Jammu & Kashmir High Court
Ghulam Hussain vs . Union Of India And Ors. on 3 April, 2019
Equivalent citations: AIRONLINE 2019 J AND K 200
Bench: Chief Justice, Tashi Rabstan
Serial No. 32
Suppl. List-02
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPASW No.208/2018
Date on which case reserved: 27.02.2019.
Date of order: 03.04.2019
Ghulam Hussain vs. Union of India and Ors.
Coram:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
Appearance:
For the petitioner/appellant (s) : Mr. Sachin Dogra, Adv
For the Respondent(s) : Mr. Vishal Sharma, ASGI.
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes
Gita Mittal,CJ
1. By way of the instant Letters Patent Appeal, the appellant assails the judgment dated 01st October, 2018 passed by the learned Single Judge dismissing the writ petition challenging the order dated 18th March, 2009 passed by the Commanding Officer, 16 Bn., CRPF, Chatha, Jammu (respondent No.5 herein).
2. The facts giving rise to the instant appeal to the extent necessary are extracted hereafter:-
(i) While working as Head Constable with the Central Reserved Police Force (CRPF hereinafter), the appellant was placed under suspension pending disciplinary proceedings. After completion of a disciplinary enquiry against the petitioner, the report was submitted to the disciplinary authority which proceeded under section 11(1) of the CRPF Act, 1949 and by the order dated 26th February, 2000, imposed the penalty of compulsory retirement upon the appellant. This compulsory retirement was challenged LPASW No.208/2018 Page 1 of 19 by way of writ petition being SWP No.302/2000, which was disposed of by the order dated 25th May, 2000 directing the petitioner to prefer an appeal to the respondent No.4. The appeal of the petitioner was dismissed by the order dated 12th September, 2000 by the respondents.
(ii) Contending that this order was not in accordance with law, the petitioner filed SWP No.1891/2000 seeking the following prayers:
"(i) Writ of certiorari, quashing the order issued by the respondent No.4 vide No.R.XIII-4/2000-DA-II (RANGE) dated the 12th Sept‟ 2000, which is illegal and against the facts and law and is liable to be quashed as while deciding the appeal of the petitioner, the respondent No.4 has not been followed the procedure and law, AND May also quashing the order issued by the respondent No.5 vide No.P.VIII-3/99-EC-II, dt. 26.2.2000 which is also illegal and arbitrary and against the law.
(ii) Writ of mandamus, commanding the respondents to reinstate to the petitioner in the department as the petitioner wants to serve the department more."
(iii) This writ petition was allowed by the court by the order dated 18 th October, 2001 (Page -72 to 87) holding that compulsory retirement was not one of the punishments enumerated under section 11(1) of the CRPF Act, 1949, inasmuch as section 11(1) of the CRPF Act enabled the authority to impose only minor punishments and, therefore, the impugned order of compulsory retirement fell outside the scope of section 11(1) of the CRPF Act, 1949. The court further held as follows:
"Independently of the above, respondents have taken note of past misconduct of the petitioner also. If this was to be done, then, this should have been brought to the notice of the petitioner. As this has not been done, therefore, the final order of punishment cannot be sustained. Such a view was expressed by the Supreme LPASW No.208/2018 Page 2 of 19 Court in the case of the State of Mysore v. Manche Gowda, AIR 1964 SC 506. In addition to the above, even in the matter of imposing punishment, there are number of judicial precedents to the effect that the punishment should commensurate with the lapse attributed to the concerned person. Some of these decisions are noticed below:-
In Ved Prakash Gupta v. M/s Delton Cable Co (P) Ltd, 1984 (2) SLR 5, the Supreme Court of India observed that the punishment should not be disproportionate to the offence proved. Similar view was expressed in State of U.P. Sadanand Mishra, (1984) 2 LCD 294.
With regard to the quantum of punishment, the Allahabad High Court in Rajesh Kumar Tripathi v. State of U.P., 1993 (3) SCT 274, observed that the punishment of dismissal was not commensurate with the alleged acts of the delinquent. The view expressed by the Supreme court of India in the case of V.R. Katarki v. State of Karnatka, AIR 1991 SC 1241, was noticed. What was observed by the Supreme Court be noticed again:
"Ordinarily justification of the quantum of punishment with a disciplinary action is not for the court to decide and there have been occasions this court has taken interference by the High Court on quantum of punishment as an act in excess of jurisdiction while we are prominent of that fact. Keeping in view the residue of the charges in view we are inclined to hold that the dismissal of the appellant from service was out of proportion."
