Central Administrative Tribunal - Mumbai
Shrikant Tiwari vs M/O Railways on 14 February, 2018
1 OA No.398/2011
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No.398 OF 2011
Dated this Wednesday the 14th day of February, 2018
CORAM: HON'BLE SHRI ARVIND J. ROHEE, MEMBER (J)
HON'BLE SHRI R. VIJAYKUMAR, MEMBER (A)
Shrikant Tiwari,
Ex. Head Booking Clerk at Thane,
Under Divisional Railway Manager,
Mumbai Division, Central Railway,
Mumbai 400 001.
Residing at : 602, Raghubir Building
Pawandham Complex, Dham Road,
Kalyan (West) Pin Code 421 306. .. Applicant.
(By Advocates Shri G.S.Walia and Shri R.G.Walia)
Versus
1. Union of India,
through General Manager,
Central Railway, Headquarters Office,
CST Mumbai, Mumbai 400 001.
2. Divisional Railway Manager /
Additional Divisional Railway Manager,
Mumbai Division, Central Railway,
CST Mumbai 400 001.
3. Sr. Divisional Commercial Manager,
Mumbai Division, Central Railway,
CST Mumbai 400 001.
4. Divisional Commercial Manager (COG),
Mumbai Division, Central Railway,
CST Mumbai 400 001. ..Respondents.
(By Advocate Shri V.S.Masurkar)
OA filed on 04.05.2011
Order reserved on 31.01.2018
Order delivered on 14.02.2018
2 OA No.398/2011
O R D E R
PER : SHRI ARVIND J. ROHEE, MEMBER (JUDICIAL) This matter has been remanded by the Hon'ble High Court of Bombay vide order dated 27.09.2017 in Writ Petition No.12070 of 2016 filed by the applicant challenging the order dated 24.06.2016 passed by this Tribunal in this OA, only to the extent of non-grant of back wages to him, on setting aside the order of compulsory retirement.
2. In this OA, the following reliefs are sought :-
"8(a). This Hon'ble Tribunal will be pleased to call for the records and proceedings which led to the passing of the impugned orders dated 15.6.2010, 16.5.2002, 19.7.2002 and 21.2.2003, and the chargesheet dated 9.1.2001 (Annexure A-1, A-2, A-3, Annexure A-4, Annexure A-5) and after considering its validity, constitutionality, propriety quash and set aside the same.
(b). This Hon'ble Tribunal will be pleased to hold and declare that the Applicant has been wrongly and illegally compulsory retired and order and direct the Respondents to reinstate the him with all consequential benefits of seniority, promotion, increment and arrears of pay with 18% p.a. interest on the arrears;
(c). That it may be ordered and directed that the Applicant is entitled for all the consequential benefits a promotion, seniority, increment, etc as a result of the quashing of the said impugned orders.
(d). Any other and further order may be 3 OA No.398/2011 passed which this Hon'ble Tribunal may deem fit and necessary in the interest of justice.
(e). Cost of this application may be provided for."
3. The facts of the case run in a small compass. The applicant was working as Head Booking Clerk at the relevant time under respondent No.4. He was served with a memorandum of charge-sheet on 09.01.2011 on the allegations that while on duty as Head Booking Clerk on the day of decoy check, he was found to have over charged a decoy passenger by Rs.10/-, found excess Railway Cash to the extent of Rs.17/-, he tried to resell the ART Ticket and he failed to cooperate with the Vigilance team by using un- parliamentary words and by not preparing or signing any paper of check proceeding.
4. The applicant denied the charges levelled against him and contested the enquiry. The Enquiry Officer found charge Nos.1 and 3 proved whereas charge Nos.2 and 4 not proved. The Disciplinary Authority, the respondent No.4, Divisional Commercial Manager (COG) then served Enquiry Officer's report on the applicant along with his disagreement note on finding of charge 4 OA No.398/2011 No.2 and 4 recorded by Enquiry Officer and after considering his representation on it, found the applicant guilty of all the charges and imposed penalty of compulsory retirement from service vide order dated 16.05.2002 (Annexure A-3). On appeal, the respondent No.3, the Senior Divisional Commercial Manager vide order dated 19.07.2002 (Annexure A-2) confirmed the order of Disciplinary Authority. This was further carried to the Revisional Authority the Divisional Railway Manager, the respondent No.2 vide impugned order dated 21.02.2003 (Anexure A-5) rejected the Revision Petition, thereby confirming the order of compulsory retirement passed by the Disciplinary Authority and the Appellate Authority.
