Allahabad High Court
Murli Dhar Pandey vs State Of U.P. And Others on 2 April, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:26938 Court No. - 19 Case :- WRIT - A No. - 6442 of 1996 Petitioner :- Murli Dhar Pandey Respondent :- State of U.P. and Others Counsel for Petitioner :- Sanjay Bhasin,Amrendra Nath Tripathi,Pooja Dubey Counsel for Respondent :- C.S.C.,Ambika Prasad,Anuj Kudesia,Nirad Kumar Hon'ble Subhash Vidyarthi,J.
(Order on Condonation of Delay)
1. This is an application for seeking condonation of delay in filing application for recall of the order dated 27.09.2013 passed in Writ Petition No. 6442 of 1996 (S/S).
2. The cause shown in the affidavit filed in support of the application for condonation of delay is sufficient.
3. Accordingly, the condonation application is allowed. Delay is hereby condoned.
(Order on recall application)
4. This is an application seeking recall of the order dated 27.09.2013, whereby the writ petition was dismissed in default of appearance of the learned counsel for the petitioner.
5. No objection has been filed against the application.
6. The cause shown appears to be sufficient .
7. Accordingly, the application is allowed and the writ petition is restored to its original number.
(order on memo of petition)
8. Heard Sri Amrendra Nath Tripathi, the learned counsel for the petitioner, Sri Yogesh Chandra Bhatt, the learned Additional Standing Counsel and Sri Ambika Prasad, the learned counsel for the respondent nos. 3 to 5.
9. By means of this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the validity of an award dated 29.01.1996 passed by the Presiding Officer in Reference Case No. 332/1991 under Section 4(k) of Uttar Pradesh Industrial Disputes Act, 1947 to the extent that while reinstating that the petitioner in service, the Tribunal awarded merely 10% of back-wages to the petitioner whereas the petitioner claims to be entitled to payment of entire back-wages.
10. Briefly stated, the facts of the case are that the petitioner was working as a Conductor in Uttar Pradesh State Road Transport Corporation (U.P.S.R.T.C). On 04.05.1990, an office order was issued, removing the petitioner from service and it was further provided in the order that he will be entitled only for the amount paid as subsistence allowance during the period of his suspension.
11. The petitioner had challenged the aforesaid order by filing a departmental appeal, which was dismissed by means of an order dated 27.04.1991. The removal of the petitioner was challenged in Reference Case No. 332/1991 before the Presiding Officer of Industrial Tribunal, which decided by means of the impugned award dated 29.01.1996.
12. The Tribunal has held that the petitioner while working as conductor on 19.11.1985, he had issued ticket to some passengers for lesser distances than the distance of actual travel, but the number of passengers was less than 15 and there was nothing to indicate that the petitioner had done it with any malafide intention. Another incident had taken place on 13.06.1986, in which the petitioner was found taking seven passengers in his bus without ticket but the Tribunal found that the value of ticket of these seven passengers would only be Rs. 7.70/-
13. Another charge was regarding an incident that took place on 01.08.1987, wherein 34 passengers were found to be traveling without ticket but the Tribunal found that at the time to checking, the petitioner was found preparing tickets of the passengers, which dilutes the seriousness of the charge and does not prima face establish any malafide intention of the petitioner.
14. The Tribunal further recorded that in case the petitioner was punished for the incident that took place on 19.11.1985, he would have remained cautious in future and the subsequent incidents that took place on 13.06.1986 and 01.08.1987 would not have taken place. In the incident that took place on 19.11.1985, a loss of merely Rs. 21/- was caused to the corporation.
15. The Tribunal concluded that the petitioner had caused a loss of Rs. 28.70/- only in respect of the first two charges and the incident that took place on 01.08.1987 merely indicates serious negligence on the part of the petitioner. These charges are not so serious as warrant removal of the petitioner from service. Accordingly, the Tribunal found the order of removal from service to be improper. The Tribunal recorded that the charges levelled against the petitioner warrant a punishment of payment of merely 10% of back-wages to him so that a continuity in his services is maintained.
16. The U.P.S.R.T.C did not challenge the validity of the award dated 29.01.1996.
17. The learned counsel for the petitioner has submitted that when the removal order has been set aside by the Tribunal, the petitioner ought to have been awarded full back wages. In support of this contention he has placed reliance on two judgments of the Hon'ble Supreme Court in the Cases of Chief Regional Manager, United India Insurance Company Limited Vs. Siraj Uddin Khan; 2019 7 SCC 564, and Armed Forces Ex Officers Multi Services Coop. Society Ltd. v. Rashtriya Mazdoor Sangh, (2022) 9 SCC 586.