An employee was absent for two days. He was ordered to be reinstated but was held not entitled to back wages-Mandeep Kumar v. State of Haryana, 1996(2) SCT 306. This view was expressed by the Supreme Court of India.
In Punjab State v. Surjit Singh, 1997(2) SCT 87, where was absence of 23 hours and 5 minutes, reinstatement was ordered without back wages. See also Malkiat Singh v. State of Punjab, 1996(2) SCT 758.
A police constable was absent for 48 days. He suffered punishments in 12 years. He was dismissed. Direction was given to reconsider the quantum of punishment. See Krishan Lal v. State of Punjab, 1996(4) SCT 592."
(Emphasis by us) LPASW No.208/2018 Page 3 of 19
(iv) It is to be noted that the court noted the pronouncement of the Supreme Court reported at 1984 (2) SLR 5, Ved Prakash Gupta v. Dalton Cable Pvt. Ltd and another judgment reported at 1984 (21) CD 298, State of U.P. V. Sadanand, in which the Supreme Court held that punishment should not be disproportionate to the offence. The Division Bench also considered judgments on quantum of punishment including, inter alia, the pronouncement of the Supreme Court reported at AIR 1991 SC 1241 V R Kartikey v. State of Karnataka and the manner in which the punishments were moulded in the judgment reported at 1996 (2) SCT 306 Mandeep Kumar v. State of Haryana; 1997 (2) SCT 87 Punjab State v. Surjeet Singh; AIR 1996 (2) SCT 758 Malkiat Singh v. State of Punjab and AIR 1996 (4) SCT 592 Krishan Lal v. State of Punjab.
However, having held that the quantum of punishment with the disciplinary action was not for the court to decide, the Division Bench while setting aside the order dated 12th September, 2000 directed that "the petitioner shall stand reinstated leaving however the respondents to pass a fresh order in accordance with law. In doing so, they would examine the question as to whether the ultimate punishment which is imposed is commensurate with the lapse attributed to the petitioner and in this regard, they would be guided by the position of law noticed above."
(v) The respondents assailed the above judgment of the Single Bench by way of LPA(SW) No.38/2002 which was dismissed by the order dated 14 th September 2007 passed by the Division Bench. By this order, the Division Bench held that the writ court has rightly interpreted the provision of section 11(1) of the CRPF Act and consequently not committed any illegal or jurisdictional error in allowing the writ petition.
LPASW No.208/2018 Page 4 of 19(vi). It appears that when LPA(SW) No.38/2002 had come up for consideration, the Division Bench had directed that the implementation of the Single Bench judgment dated 8th October, 2001 passed in SWP No.1891/2000 would remain stayed and permitted the respondents to hold an enquiry afresh.
The respondents have failed to proceed in the matter in accordance with law or as directed.
(vii). A special leave petition filed by the official respondents before the Supreme Court of India was dismissed by an order dated 05 th September, 2008.
(viii). Inasmuch as the respondents failed to implement the directions passed by the learned Single Judge by the order dated 18 th October, 2001 despite the above position, the present petitioner was constrained to file a contempt petition being CPSWP No.39/2008. This contempt petition came up before the court on 13th May, 2009 when respondents informed the court that they had issued an order dated 18th March, 2009 in compliance of the directions. The contempt petition came to be disposed of by the court giving the liberty to the petitioner, if not satisfied with the order passed by the respondents, to challenge the same subject to all just exceptions.
(ix). So far as the order dated 18th March, 2009 passed by the respondents is concerned, the respondents had directed as follows:
"4. Individual report at unit Hqr. On 18.3.2009 (FN) and reinstated in service w.e.f 18.3.2009 (FN) accordingly and is hereby taken on the strength of this unit from the same date i.e. 18.3.2009 (FN).
5. The absence period from date of compulsory retirement to date of re-instatement i.e 27-2-2000 to 17.3.2000 is hereby regularized as qualifying service for pensionery purpose. However, above individual will not claim to any pay and LPASW No.208/2018 Page 5 of 19 allowances for above period for which he has not performed any duty."
