Allahabad High Court
State Of U.P. Through Prin. Secy. ... vs Dr. Manoj Kumar Sharma on 5 March, 2020
Bench: Govind Mathur, Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Chief Justice's Court Case :- SPECIAL APPEAL DEFECTIVE No. - 127 of 2020 Appellant :- State Of U.P. Through Prin. Secy. Medical &Health Lko & Ors. Respondent :- Dr. Manoj Kumar Sharma Counsel for Appellant :- C.S.C. Counsel for Respondent :- Anuj Kudesia Hon'ble Govind Mathur,Chief Justice Hon'ble Chandra Dhari Singh,J.
1. Vakalatnama filed today in by Sri Anuj Kudesia Court on behalf of opposite party no.1 is taken on record.
2. This appeal is barred by limitation from 179 days, ignoring the same, we have examined merits of the case.
3. By an order dated 18.09.2003, the respondent-petitioner was transferred to Badaun as Medical Officer. The order of transfer dated 18.09.2003 was not served upon the respondent-petitioner, therefore, he approached this Court by way of filing a petition for writ to have a direction for respondent to issue an order of posting. The writ petition came to be accepted by a learned Single Bench of this Court on 26.09.2016 by arriving at a definite conclusion that an order of transfer was never served upon the respondent-petitioner. A direction accordingly was given to issue a fresh order of posting and while doing so, it was left open for the appellant-respondent to decide the matter relating to payment of back wages in accordance with law.
4. In compliance of the judgment aforesaid, an order of posting was issued on 28.12.2016 but no order was passed with regard to payment of of back wages. The appellants-respondents however decided to proceed against the respondent-petitioner with a disciplinary action that was subsequently withdrawn.
5. The respondent-petitioner then approached this Court to have a direction for respondents for grant of back wages for the period commencing from 18.09.2003 to 28.12.2016. Learned Single Bench by the judgment impugned disposed of the petition for writ with a direction as under:
"40. Hence, taking a holistic view, this Court is of the opinion that ends of justice would be served if the petitioner is granted 50 % back wages for the period 05.07.2003 to 28.12.2016 treating the petitioner to be in continuous service. As far as the other consequential benefits, admissible under law, are concerned the respondents in the impugned order also admit that the same are to be given to the petitioner.
41. Thus, in the facts and circumstances as enumerated above, coupled with the law as traced, the writ petition deserves to be allowed. The office memorandum dated 27.02.2019 is quashed and set aside. The respondents are directed to calculate and pay 50 % of the back wages to the petitioner for the period 05.07.2003 to 28.12.2016 and complete the entire exercise of not only paying the aforesaid but also granting all the consequential benefits which the petitioner is entitled in accordance with law within a period of 4 months from the date a certified copy of this order is placed before the concerned Authority.
42. With the aforesaid, writ petition stands allowed in the aforesaid terms. However, there shall be no order as to costs."
6. Being aggrieved by the same, the instant appeal is preferred.
7. It is submitted by learned Counsel appearing on behalf of appellants that learned Single Bench erred while allowing 50% of back wages in view of the fact that the respondent-petitioner was in gainful employment and for that period, he also get his income tax assessed and paid requisite tax.
8. We do not find any merit in the argument advanced. Learned Single Bench in quite unambiguous terms after examining all relevant aspects of the matter including factual background held that the employer failed to satisfy that the respondent-petitioner was in any gainful employment. We also do not find any adequate material available on record in that regard. It would also be appropriate to state that under Article 226 of the Constitution of India, the court exercises a broad discretion based on judicious application of mind and that is not required to be interfered with in appellate jurisdiction unless that is in violation of statutory provisions or is otherwise perverse. The order impugned does not suffers from any such error. Hence we are not inclined to interfere with the same.
9. The appeal hence is dismissed.
(Chandra Dhari Singh,J) (Govind Mathur,CJ) Order Date :- 5.3.2020 akverma