18. In the case of Chief Regional Manager, United India Insurance Company Limited Vs. Siraj Uddin Khan; (2019) 7 SCC 564, the the Hon'ble Supreme Court held that:-
"20.We may further notice the judgment of this Court, which has also been relied on by the respondent in his counter-affidavit i.e. judgment of this Court inShobha Ram Raturiv.Haryana Vidyut Prasaran Nigam Ltd.[Shobha Ram Raturiv.Haryana Vidyut Prasaran Nigam Ltd., (2016) 16 SCC 663 : (2015) 3 SCC (L&S) 185] In the above case, the appellant was retired from service on 31-12-2002, even though he would have, in the ordinary course, attained his date of retirement on superannuation, only on 31-12-2005. The appellant assailed the order of retirement, which was allowed [Shobha Ram Raturiv.Haryana Vidyut Prasaran Nigam Ltd., 2010 SCC OnLine P&H 13116] by the learned Single Judge. The learned Single Judge has denied the back wages to the appellant on the principle of "no work no pay". The order of the learned Single Judge was assailed by the appellant by filing a letters patent appeal, which too was dismissed [Shobha Ram Raturiv.Haryana Vidyut Prasaran Nigam Ltd., 2011 SCC OnLine P&H 17610] . This Court allowed the appeal of the appellant and made following observations in paras 3 and 4 : (Shobha Ram Raturi case[Shobha Ram Raturiv.Haryana Vidyut Prasaran Nigam Ltd., (2016) 16 SCC 663 : (2015) 3 SCC (L&S) 185] , SCC p. 664) "3.Having given our thoughtful consideration to the controversy, we are 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 utilised the services of the appellant for the period from 1-1-2003 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 1-1-2003 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".
4.For the reasons recorded hereinabove, we are satisfied, that the impugned order passed by the High Court, to the limited extent of denying wages to the appellant, for the period from 1-1-2003 to 31-12-2005 deserves to be set aside. The same is accordingly hereby set aside."
21.This Court held in the above case that having restrained the appellant from rendering his services with effect from 1-1-2003 to 31-12-2005, the respondent cannot be allowed to press the plea of the principle of "no work no pay" for denying the wages. In the above case, the appellant was restrained from working due to order of retirement dated 31-12-2002, due to which he could not work till his normal retirement. When the order dated 31-12-2002 was set aside, automatically, he became entitled for back wages and the principle of "no work no pay" was not attracted."
19. In the case of Armed Forces Ex Officers Multi Services Coop. Society Ltd. v. Rashtriya Mazdoor Sangh, (2022) 9 SCC 586, the Hon'ble Supreme Court held that:-
"17.As regards the last submission by Shri C.U. Singh, about the legality of awarding 75% back wages, it was argued before us that the workmen were obligated to prove that they were not gainfully employed after the dismissal from service. It was also submitted that they must at least plead on oath that they were unemployed. Shri C.U. Singh took us through the evidence and on the basis of statements made therein has submitted that the parties have admitted to have worked at some place or the other through the pendency of the litigation.
18.The Tribunal has considered the matter in detail and after appreciating the oral and documentary evidence, the Tribunal directed reinstatement of the employees with only 75% back wages. Whether a workman was gainfully employed or not is again a question of fact, and the finding of the Tribunal as upheld by the High Court, cannot be interfered with by the Supreme Court in exercising its power under Article 136 of the Constitution of India. The following findings of the Tribunal are conclusive:
"Insofar as back wages to be paid to the workers are concerned, it is a matter of record that 27 workers have stepped into the witness box. Even the President of the Second Party Union is also examined. All the workers and President of the Union have consistently stated in their examination-in-chief that they have remained unemployed after their termination and they failed to procure alternate employment also."
19.InDeepali Gundu Surwasev.Kranti Junior Adhyapak Mahavidyalaya[Deepali Gundu Surwasev.Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 : (2014) 2 SCC (L&S) 184] , this Court held : (SCC p. 357, para 38) "38.3. ? If the employer wants to avoid payment of full back wages, then it has to pleadand also lead cogent evidenceto 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."
(emphasis supplied)
20.With respect to the obligation of the appellant, the finding of the Tribunal is simple that: "On the contrary, in the entire evidence filed by the First Party, the First Party has not brought an iota of evidence to show that all the workers were employed elsewhere and were earning for their livelihood."
20. There can be no dispute to the aforesaid proposition of the law laid down by the Hon'ble Supreme Court, but the same is not applicable to the facts of the present case, where the petitioner was removed from service on the charges that he was permitting passengers to travel in bus of U.P.S.R.T.C on plural occasions. The removal order was affirmed in appeal. The Tribunal also found that the charges of letting passengers travel in bus of U.P.S.R.T.C without ticket were established but the loss caused to the corporation by this act in two incidents was merely Rs. 28.70/- Regarding third incident, that took place on 01.08.1987, the Tribunal found that the petitioner was in the process of preparing tickets and at the most a case of gross negligence was made out against him. Thus, the Tribunal has also concluded that the petitioner was guilty of causing loss to the corporation by permitting passengers to travel in the bus of U.P.S.R.T.C without issuing proper tickets to them.
21. Although the tribunal found the petitioner guilty of the aforesaid charge it set aside the removal order and reinstated the petitioner in service but ordered that merely 10% amount will be paid as back-wages to the petitioner for he period the remained out of service.
22. It is not a case where the removal of the petitioner has been set aside after recording a finding that he was not guilty, in which circumstances the petitioner's claim for back-wages would have had some force.
23. In U.P.S.R.T.C Vs. Vinod Kumar; 2008 1 SCC 115, the Hon'ble Supreme Court had affirmed removal of a bus conductor on similar charges.
24. When the Tribunal has passed an order for deduction of back wages by way of punishment, finding the petitioner guilty of the charges, there appears to be no ground to interfere in the impugned award dated 29.01.1996, in Reference Case No. 332/1991 under Section 4(k) of Uttar Pradesh Industrial Disputes Act, 1947.
25. The writ petition lacks merit and the same is hereby dismissed.
(Subhash Vidyarthi,J.) Order Date :- 2.4.2024 Preeti.