attend to duties, such absence may be treated as unauthorised, may amount to misconduct and warrant disciplinary action. However, gravity of misconduct depends on period of absence and conduct of employee. Different yardsticks may apply if absence was in continuation to sanctioned leave. Thus, mere absence from duty does not automatically amount to grave misconduct. Only if absence is wilful, deliberate and without any justification, it would be a grave misconduct. Thus, it is necessary for the disciplinary authority to find out first whether the absence was deliberate and wilful. For this, PNR,J & Dr.GRR,J WP No.26693 of 2003 16 enquiry is necessary. If the absence was proved to be deliberate and wilful, the next question is what punishment can be imposed. On a proved allegation of unauthorized absence punishment may vary depending on various aspects.
12. "Extent of penalty depends upon the nature of service, the position held by the employee, the period of absence and the cause/ explanation for the absence." [Paragraph-14, STATE OF PUNJAB Vs P.L.SINGLA : (2008) 8 SCC 469)]. "Unauthorized absence cannot be put in straitjacket formula for imposing punishment. It will depend upon many a factor as has been laid down in P.L.Singla" (Paragraph-27, CHENNAI METROPOLITAN WATER SUPPLY AND SEWERAGE BOARD AND OTHERS Vs T.T.MURALI BABU- [(2014) 4 SCC 108].
13. There is no discussion in the order of punishment as to the conduct of petitioner prior to initiation of disciplinary proceedings resulting in imposing punishment of removal, nor there any discussion on endeavour made to secure the presence of employee and despite repeated instructions to attend to duty, the employee refused to resume his work. It is not alleged that petitioner was in the habit of absenting from duty. It is also not placed on record that he was indulging in misconduct earlier and was imposed punishments. Perforce, application of mind to the issue and taking conscious decision is paramount. The same is palpably missing. The whole exercise appears as vindictive.
PNR,J & Dr.GRR,J WP No.26693 of 2003 17 The action taken was on a petty misconduct and appears to be a camouflage to throw the petitioner out of employment.
14. For all the aforesaid reasons, the order of dismissal from service cannot be sustained and is accordingly set aside.
15. Having noticed that the procedure adopted by the disciplinary authority and the appellate authority and the manner in which the orders are passed is not in accord with law, ordinarily the matter should be remitted to the stage of charge memo. However, the facts in this case present a different picture. The absence relates to the year 1995 and the disciplinary action resulted in imposing punishment of removal from service in the year 1996. Without appreciating the issue in proper perspective the Tribunal dismissed the Original Application. This writ petition is pending since 2003.
16. Remanding the matter would mean that the disciplinary authority should go back to the drawing board to start the exercise afresh from the stage of charge memo. The employee has to face the ignominy of protracted disciplinary action for no fault of him, that too on the allegation of absence for few weeks followed by sick leave.
17. Thus, it is an eminently fit case where Court should give quietus to the litigation. Opting to this course require consideration of two aspects. Firstly, on disciplinary action per se and secondly on back- wages and other service benefits.
PNR,J & Dr.GRR,J WP No.26693 of 2003 18
18. In the normal circumstances, the disciplinary action could have resulted in a minor punishment/less severe punishment. Petitioner has already suffered enough, much more than a reasonable punishment imposed in normal course on such allegation could have resulted in. His prime life was scuffed due to indiscretion of the disciplinary authority and he was deprived of rendering service to the State for such a long time for no fault of him. In the earlier paragraphs Court noticed illegalities running through the entire disciplinary action. It is apparently a vindictive action more than to discipline a young brat officer. Therefore petitioner deserves complete exoneration from the disciplinary action.
19. The next issue is how to regulate the service, wages and allowances for the period from the date of dismissal till the date he attained age of superannuation and post reinstatement benefits.
20. Learned senior counsel contended that due to illegal and arbitrary actions of respondents, petitioner was put to untold hardship and suffering for more than 25 years; he struggled hard to eke-out a living and taking responsibilities of the family, more particularly growing children. As averred in the additional affidavit filed by the petitioner, he initially tried to support his father by working in the agricultural farms but he could not earn any money from the said agricultural activity. As the burden of taking care of the family was increasing each day, he has PNR,J & Dr.GRR,J WP No.26693 of 2003 19 migrated to Hyderabad to do some activity on his own but he sustained heavy losses. Ultimately, he joined in a proprietary concern, by name, 'Perfect Metaprint Industry' in the year 2013 and has been working in the said firm for the last more than 9 years and earning 50,000/- per month. In support of his claim on earnings, he filed income tax returns. According to learned senior counsel, petitioner had to borrow money to pay for the education of his son who was pursuing Engineering and loans are yet to be cleared. He would therefore submit that petitioner is entitled to back-wages for the entire period of out of employment. On payment of back-wages and other benefits, learned senior counsel placed reliance on Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya3 and Jayantibhai Raojibhai Patel Vs Municipal Council, Narkhed and others4.