(x). Aggrieved by the denial of the pay and allowances from 27 th February, 2000 to 17th March, 2009, the petitioner filed SWP No.01/2012 seeking the following prayers:
"(i) Allow this writ petition and
(ii) May by a writ of certiorari quash the impugned order dated 18.3.2009 to the extent that it denies pay and allowances from 27.2.2000 to 17.3.2009, and
(iii) May kindly issue writ of mandamus promoting the petitioner to the post of S.I. and fix the petitioner‟s pay on the grade since it became due to him and may also grant CA of 11 years along with HRA (Quarter allowance) for the past 11 years along with grade pay and 100% arrears of his service as has been granted to the similarly situated persons along with ration money, clothes, arrears of his service and allowance, 18% GPF with interest for past 11 years for the month of March and June till date, for the period regularized."
(xi). This writ petition was dismissed by the learned single judge by the judgment dated 01st October, 2018 holding, inter alia, as follows:
(i) that the petitioner upon his reinstatement was not entitled to claim back wages as a matter of right and that it dependent upon the facts and circumstances of each of the cases.
(ii) it was necessary for the employee laying a claim for back wages to plead and prove with aid of the evidence that during the period he remained out of action because of the order of his dismissal/discharge or termination, he was not gainfully employed anywhere and had no means to earn and maintain himself and his family. Once this burden is discharged, it is then for the employer to show that the employee was not entitled to any back wages on the principle „no work no pay‟ as during the period the employee was out of action, he was gainfully employed.
(iii) the order of compulsory retirement passed against the petitioner in the present case was not set aside by the court on LPASW No.208/2018 Page 6 of 19 its merits but on technical grounds and, therefore, while allowing the writ petition of the petitioner, the court permitted the respondents to pass a fresh order in accordance with law.
That while setting aside the penalty of compulsory retirement and reinstatement of the petitioner, the court did not direct that he would be entitled to back wages but gave liberty to the respondents to hold a fresh enquiry. The relief available to a party stood denied in the earlier writ petition and consequently could not be claimed in the subsequent writ petition, in that it would operate as res judicata."
(iv) There was no averment in the writ petition that during the relevant period, the petitioner was not gainfully employed anywhere. In the absence of such pleadings and denial of the relief in the earlier litigation, the petition for back wages was not maintainable.
3. This judgment has been assailed by the writ petitioner by way of present appeal.
Appellant‟s contentions
(i) The appellant has contended that the learned Single Judge has erred in law and on facts. It is submitted that the aforesaid findings are contrary to the record of the writ court. It is further contended by Mr Sachin Dogra, Advocate, that the learned Single Judge has relied on a judgment dated 20th September, 2018 passed by the Supreme Court of India in CA No.1756 of 2010 Rajasthan State Road Transport Corporation, Jaipur v. Shri Phool Chand (Dead) through L.Rs., which was pronounced after the writ petition (SWP No.01/2012) was reserved for pronouncement by the learned single judge. As such the appellant was deprived of the opportunity to place his submission that the judgment had no application in the facts and circumstances of the present case.
(ii) Learned counsel for the appellant vehemently contends that by the judgment dated 8th October, 2001 allowing SWP No.1891/2000, the court had held that the impugned order of compulsory retirement was not LPASW No.208/2018 Page 7 of 19 warranted in the facts of the case, was illegal and completely without jurisdiction. In this background, the finding by the learned Single Judge that the order of compulsory retirement dated 26 th February, 2000 was set aside on technical grounds, was not justified and was erroneous.
4. It is further submitted that the petitioner had categorically asserted that he was not gainfully employed during the period from the passing of the order dated 26th February,2000 of compulsory retirement till his reinstatement on the 17th March, 2009 and that this fact had been admitted by the respondent in the reply. In this background, given the admission of the respondents, the petitioner had completely discharged the onus upon him to establish that he was not gainfully employed no further evidence was required to prove this fact. Learned counsel has also submitted that no prayer for grant of back wages had been made in the writ petition, SWP No.1891/2000. The same was never an issue therein inasmuch as the petitioner had questioned his compulsory retirement. The court never had occasion to consider the aspect of entitlement of back wages in the previous writ for the reason that the court was of the view that the respondents were required to reconsider the matter so far as the imposition of punishment was concerned. This reconsideration would include the penalties or benefits which would flow in favour of the petitioner or vest upon him, after a final consideration by the respondents. It is further submitted by the petitioner that despite the judgment dated 18th October, 2001 directing the respondents to pass the order reinstating the petitioner as well as granting opportunity to pass fresh order, the respondents failed to do so.
