Central Administrative Tribunal - Bangalore
Lourdu Nandan E vs Revenue on 23 July, 2024
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OA.No.170/00418/2022/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00418/2022
ORDER RESERVED ON: 08.07.2024
ORDER PRONOUNCED ON: 23.07.2024
CORAM:
HON'BLE MR. JUSTICE B.K. SHRIVASTAVA, MEMBER(J)
1. Lourdu Nandan E S/o Shri Hirudianandan,
Aged about 50 years, No. 4041, 9th Cross,
Ist Main Road, Shivayogiswamy Road,
Gandhi Nagar,
Mysore - 570 007.
2. Hebbalaiah S/o Shri Kote Gowda,
Aged about 42 years, Kuruba Gowda Road,
Mandakalli Post, Mysore Taluk,
Mysore - 571 311.
3. Mahesh M S/o Shri Mahadeva,
Aged about 38 years, No. 29, 20th Cross,
2nd Main, Jay Nagar,
Mysore - 570 014.
4. Yangamma Mangala W/o Shri Venkataram,
Aged about 46 years, Door No.2, J.P. Nagar,
Ramabai Nagar, Navodaya Layout,
Mysore - 570 007. ... Applicants
(By Advocate Shri T.C. Gupta)
Vs.
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OA.No.170/00418/2022/CAT/BANGALORE
1. Union of India, through the Finance Secretary,
Ministry of Finance, Department of Revenue,
Government of India,
New Delhi - 110 001.
2. Pr. Chief Commissioner of Income Tax,
Karnataka & Goa Region,
Queens Road, Bangalore - 560 001.
3. Pr. Commissioner of Income Tax,
Residency Road, Mysore - 570 010. ...Respondents
(By Shri N. Amaresh, Sr. Panel Counsel)
ORDER
PER: JUSTICE B.K. SHRIVASTAVA, MEMBER (J)
This OA has been filed on 10.10.2022 for the payment of wages for the period of 01.09.2019 to 20.01.2020. The reliefs claimed in para 8 of the OA are as under:-
"A) In view of the facts and grounds enumerated above, it is most respectfully prayed that the respondents may be directed to pay wages from 1.9.2019 to 20.1.2020 to the applicants along with interest for the period of delay.
B) Any other appropriate writ, order or direction, which may be considered just and proper in the facts and circumstances of the case, may be issued in favour of the Applicant."3
OA.No.170/00418/2022/CAT/BANGALORE
2. As per applicants, they are working as casual labour from 1997 onwards under the Respondent No.3. The respondents issued the order dated 29.08.2019 to the effect that the payment will not be made directly to the casual labour but the payment will be made through a service provider / contractor. The applicants filed OA Nos. 1017 to 1020/2019 before this Tribunal. In the aforesaid OAs, interim order was passed on 20.09.2019 by which the order passed by the respondents on 29.08.2019 was stayed. In compliance with the aforesaid interim order, the applicants were taken back in service from 21.01.2020. As per applicants, they are entitled to back wages for the period of 01.09.2019 to 20.01.2020 but the respondents did not grant the aforesaid relief. The respondents are responsible for not giving the posting order in spite the interim order passed by the Tribunal. Therefore, the applicants filed this OA for granting the wages for the period of 01.09.2019 to 20.01.2020.
3. The respondents opposed the claim by filing the reply statement on 17.01.2023. It is submitted by the respondents that the applicants were re-instated on 21.01.2020. The rule of 'No Work No Pay' is applicable in the present case.
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4. The applicants also filed rejoinder on 07.02.2023 and stated that in the light of judgment passed by Hon'ble Apex Court on 09.12.2015 in the case of Shobha Ram Raturi vs. Haryana Vidyut Prasaran Nigam Limited and others in Civil Appeal No. 11325/2011, the applicants are entitled to the aforesaid payment of back wages.
5. The respondents also filed additional reply on 24.03.2023 and submitted that the aforesaid case of Shobha Ram Raturi is not applicable in this case because the facts are different.
6. If we examine the case then it is found that the OA Nos. 1017/2019 - 1020/2019 were filed earlier. On 20.09.2019 the following interim order was passed in all four cases:-
"In Annexure - A1 the Principal Commissioner of Income Tax, Mysuru has cited the order of Hon'ble High Court of Karnataka and Hon'ble Supreme Court of India in Umadevi case and also cited their own order dated 13.05.2013. The impugned order specifically states that, as per the order of the CBDT as referred, the office is barred from making payments directly to the casual workers and contingent staff. However, vide Annexure - A3 the para in this circular relating to direct payment of wages to casual workers is stated to have been withdrawn from the date of issue of the above letter, viz., 13.05.2013. In view of Annexure - A3, it is apparent that the 5 OA.No.170/00418/2022/CAT/BANGALORE order prohibiting the payment of wages directly to the casual workers has been withdrawn. In these circumstances, it is necessary that Annexure - A1 is stayed.