5. The record shows that the applicant after few years approached Labour Court through Employees Union and a reference was made for conciliation. However, subsequently the said proceeding was withdrawn by the Employees Union and the applicant then submitted a memorial / Review Petition to the Hon'ble President on 22.10.2007 under Rule 31 of the Railway Servants 5 OA No.398/2011 (Discipline and Appeal) Rules, 1968. This was considered and the impugned order dated 15.06.2010 (Annexure A-1) is passed rejecting it, which is communicated to the applicant by Director Establishment (D&A) Railway Board on 01.07.2010.
6. The applicant then filed the present OA on 04.05.2011 for challenging all the impugned orders as illegal, arbitrary or improper. The competence of Disciplinary Authority is also challenged since according to him, his Appointing Authority on promotion post of Head Booking Clerk is the Senior Divisional Commercial Manager, who alone was competent to impose the major penalty and on the contrary, he acted as the Appellate Authority. Hence, entire proceedings stands vitiated.
7. This Tribunal after hearing both the learned Advocates for the parties found favour with the applicant and after elaborately considering the grounds raised, legal position and contentions of the parties recorded the following findings in paragraph No.23 of the order dated 24.06.2016 :-
6 OA No.398/2011
"23. In view of the above, the impugned orders dated 16.05.2002, 19.07.2002 and 21.02.2003 passed by the Disciplinary Authority, Appellate Authority & Revisional Authority respectively are quashed and set aside. The respondents are directed to reinstate the applicant in the position of Head Booking Clerk in the same grad and pay as on the date of his compulsory retirement within twelve weeks from the date of receipt of a copy of this order. However, the applicant will not be entitled to any back wages from the period from which he was compulsorily retired to the date of his reinstatement. No order as to costs."
8. Aggrieved by the order declining to grant back wages, the applicant approached the Hon'ble High Court in Writ Petition No.12070 of 2016. It was disposed of vide order dated 27.09.2017 with the following directions as stated in paragraph No.3 of the order, which is reproduced here for ready reference :-
"3. It is seen that as far as directing reinstatement is concerned, detail and exhaustive reasons have been given in the order by the Tribunal, however, there is no reason at all given in the said order for stating that the petitioner would not be entitled to any backwages. In this view of the matter, we remand the matter back to the Tribunal for hearing on the aspect of backwages. All contentions of all the parties on the aspect of backwages are left open. The Tribunal is requested to decide the aspect of backwages within a period of three months from the date of receipt of this order. Petition is disposed of accordingly. Rule is made absolute in above terms."
9. This is how the matter has been remanded for fresh consideration only to the extent of non grant of back wages to the applicant after 7 OA No.398/2011 setting aside the order of compulsory retirement passed by the respondents.
10. On receipt Writ Order dated 27.09.2017 from the Hon'ble High Court the parties were noticed in pursuance thereof. Shri G.S.Walia and Shri R.G.Walia, learned Advocates appeared for the applicant. Shri V.S.Masurkar, learned Advocate represented the respondents. Nobody filed further pleadings on the claim for back wages after matter is remanded.
11. Oral submissions of all the learned Advocates for the parties heard on the limited issue of denial of back wages, on 11.01.2018, 30.01.2018 and 31.01.2018. The order on OA was then reserved.
12. Both the learned Advocates for the parties placed reliance on few decisions in support of their rival contentions. We have carefully gone through the entire case record and the citations of decisions relied upon by the parties.
FINDINGS
13. The only point arises for consideration of this Tribunal is whether the applicant is 8 OA No.398/2011 entitled to back wages for the period from date of his compulsory retirement till he attained age of superannuation on 30.11.2015 on the grounds raised by him.