21. The issue of regulation of back-wages, for the period of out of employment and granting consequential benefits was considered by the Hon'ble Supreme Court in several decisions.
22. In Deepali Gundu Surwase (supra), the Hon'ble Supreme Court culled out the propositions from the precedent decisions. To the extent relevant paragraphs-22, 38 to 42 read as under:
"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is 3 (2013) 10 SCC 324 4 (2019) 17 SCC 184 PNR,J & Dr.GRR,J WP No.26693 of 2003 20 dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.
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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.
PNR,J & Dr.GRR,J WP No.26693 of 2003 21 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.
xxxxx
41. In view of the above discussion, we hold that the learned Single Judge of the High Court committed grave error by interfering with the order passed by the Tribunal for payment of back wages, ignoring that the charges levelled against the appellant were frivolous and the inquiry was held in gross violation of the rules of natural justice."
23. In J.K.Synthetics Ltd. v. K.P.Agrawal,5 Hon'ble Supreme Court held that if the termination is set aside and as a consequence employee being exonerated or being found not guilty of the misconduct, the court 5 (2007) 2 SCC 433 PNR,J & Dr.GRR,J WP No.26693 of 2003 22 reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimize him, and the disproportionately excessive punishment was imposed, the principles relating to back wages would be the same as those applied in the cases of an illegal termination.
24. Broadly, the principle that can be culled out from the precedent decisions is, "if termination/dismissal/removal from service is found to be ex facie illegal, unjustified, ordinarily the employee is entitled to all benefits including continuity of service, advancement in service and back-wages. However, Hon'ble Supreme Court also advised caution in granting consequential benefits, more particularly on relief of advancement in service. From the decisions cited at the bar, it is seen that depending on the facts of a given case, appropriate back wages and other benefits need to be granted.
25. In the case on hand, we have found that the termination was ex facie illegal and was actuated with desire to victimize and is vindictive. At any rate on the allegation of a short period of unauthorized absence, followed by sanctioned leave, the punishment of dismissal was disproportionate and is excessive. In the facts of this case, Court opines that at this stage no punishment is warranted on a frivolous allegation of unauthorized absence. Therefore, we are of the opinion that liberal approach is required to be adopted with reference to the consequential benefits.
PNR,J & Dr.GRR,J WP No.26693 of 2003 23
26. The petitioner is fair in submitting what he has done after his termination. According to petitioner at least from 2013 he is gainfully employed by drawing good amount of monthly allowances from private employer. It appears, petitioner was not gainfully employed, was struggling to eke-out living and subjected to lot of financial hardships for the period from 1996 to 2013, for about 17 years, which was a crucial period to look after his family and to educate his children. For this period petitioner is entitled to pay and allowances.
27. However, calculation of actual benefits is a tedious exercise. Instead, we deem it appropriate to fix a consolidated amount of 20 lakhs (Rupees twenty lakhs only) as pay and allowances for the entire period of out of employment.
28. Further, petitioner is entitled to continuity of service for the purpose of settlement of retirement benefits, earned leave etc. Petitioner is entitled to retirement benefits and monthly pension.
29. The issue of promotion depends on the service put in, assessment of suitability, eligibility and various other factors. Therefore, we leave it open to the petitioner to stake a claim on his entitlement for advancement in service. We only make an observation that in the event petitioner making application to grant promotions, same should be considered objectively and appropriate decision be taken thereon within PNR,J & Dr.GRR,J WP No.26693 of 2003 24 a period of three months from the date of submission of such application.
30. The Writ Petition is accordingly allowed. Pending miscellaneous applications, if any, stand closed.
______________________________ JUSTICE P.NAVEEN RAO ______________________________ DR.JUSTICE G.RADHA RANI Date: 08.04.2022 Kkm/tvk PNR,J & Dr.GRR,J WP No.26693 of 2003 25 HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE DR. JUSTICE G.RADHA RANI WRIT PETITION NO.26693 OF 2003 Date: 08.04.2022 Kkm/tvk