Therefore, issue notice to the respondents by dasti. The applicant to take out notice and have it served on the respondents within seven days next and produce appropriate evidence for having done so.
Respondents to file a short reply on the question of interim relief within two weeks next. They can also file a detailed reply within four weeks and in that case applicant can file a rejoinder within two weeks thereafter.
In the interregnum, Annexure - A1 is stayed. Post for further hearing on 04.10.2019.
A copy of this order to be given to the learned counsel for the applicant."
7. It appears from the aforesaid order that at the motion stage, in the absence of respondents, the aforesaid interim stay was granted and it was also mentioned that the respondents may file a short reply on the question of "interim relief". Therefore, it is transpired from the aforesaid order that the "interim order" was not "absolute". Only for a short time the aforesaid ex-parte stay was granted and after filing the short reply by the respondents the question of interim relief was again required to be considered. 6
OA.No.170/00418/2022/CAT/BANGALORE
8. It appears from the record that in the matter interim relief was not considered again because the applicants were re-instated. The final order was passed in the aforesaid cases on 23.01.2020 as under:-
"Heard. Additional reply filed. Apparently, the respondents have allowed the applicant to join duty. Therefore the OA has become infructuous. OA is disposed of. No costs."
9. The applicants placed reliance upon the judgment passed by the Hon'ble Apex Court on 09.12.2015 in Civil Appeal No. 11325/2011 titled Shobha Ram Raturi vs. Haryana Vidyut Prasaran Nigam Limited and others. In the aforesaid case, the applicant was retired before the date of his superannuation and the order of retirement was set aside by the Hon'ble High Court. In the aforesaid situation, the Hon'ble Apex Court came to the conclusion that the applicant was entitled to all "consequential benefits". The aforesaid case is not applicable to the present case because in the aforesaid case the final order was passed by the Hon'ble High Court of Punjab and Haryana in which the retirement order was set aside. But in the present case, any final order was not passed by the Tribunal. Only interim order for a 7 OA.No.170/00418/2022/CAT/BANGALORE short period was passed, which was again not confirmed. But in the light of aforesaid interim order the applicants were re-instated.
10. The law in this regard, is clear. In the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others, [2013] 10 SCC 324 [12.08.2013] the Supreme Court considered the word "Reinstatement" and observed in para 16:-
"16. The word "reinstatement" has not been defined in the Act and the Rules. As per Shorter Oxford English Dictionary, Vol.II, 3rd Edition, the word "reinstate" means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word "reinstatement" means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edition, the word "reinstate" means to reinstall; to reestablish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word "reinstatement"
means establishing in former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam Webster Dictionary, the word "reinstate" means to place again (as in possession or in a former position), to restore to a previous effective state. As per Black's Law Dictionary, 6upremer state, condition, or office? To restore to a state or position from which the object or person had been removed." 8
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11. The question of back wages also considered by the Supreme Court in the aforesaid case of Deepali Gundu Surwase (supra). In para 17 the court said;-
"17. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the 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 9 OA.No.170/00418/2022/CAT/BANGALORE his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
12. After taken into consideration the various cases, in para 33, the Supreme Court explain the position of Law :-
"33. The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii) .......
iii) ..........
iv) ...........
v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the 10 OA.No.170/00418/2022/CAT/BANGALORE Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages."
13. Therefore, it is settled law that where the employee is forced out of employment on account of illegal action of the employer is subsequently found to be illegal, the employee / petitioner becomes entitled to the payment of salary for the period he was forced out of employment keeping in view of the peculiar facts and circumstances of the case. For granting pay for non- working period depends upon the finding of the competent court or tribunal. There should be a finding of the competent court or Tribunal that the termination was illegal and the applicants were not responsible for any default, but they suffered only due to an illegal act of employer.
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14. Therefore, it appears that in the present case the matter was not finally decided. There is no any finding of any competent court or Tribunal that the termination was illegal. The OA was not decided on merit. Only in compliance with the interim order the applicants were re-instated. Therefore, in view of this Tribunal, in the absence of any finding about the illegal termination, the applicants are not entitled to any back wages. Therefore, the OA is dismissed.
(JUSTICE B.K. SHRIVASTAVA) MEMBER (J) /ms/