5. Even when the LPA No.38/2002 filed by the respondents assailing the judgment dated 18th October, 2001 was considered and an interim order of stay passed, the court gave liberty to the respondents to conduct enquiry and pass the fresh orders. The submission on behalf of the appellant is that the respondents failed to proceed in accordance with law even at that stage.
LPASW No.208/2018 Page 8 of 19Respondents‟ contentions
6. On the other hand, it is vehemently contended by Mr. Vishal Sharma, learned ASGI that while passing the judgment dated 08 th October, 2001 (in the first writ petition SWP No.l891/2000 (at page 86), the court considered the issue of entitlement of the petitioner to back wages. Mr Sharma further submits that even if this submission was rejected, the appellant had failed to discharge the onus of pleading and proving that he was not gainfully employed during the period that he was out of service with the respondents. In this background, the appellant was disentitled to grant of back wages.
7. Discussion
(i) We have been taken through the entire record of the case and have heard learned counsels for the parties. We have given our considered thought to the submissions made before us.
8. It is well settled that while setting aside an order of termination of service, back wages cannot be awarded by a court as of right to the workman only because the court has set aside the order of termination of service and directed reinstatement in service of the workman. It is essential in such cases for a workman to plead and prove with the aid of evidence that, after the termination from service, he was not gainfully employed anywhere and had no earnings to maintain himself and his family. The employer is also entitled to prove it otherwise against the employee, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. The initial burden therefore rests on the employee. (Ref: Para 12 of the judgment dated 20th September, 2018 passed by the Supreme Court in Civil Appeal No.1756 of 2010, Rajasthan State Road Transport Corporation, Jaipur v. Shri Phool Chand (Dead) Through L. Rs.).
LPASW No.208/2018 Page 9 of 199. It has been contended by the learned counsel for the appellant that the judgment in Rajasthan State Road Transport Corporation, Jaipur v. Shri Phool Chand (Dead) through L.Rs., was rendered in the context of an industrial dispute which was the subject matter of adjudication before the labour court. The labour court had granted the full back wages in favour of the legal heirs of the deceased employee which was challenged by the employer. On the question of the quantum of back wages, in Para 13 of the pronouncement, the Supreme Court had observed as follows:
"13. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are M.P. State Electricity Board vs. Jarina Bee (Smt.), (2003) 6 SCC 141, G.M. Haryana Roadways vs. Rudhan Singh, (2005) 5 SCC 591, U.P. State Brassware Corporation vs. Uday Narian Pandey, (2006) 1 SCC 479, J.K. Synthetics Ltd. Vs. K.P. Agrawal & Anr., (2007) 2 SCC 433, Metropolitan Transport Corporation vs. V. Venkatesan, (2009) 9 SCC 601, Jagbir Singh vs. Haryana State Agriculture Marketing Board & Anr., (2009) 15 SCC 327) and Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors., (2013) 10 SCC 324."
10. We shall consider the issue of quantum of back wages which can be awarded at a later stage. For the time being, confining the consideration to the issue in the present case as to whether the petitioner had laid down to the material on record with regard to his non-employment and the factual background in his pleadings, our attention has been drawn to the case set up by the writ petitioner in SWP No.01/2012. In this regard we find that the petitioner in paras 7 (a), (b), (c), (d), (e) has, inter alia, stated as follows:
(a) Because the petitioner was placed under compulsory retirement by the respondent w.e.f. 27.2.2000 to 17.3.2009 LPASW No.208/2018 Page 10 of 19 which was found to be illegal by the Hon‟ble Court and which was upheld by the Supreme Court. Therefore the order dated 18.3.2009 is bad so far as it denies claim of pay and allowances for the period dated 27.2.2000 to 17.03.2009 on the ground that he has not performed any duty.
(b) Because the petitioner was not able to perform duty for the period of eight years as the respondents did not allow him to do so on the pretext of the petition pending against him. The petitioner did not choose to remain out of service, therefore, denial of pay and allowance for the aforesaid period has violated the right of the petitioner to receive the benefits of the judgment which he has earned.
(c) Because the petitioner has spent eight years in penury and tried to maintain and look after his family without any source of income.
(d) Because the petitioner cannot be denied wages to which he was lawfully entitled as it was the respondents who did not allow him to work.