14. During the course of arguments, the learned Advocate for the applicant has taken us through the relevant portion of the order dated 24.06.2016 passed by this Tribunal allowing the OA but denying back wages and submitted that the charge-sheet itself has been issued by the incompetent authority and consequently all the further proceeding were unsustainable in law and hence, the same has been rightly quashed by this Tribunal. For the purposes of this submission, he relied on observations and findings recorded by this Tribunal in paragraph No.22 of the order dated 24.06.2016, which are reproduced here :-
"22. The analysis of the facts of the present case and the position laid down in OA No.170/2006 which substantially and extensively relied upon the judgment of the Hon'ble Supreme Court in Scientific Advisor to the Ministry of Defence and others Vs. S.Daniel and others, (1991) 15 ATC leads us to the conclusion that in the present OA the promotion to the post of Sr. Head Booking Clerk in the grade of Rs.5000-8000 can be issued only by the Sr. Divisional Personnel Officer and that being the case a Divisional Commercial Manager (DCM) cannot be treated as a competent authority to pass the order of compulsory retirement against the applicant.9 OA No.398/2011
Coupled with the facts that there has been substantial procedural infirmity and impropriety while laying the trap and in the dissenting note given to the applicant by the Disciplinary Authority, we come to the conclusion that the disciplinary proceedings in the present case and the punishment imposed on the applicant suffer from serious illegalities and the impugned orders deserve to be struck down."
15. It is, thus, obvious that the order of compulsory retirement has been quashed on the preliminary ground that the order imposing major penalty of compulsory retirement has been passed by the incompetent authority, considering the pay of the applicant in the post of Head Booking Clerk, for which Senior Divisional Personnel Officer was the competent authority to pass the order. It is also obvious that the impugned orders have been set aside on merit on the ground that there were procedural irregularities committed during enquiry proceeding and lapse committed while laying the trap and while issuing the disagreement note by the Disciplinary Authority.
16. In the context of the aforesaid clear finding recorded by this Tribunal, which is admittedly not challenged by the respondents by way of Writ Petition in Hon'ble High Court, the 10 OA No.398/2011 same has attained finality. This being so, the learned Advocate for the applicant vehemently submitted that since the very institution of Memorandum of charge-sheet and all subsequent actions thereon have been taken by the incompetent authority, the applicant is deemed to have been in service from the date of his compulsory retirement till he attained age of superannuation, before passing order by this Tribunal and hence, this Tribunal was wrong in not granting back wages to the applicant. According to him, when order of dismissal, removal, termination or compulsory retirement is set aside, the logical consequence is that the delinquent employee is entitled to a full back wages till his reinstatement in service or retirement if it preceds. For the purposes of his submissions, the learned Advocate for applicant placed reliance on the following decisions :-
17. During the course of arguments, learned Advocate for the applicant submitted that since the applicant has been Compulsorily retired from service by incompetent authority and subsequently 11 OA No.398/2011 the said order is set aside by this Tribunal, he could not be reinstated since by that time he already attained age of supernnuation. He was thus prevented from doing his duty from the date of Compulsory Retirement till he completed age of superannuation. As such, he is entitled to get the full back wages. In this respect he placed reliance on the decision rendered by the Hon'ble Principal Bench of CAT in OA No.2997/2003 - H.D.Sharma v. Union of India and Ors. decided on 18.5.2005. In that case the issue regarding competence of the Disciplinary Authority who imposed the major penalty was involved. On inquiry the applicant therein was removed from service, which was subsequently reduced by the revisional authority to that of reduction in the grade from Rs.6500-10500/- to the grade Rs.5500- 9000. On the peculiar facts of that case both order of removal and reduction to lower grade was set aside on the ground that the Disciplinary Authority was not competent to pass the order. Hence, in peculiar facts of that case the period of his absence on duty from the date of removal till reinstatement in service on imposition of 12 OA No.398/2011 penalty of reduction of pay has been treated as duty period and back wages were granted to him for the said period, with the following operative order :
"Having regard to the facts and circumstances of the case as also the iscussion made above, Annexures A-1, A-2, and A-3 are quashed and set aside with consequential benefits to the applicant of restoration to the original post of PWI forthwith as if no chargesheet had been issued to applicant. It is further directed that the period from the date of removal from service till the date of joining back on duty shall be treated as on duty in the post of PWI. The consequential arrears of pay and allowances are directed to be paid to applicant within a period of two months from the date of communication of these orders.