(e) Because the order though regularizes the service of the petitioner for pensionary benefits but denies the claim of wages on the ground that he has not performed any duty ignoring the fact that he was precluded for performing duty because of the order of compulsory retirement."
(Emphasis by us)
11. The respondents have filed reply/objections to the writ petition dated May, 2012 asserting as follows:
"Para 7(a) That this office order No.J.II.I/2000-16-EC-II dated 18-3-2009 vide which EX HC/GD Ghulam Hussain reinstated in service w.e.f. 18-3-2009 was issued in accordance with the Law as directed in Judgement dated 08- 10-2001 of Hon‟ble High Court of J&K at Jammu.
7(b) That the petitioner had filed a petition (SWP No.1891/2000) in the Hon‟ble High Court of J&K at Jammu against the Order No.P.VII/3/99-EC-II dated 26.2.2000 for re- instating into service alongwith all emoluments of service, including seniority and monetary benefits. The Single Bench of Hon‟ble High Court of Jammu and Kashmir at Jammu vide its LPASW No.208/2018 Page 11 of 19 judgment dated 8.10.2001 had set aside the "Compulsory Retirement" order of the petitioner and directed to re-instate the petitioner. In the judgment, Hon‟ble High Court did not grant any benefits to Ex HC Ghulam Hussain (Petitioner) for the period from 27.02.2000 to 17.3.2009.
7(c) No comments 7(d) Same as para 02 above.
7(e) That this office Order No.J.II.I/2000-16-EC-II dated 18.03.2009 vide which Ex-HC/GD Ghulam Hussain was reinstated in service w.e.f 18.03.2009 clearly mentions that he will not claim any pay and allowances for above period for which he has not performed any duty."
12. We have extracted above the prayers made by the petitioner in SWP No.1891/2001. The submission of the respondents in para 7(b) of the reply that the petitioner had made a claim for reinstatement in service "along with all emoluments of service including seniority and monetary benefits"
is incorrect and unfounded. Furthermore, the petitioner had categorically pleaded in Para 7(c) that the he had spent eight years in penury without any source of income. In Para 7(b),(d) & (e), the petitioner clearly stated that it was the respondents who did not allow him to perform duty for the period of eight years on the pretext of petition pending against him; that the petitioner did not choose to remain out of service and consequently could not be denied wages to which he was lawfully entitled and it was the respondents who did not allow him to work.
13. These categorical averments regarding the petitioner being without any source of income and the petitioner having spent eight years in penury as well as the averment that the petitioner was not allowed to work by the respondents are admitted by the respondents.
14. In this background, no further proof of facts admitted by the respondents was required and the petitioner had fully discharged the onus and burden of proof to establish that he was not gainfully employed during the period he LPASW No.208/2018 Page 12 of 19 remained out of service. Additionally it also stood established that the petitioner was kept out of job for the whole period.
15. So far as the question as to whether the issue of back wages had arisen had been available and denied in the earlier writ petition is concerned, it needs to be borne in mind that the petitioner had laid a substantive challenge to the order of premature retirement against him. The learned Single Judge while passing the judgment on the 8th October, 2001 had clearly observed that punishment imposed had to be proportionate to the charges which were laid against the petitioner. While passing the order, the court considered the several options which would be available to the respondents when considering the proportionality of the punishment, which could include as the first option, reinstatement with full back wages (Ref: 1996 (2) SCT 306, Mandeep Kumar v. State of Haryana), as the second option, reinstatement without back wages (Ref: 1996 (2) SCT 758, Malkiat Singh v. State of Punjab) and as the third option, of (Ref: 1996 (94) SCT 592, Krishan Lal v. State of Punjab) Page 86 and 87).
16. While issuing the directions by the judgment dated 18th October, 2001,, the court specifically directed that the petitioner shall stand reinstated, however, the respondents were free to "pass fresh order in accordance with law" and that while passing the final order, the court would examine the question as to whether the element of punishment was commensurate with the lapse attributed to the petitioner guided by the "position of law noticed above". There is nothing in the judgment of the learned Single Judge showing any consideration of the question as to whether in the fact and circumstances of the present case, the appellant was entitled or disentitled to grant of back wages.
17. So far as the prayer for back wages was concerned, given the fact that the writ court remanded the matter for consideration afresh to the respondents, LPASW No.208/2018 Page 13 of 19 the issue of the back wages was never considered by the court. We are, therefore, unable to sustain the finding of the learned Single Judge in the impugned judgment dated 1st October, 2018 that the issue of back wages had been raised and decided against the petitioner by the judgment dated 18th October, 2001 and that such finding would operate as res judicata.
18. Clearly the court did not give a view in the matter on the issue of back wages for the reason that it was leaving the matter for reconsideration to the respondents. The learned Single Judge noted the judicial precedents and the options which were available upon the reconsideration and left it to the wisdom of the official respondents who were required to reconsider the matter and pass the order in the light of the "position of law noticed above". Therefore, the petitioner cannot be denied back wages on the principle that a relief was available in a previous proceeding and had not been claimed i.e. upon application of the principles under Order II Rule 2 of the CPC.
19. Even if we were to agree with and to sustain the findings of the learned Single Judge on this aspect, the denial of the back wages for the entire period that the petitioner has remained out of service has to be considered from another angle. It has to be seen as to whether the appellant could be denied wages for the entire period from the date of his termination till he joined duties? In the present case, the order of termination dated 26 th February, 2000 came to be set aside by the order dated 18 th October, 2001. The respondents were cognizant of the directions of the learned Single Judge made therein setting aside the order of the compulsory retirement of the petitioner, directing reinstatement and enabling the respondents to consider the matter and pass an order afresh. Yet they consciously chose comply with these directions and thereby prevented the petitioner from resuming his duties even after 18th October, 2001.
LPASW No.208/2018 Page 14 of 1920. Even while granting stay of the order of the learned Single Judge, in the appeal LPASW No.38/2002 which came to be filed by the respondents, the Division Bench gave liberty to the respondents to pass a fresh order. The respondents again opted not to do so. The dismissal on 14 th September, 2007 of the appeal of the respondents by the Division Bench also did not persuade the respondents to act in accordance with law. We find that even the rejection by the Supreme Court of India of the Special Leave Petition on 5th September, 2008 did not persuade the respondents to comply with the directions to hold enquiry and pass orders afresh. It was only after the appellant was compelled to file the contempt petition being CPSWP No.29/2009 that the respondents came forward with the order of reinstatement dated 18th March, 2009 finally.
21. Even if it can be held that the appellant could be denied wages for the reason that the writ court while passing the order dated 18 th October, 2001 had denied him the same, what about the period after 18th October, 2001 till 18th March, 2009? This is the period when the appellant had a judgment in his favour, yet the respondents admittedly did not permit him to join duty.
22. So far as the issue of entitlement to back wages of a person who was not permitted to join duties is concerned, the principle which applies stands explained by the Supreme Court in the pronouncement reported at AIR 2015 SC 2904, Ramesh Kumar v. U.O.I, placing reliance on the judicial precedent in State of Kerala v. E. K. Bhaskara Pillai (2007) 6 SCC 524, in the following terms:
"In normal circumstances when retrospective promotions are effected, all benefits flowing therefrom, including monetary benefits, must be extended to an employee who has been denied promotion earlier. So far as monetary benefits with regard to retrospective promotion is concerned that depends upon case to case. In State of Kerala & Ors. vs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524, this Court held that the principle of "no work no pay" cannot be accepted as a rule of thumb and the matter will have to be considered on a case to case basis and in para (4), it was held as under:-LPASW No.208/2018 Page 15 of 19
"... We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle "no work no pay" cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also."
13. We are conscious that even in the absence of statutory provision, normal rule is "no work no pay". In appropriate cases, a court of law may take into account all the facts in their entirety and pass an appropriate order in consonance with law."
(Emphasis by us) For this reason as well, the relief of back wages sought by the appellant cannot be denied to him solely by application of the principle of „no work no pay‟.
23. So what would be the quantum of back wages that the appellant would be entitled to. The petitioner has placed the judgments reported at 1991 AIR (SC) 2010 Union of India v. L V Jankiraman; 2016 AIR (SC) 157 Shobha Ram Raturi v. Haryana Vidyut Prasaran Nigam Ltd.; 2015 (8) SCC 461 Bilaspur Raipur Kshetriya Gramin Bank v. Madan Lal Tandon; 2015AIR (SC) 2904, Ramesh Kumar v. U O I; 2013(7) SCC 595 State of Uttar Pradesh v. Dayanand Chokraworty and ors.; and the judgment dated 20th September, 2018 passed in Civil Appeal No.1756 of 2010, Rajasthan State Road Transport Jaipur v. Shri Phool Chand in support of his claim for full back wages.