16. OA is allowed in the above terms."
18. In the present case, however, the applicant has been compulsorily retired and not removed from service and consequently monthly pension as per rules was sanctioned to him immediately thereafter which he continued to receive till this day, without making any grievance for the same and thus he in fact acquised the said order or accepted it without protest since not challenged immediately before this Tribunal. In view of this admitted position on record, although back wages were granted in H.D.Sharma's case (referred supra), it will not 13 OA No.398/2011 be appropriate to take the same view in this matter.
19. The learned Advocate for the applicant further placed reliance on the decision rendered by this Tribunal in H.K.Tiwari v. The General Manager, Central Railway, Mumbai and Ors., O.A. No.549/2006 decided on 7.9.2007 and submitted that in that case also order of punishment was set aside on the ground of incompetence of the Disciplinary Authority and full back wages were granted and hence applicant is entitled to similar relief. However, perusal of the said decision shows that the applicant therein who was working as Ticket Collector, on proved charges in a disciplinary proceedings, punishment of reversion to lower grade in the scale of Rs.3050- 4590 as Junior Ticket Collector was imposed and he was not dismissed from service. However, it was found that since the Disciplinary Authority who imposed the said punishment was not competent, the said order was set aside and the position ante was restored in respect of applicant's post and in such circumstances of the case, the following operative order is passed :- 14 OA No.398/2011
"21. Thus, we have no hesitation in holding that the ACM was not the appointing authority of the applicant and hence he could not have imposed the punishment of reduction to a lower scale or post even under Note 2 given in the Schedule of Power. The impugned order is, therefore, quashed and set aside and the respondents are directed to give applicant all the consequential benefits, including restoration of his pay and pay scale, along with arrears and seniority, etc.
22. The O.A. stands allowed in terms of the above directions. No order as to costs".
20. It is, however, obvious from record that although the common issue in the aforesaid O.A. No.549/2006 and the present O.A. is regarding competence of the Disciplinary Authority, the punishment imposed is different and even on reversion to the lower post, the applicant therein continued to work although on reduced salary, and in the background of aforesaid facts and circumstances of case, the consequential benefits including restoration of his pay and pay scale was granted which is fully justified. In the present case, same view cannot however be taken, since on other circustances to be discussed later it will not be appropriate to grant the same relief to the applicant.
21. The learned Advocate for the applicant further placed reliance on another decision 15 OA No.398/2011 rendered by this Tribunal in S.K.Shrivastava v. Union of India through General Manager, Central Railway, CST, Mumbai and Ors., O.A. No.170/2006 decided on 18.11.2010 and stated that the facts of this case are similar to the present case since the applicant therein who was working as Head Booking Clerk has been compulsorily retired from service on proved charges and it was subsequently set aside and he was reinstated with full back wages. We have carefully perused the said decision. It was a trap case and the Landmark decision in Moni Shanker v. Union of India and Another, (2008) 1 SCC (L&S) 819., is elaborately considered therein and also that of Smt.Kamta Devi v. Union of India & Another (2003 (2) AISLJ 213). The issue regarding competence of Disciplinary Authority was also involved. The decision rendered in H.K.Tiwari's case (referred supra) in O.A. No. 549/2006 is also considered. This Tribunal found favour with the submissions and grounds raised by the applicants therein and passed the following operative order, after holding that the trap was conducted in violation of the provisions contained in paras 704 and 705 16 OA No.398/2011 of the Vigilance Manual:-
"....Accordingly, we quash order dated 19.3.2004 (Annexure-A-1) and direct the respondents to reinstate the applicant within a period of four months from the date of receipt of a copy of this order with all consequential benefits. Whatever amount the applicant has received by way of retiral benefits, it is open to the respondents to pass appropriate orders in accordance with rules regarding the retiral dues already received by him in lump sum, whether the same have to be re- deposited or otherwise. However, the actual amount of pension he has received will be adjusted against any monetary benefits payable to the applicant while giving effect to the above order."
22. It is obvious that although there is no specific order sanctioning back wages, it is stated that the applicant will be entitled to consequential benefits on setting aside the order of Compulsory Retirement and the amount he has already received by way of retiral benefits were directed to be adjusted in arrears of pay. According to the learned Advocate for the applicant similar relief can be granted in the present case also. The facts of the aforesaid case relied upon by the applicant and the findings recorded therein cannot be disputed. However, the peculiar facts of the present case will have to be considered before taking a decision that on reinstatement the applicant in 17 OA No.398/2011 the present OA is also entitled to the similar relief of back wages.
23. Learned Advocate for the applicant further placed reliance on the decision rendered by the Hon'ble High Court of Delhi in Writ Petition (C) No.18886-88/2005 Union of India v. Sh. H.D.Sharma decided on 26.04.2011 and submitted that the applicant is entitled to similar relief. The decision rendered by Hon'ble Principal Bench in the OA filed by the respondent Shri H.D.Sharma in the above referred Writ Petition, we have already considered. The said decision is challenged by the Union of India. However, the Writ Petition is dismissed, thereby confirming the order passed by the Hon'ble Principal Bench on 18.5.2005. The principle of `No Work No Pay' was also considered in the aforesaid case. Normally if a Government servant unauthorizedly remains absent from duty and the said charge is proved, he is not entitled to wages for the period he remained absent although there may not be break in service. However, if due to imposition of major penalty in an inquiry, Government servant is prevented from attending 18 OA No.398/2011 duty, to remain absent from duty or could not join on account of removal, dismissal, termination or compulsory retirement from service, it is stated that back wages may be granted in appropriate cases. The observation noted by Hon'ble High Court of Delhi in paragraph No.26 and 27 are worth quoting. The same is reproduced here for ready reference :-
"26. Since the respondent has been absolved of all the charges against him and the enquiry proceedings and the punishment imposed against the respondent cannot be sustained against the respondent, the respondent shall be entitled for full back wages for the period of suspension and the said period should also be treated as the period spent on duty and to that extent the order of the Tribunal cannot be held to be perverse so as to require any intereference by this Court. The Supreme Court in case of Union of India and Others v. K.V. Janakiraman, (1991) 4 SCC 109, had held that benefits to the employee cannot be denied on the principle of `no work no pay' as the normal rule of `no work no pay' is not applicable to such case where the employee is completely exonerated and is not found blameworthy of the lis and is not visited with penalty of even censure. The reason given was that in such cases an employee although is willing to work is kept away from the work by the authorities for no fault of his and basing a case where the employee remains away from work for no reason, although the work is offered to him and in the circumstances applying fundamental rules 17(1), the emoluments cannot be denied in such cases.
27. In the totality of facts and circumstances, the learned counsel for the petitioner has not been able to make out any ground on the basis of which this Court would be impelled to interfere with the order 19 OA No.398/2011 of the Tribunal setting aside the punishment order passed against the respondent. In the th circumstances the order dated 18 May, 2005 is sustainable and the writ petition is, therefore, dismissed. The interim order dated 7th October, 2005 is vacated and petitioner shall implement the order of the Tribunal forthwith. With these directions, the writ petition is dismissed. Parties are, however, left to bear their own cost."
24. However, as stated and discussed earlier, considering the peculiar facts and circumstances of the present case the question is whether the applicant can claim back wages and if he is entitled to the same.
25. During the course of arguments, the learned Advocate for the applicant further placed reliance on the decision rendered by the Hon'ble Supreme Court in State of Uttar Pradesh Vs. Dayanand Chakrawarty and others, (2013) 2 SCC (L&S) 791 decided on 02.07.2013. In that case also the principles of 'No Work No Pay' is considered and when it can be applied. It is held that when a Government servant is on unauthorised absence from duty, although it is not a break in service he will not be entitled to get the wages for the period of absence on the principle of 'No Work No Pay'. However, in aforesaid matter it is held that when by virtue 20 OA No.398/2011 of the penalty imposed by the employer or for any other reason beyond his control and at the instance of the employer he was prevented from attending duty, or could not continue with service, and subsequently the order of dismissal / removal/ termination/ compulsory retirement is quashed, the Government servant should be paid the backwages.
26. It is further held in above referred case that principle of 'No Work No Pay' is applicable only to those employees who are not acted by any specific rule relating to absence from duty. Whereas when an employee is prevented by employer from performing his duties, the said principle is inapplicable and backwages can be claimed till the date of retirement. In the peculiar facts of that case, it was further held that employees including the respondents therein who had moved the Court of Law irrespective of the fact whether the interim order was passed in their favour or not, shall be entitled to full arrears of salary upto the age of 60 years. On the contrary employees who failed to move any Court and had to retire on attaining the age of superannuation, 21 OA No.398/2011 they are not entitled to arrears of salary, although they will be treated to have retired at the age of 60 years and their retiral benefits shall be refixed accordingly.