LPASW No.208/2018 Page 16 of 1924. In L V Jankiraman, the petitioner had been denied promotion on account of past penalties. The Supreme Court has observed that the normal rule „no work no pay‟ is not applicable to the case where the employee, although is willing to work, is kept away from work by the authorities for no fault of his. This very principle was applied in the judgment reported at AIR 2016 SC 157, Shobha Ram Raturi v. Haryana Vidyut Prasaran Nigam Ltd.
25. In Madan Lal Tandon, the disciplinary enquiry held against the respondent had been set aside for non compliance of the requirements of law with regard to non supply of document to the respondent along with the charge sheet; non supply of relevant documents on which the findings were recorded against him as well as non furnishing of list of documents of witnesses. The Supreme Court observed that the High Court had held that the respondent was out of employment since 01 st October, 1991 and had directed payment of a lumpsum amount of money. In the facts and circumstances of the case, the lumpsum amount of Rs.5,00,000/- towards the claim of salary was held to be just and proper as well as all consequential benefits.
26. In the present case, the petitioner was charge sheeted on 04th September, 1999. The petitioner faced disciplinary proceedings on two charges. The first charge related to his refusing to comply with the orders of proceeding and complying with the movement orders of 5th August, 1999 and on 21st August, 1999. The second charge laid against him was that he absented/deserted from camp on 21st August, 1999 at 1800 hrs and reported back on 23rd August,1999 at 0615 hrs, i.e. unauthorized absence for a period of two days. Finding the petitioner guilty, the major punishment of compulsory retirement was imposed upon him with effect from 26 th February, 2000 without issuance of the requisite notice in accordance with law.
LPASW No.208/2018 Page 17 of 1927. The writ court by its judgment dated 18th October, 2001 has held that the proportionality of the punishment had to be considered afresh by the respondents and the punishment had to be proportionate to the charges against the appellant.
28. It is also an admitted fact that the petitioner had not rendered any service for the period between 26th February, 2000, when he was compulsorily retired till 18th October, 2001 when the judgment was passed because of the order of compulsory retirement. The petitioner was thus prevented from performing duties from 26th February, 2000 because of the order of compulsory retirement which came to be set aside only on 18 th October, 2001.
29. Even after the judgment came to be set aside by the order dated 18 th October, 2001, the petitioner was not permitted to join duties despite the direction made on 12th of September,2000 to the effect that the petitioner would stand reinstated. The dismissal of LPA(SW) No.38/2002 on 14 th of September, 2007 and that of the Special Leave Petition by the order dated 05th of September, 2008 by the Supreme Court of India also did not persuade the respondents to act fairly. It was only after the petitioner filed the contempt petition being CPSWP No.39/2008, that the respondents came to pass the order dated 18th of March, 2009 taking the petitioner on the strength of the unit with effect from the forenoon of the same date. In this background, the normal rule „no work no pay‟ is not applicable to the present case inasmuch as from the 26th of February, 2000 till 18th of March, 2009, the petitioner was kept away from work by the respondents for no fault of his. The view that we have taken is supported by the principles laid down by the Supreme Court in L V Jankiraman and Shobha Ram Raturi.
30. In view of the above, we direct as follows:
(i) The judgment dated 1st of October, 2018 is set aside and quashed.LPASW No.208/2018 Page 18 of 19
(ii) It is held that the petitioner is entitled to full back wages w.e.f.27th of February, 2000 till 18th of March, 2009 when he was permitted to join duties.
(iii) The respondents shall compute the arrears payable to the petitioner and communicate the same to him within a period of four weeks from today.
(iv) The respondents shall make payment of the amount due and payable to the appellant within a period of two weeks thereafter.
(v) In case the petitioner has any dispute with the computation by the respondents, it shall be open for him to assail the same in accordance with law.
The appeal is allowed in the above terms.
(Tashi Rabstan) (Gita Mittal)
Judge Chief Justice
Jammu
03.04.2019
Raj Kumar
Judgment is pronounced by me in terms of Rule 138(4) of the Jammu and Kashmir High Court Rules, 1999.
(Gita Mittal) Chief Justice Jammu.
03.04.2019 RAJ KUMAR 2019.04.03 14:46 I attest to the accuracy and integrity of this document LPASW No.208/2018 Page 19 of 19