27. It is obvious that although the ratio laid down in the aforesaid case cannot be denied, the same is applicable to the respondents therein, who claim backwages till the age of superannuation. It is true that in the present case by virtue of the order of compulsory retirement the applicant was prevented from performing his duties till he attained age of 60 years. However, his conduct after order of compulsory retirement till he approached this Tribunal will have to be considered in this case for considering if he is entitled to backwages as claimed by him, which we shall consider in the later part of the judgment. We do not feel it necessary to make further comments on the decision referred above and relied upon by the applicant.
28. The applicant has also relied upon another decision rendered by the Hon'ble Supreme Court in Bhuvanesh Kumar Dwivedi Vs. Hindalco 22 OA No.398/2011 Industries Limited, (2014) 11 SCC 85 decided on 25.04.2014, in support of his contention that the applicant is entitled to backwages. It was a case under U.P. Industrial Disputes Act, 1947. However, in that case services of applicant were terminated for non-renewal of contract. It is also stated that he rendered continuous service for six years, during which employer followed the process of annually terminating him from service and reappointing him again in the same post. After considering various decisions on the issue of termination of workmen, it has been held that in cases of wrongful termination of service, reinstatement with continuity of service and backwages is the normal Rule. In the aforesaid case while granting relief to the applicant, the decision rendered in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324, is elaborately referred and affirmed as stated in para 38 of the judgment. The same are reproduced here for ready reference:-
"38. The propositions which can be culled out from the aforementioned judgments are:
38.1. In cases of wrongful termination of service, 23 OA No.398/2011 reinstatement with continuity of service and back wages is the normal rule.
* * * 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.
* * * 38.6. 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-a-vis the employee or workman. He can avail the services of best legal brain for prolonging the 24 OA No.398/2011 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. Vs. Employees."
(emphasis supplied).
39. In the present case, the respondent has made a vague submission to the extent that:
"the conduct of the workman throughout the proceedings before the High Court during 2002 to 2011 shows that he is continuously gainfully employed somewhere. Admittedly even in the counter-affidavit in the said writ petition, it has not been stated that the workman was not employed." (emphasis supplied)
40. Therefore, on the basis of the legal principle laid down by this Court in Deepali Gundu Furwase case, the submission of the respondent that the appellant did not aver in his plaint of not being employed, does not hold since the burden of proof that the appellant is gainfully employed post termination of his service is on the respondent. The claim of the respondent that the appellant is gainfully employed somewhere is vague and cannot be considered and accepted. Therefore, we hold that the appellant is entitled to full back wages from the date of termination of his service till the date of his reinstatement."
29. After considering few other decisions it has been held in para 42 in the aforesaid case of Bhuvanesh Kumar Dwivedi as under:-
"42. We therefore conclude and hold that the Labour Court was correct on legal and factual principles in reinstating the appellant along with full back wages after setting aside the order of termination. The High Court, on the other hand, has errer by exceeding its jurisdiction under Article 227 of the Constitution of India in holding that the appellant has in fact, resigned by 25 OA No.398/2011 not joining his duty as a Badli worker and also awarding that retrenchment compensation to the tune of Rs.1,00,000 will do justice to the appellant without assigning reasons which is wholly unsustainable in law."
30. It is thus obvious that while considering the claim for back wages on reinstatement in service it is to be considered whether during the intervening period of termination / removal/ dismissal/ compulsory retirement, whether the employee was in gainful employment meaning thereby whether he had any source of income for his sustainance. Thus there can be exception to general rule that on setting aside order of termination and reinstatement in service, back wages should normally be sanctioned. In the present case, it is obvious that since the applicant has been compulsorily retired from service and not removed, dismissed or terminated, he is entitled to monthly pension as per rules which was sanctioned to him. There is nothing on record to show that he had raised any protest against the grant of pension and accepted it without reserving his right to challenge the order of removal.
31. In this respect it may be stated that the 26 OA No.398/2011 applicant did not take any steps to challenge the order of compulsory retirement dated 16.07.2002 till the year 2011 when he approached this Tribunal in the present O.A. Thus he received full benefits of pension from 16.05.2002 till he was superannuated on 30.11.2015 during pendency of this O.A. and then challenged orders of removal. The said O.A. was however decided in his favour vide order dated 24.06.2016 and order of compulsory retirement was quashed both on merit as well as on the ground that it has been passed by incompetent authority. However, since the applicant has already attained the age of superannuation he could not be reinstated and hence the claim for back wages at the most can be laid for the period from 16.05.2002 to 30.11.2015 only.
32. It is true that it was pointed out by the learned Advocate for the applicant that the applicant first approached the Labour Court against the order of compulsory retirement and thereafter approached this Tribunal. However, this attempt was made by the Employees' Union and not by the applicant and since this is not a case 27 OA No.398/2011 of termination simplicitor under the provisions of Labour Law, the Labour Court would not have jurisdiction to entertain the matter and since the applicant was removed from service after holding departmental inquiry, although the said order was subsequently quashed by this Tribunal.
33. From the above discussion, it is obvious that the applicant was not diligent in challenging the order of removal and on the contrary it is obvious that he was satisfied with the said order from 2002 to 2011 i.e. for a period of 9 years till he approached this Tribunal since he was getting monthly pension. As such it cannot be said that there was no source of income for the applicant for his survival after he was compulsorily retired from service. In the peculiar facts of the case, therefore, although the order of removal has been set aside on the ground that it was passed by incompetent authority and even on merit finding material infirmities during trap and in conduct of the inquiry, we are not impressed with the submission of applicant's Advocate that the applicant is still entitled to claim back wages. 28 OA No.398/2011 The position would have been quite different had he been removed, dismissed or terminated from service, since in that event he was not even entitled to any pensionary benefits. Since he was getting the monthly pension without making any grievance, no relief can be granted in this O.A.
34. During the course of arguments the learned Advocate for the applicant submitted that whatever benefits the applicant has received in intervening period till his retirement, the same may be adjusted towards arrears of back wages if at all paid and there is no bar for doing so. However, since the claim for back wages is not being allowed there is no question of adjusting any arrears of back wages with the amount of monthly pension received by the applicant for the period from 16.05.2002 to 30.11.2015.
35. Before concluding it may not be out of place to mention here that the respondents placed reliance on the decision rendered by the Hon'ble Supreme Court in C.N. Malla Vs. State of Jammu and Kashmir and other, (2009) 9 SCC 597 decided on 24.08.2009. In that case factors to be 29 OA No.398/2011 considered for grant of full back wages are elaborately stated. It is held that discretion is open to the Court to grant back wages. However, for doing so the discretion should be reasonably and judiciously exercised keeping in view facts and circumstances of each case. Although the facts of the aforesaid case are distinct and 50% wages were sanctioned to the applicant therein, his unauthorised absence for some period has not been established as no inquiry was held and backwages were denied for unauthorised absence and delay on the part of the applicant. Although the facts of the present case are distinct, still ratio laid down therein for considering the claim for back wages, it is obvious that it cannot be granted as a matter of right, simply because the order of dismissal, removal, termination or compulsory retirement is quashed and each case has to be considered based on peculiar facts and circumstances of that case. As such considering the peculiar facts of the present case as noted earlier, especially that the applicant approached this Tribunal after 9 years from the date of removal from service and 30 OA No.398/2011 during that period he received pension as per rules which must have been revised on implementation of recommendations of Central Pay Commission, no relief can be granted to the applicant as claimed by him.
36. From the above discussion, we hold that the applicant is not justified or entitled to claim any back wages for the period from 16.05.2002 when he is compulsorily retired till the date of his superannuation on 30.11.2015. Hence the prayer for back wages is rejected. The order regarding quashing of compulsory retirement is already confirmed by Hon'ble High Court and now the issue of back wages too stands resolved.
37. The parties are directed to bear their respective cost of this O.A.
38. Registry to forward certified copy of this order to both the parties at the earliest.
(R. Vijaykumar) (Arvind J. Rohee)
Member (Administrative) Member (Judicial)
kmg*/B/H.
31 OA No.398/2011