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2008 DIGILAW 152 (GAU)

Suresh Paul Singh Yadav v. Union of India

2008-02-24

HRISHIKESH ROY

body2008
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. P.K. Tiwari, learned Counsel appearing for the Review Applicant. Also heard Mr. A.C. Buragohain, learned standing counsel for the CBI. 2. This application is filed to seek review of the declaration made in paragraph 36 of the judgment and order dated 24.07.07 passed by this Court in W.P. (C) No. 4888/05, whereby, this Court held that as the Petitioner had not rendered service during his suspension period, will not be entitled to any back wages but would only be entitled to arrear subsistence allowance. 3. Mr. P.K. Tiwari, learned Counsel points out that this Court while allowing the writ petition has held in categorical terms that only because of the failure of the CBI, the Petitioner has been kept under prolonged suspension from 26.04.2000 to 30.03.07. Referring to the above findings against the CBI, the learned Counsel submits that under such circumstances, withholding of back wages on reinstatement after suspension, on the principle of "no work no pay" should not have been ordered by this Court. The learned Counsel further submits that there is no severance of relationship between the employer and the employee during the concerned period and since it is already concluded that the prolonged suspension of the writ Petitioner was occasioned only due to the lapses of the CBI and the Petitioner despite his willingness was prevented from rendering service, there should have been a positive direction for payment of all the arrear wages. 4. The learned Counsel refers to the provisions of FR 54-B which requires the authorities to consider and make a specific order regarding the pay and allowances payable to a reinstated Government servant, after his suspension. Mr. Tiwari draws attention of the Court to the office order No. 6/07 dated 17.11.07 passed by the D.I.G, CBI and points out from the said order that only because of the paragraph 36 declaration made by the Court, the CBI authorities without making any consideration on merit under FR 54-B, has ordered that the Petitioner will not be entitled to back wages. In fact in the said order dated 17.11.07 it has been further held, that the "period under suspension will not be considered as spent on duty." Accordingly it is submitted that the declaration made in paragraph 36 of the judgment has been unfairly made the basis by the CBI authorities, to deny a fair consideration of benefits under FR 54-B to the Petitioner. Learned Counsel further contends that if such an order purported to have been passed under FR 54-B would have been passed while the Petitioner was under suspension, said order could have been challenged by the Petitioner. 5. Mr. Tiwari submits that during the hearing of the writ proceedings, there was no occasion for any submission to be made on entitlement to back wages and in view of the categorical finding of this Court on the lapses of the CBI, the declaration on non-entitlement to back wages, should not have been made by the Court and this portion of the earlier order is liable to be reviewed. 6. Attention of this Court is drawn to the provisions of FR 53(1)(i) to submit that when the Petitioner was suspended as far back as on 26.04.2000, the authorities ought to have considered payment of enhanced subsistence allowance under FR 53(1)(i), and granting of only 50% of the pay as subsistence allowance, for such prolonged suspension was not justified. 7. The learned Counsel refers to the following judgments of the Supreme Court to contend that Review of the judgment, to correct the error indicated above would be justified by the Writ Court: (1) S. Nagaraj v. State of Karnataka 1993 Supp (4) SCC 595 (pr. 18, 19). (2) Common Cause v. Union of India (1996) 6 SCC 667 (pr. 155. 179). (3) UP SRTC Ltd. v. Sarada Prasad Misra (2006) 4 SCC 733 (pr 16). (4) Allahabad Jal Sans than v. Daya Shankar Rai (2005) 5 SCC 124 (pr 6,16). (5) Srikantha S.M. v. Bharath Earth Movers Ltd. (2005) 8 SCC 314 (pr 28, 29 & 30). (6) State of Kerala v. E.K. Bhaskaran Pillai (2007) 6 SCC 524 (pr 4). (7) FCI v. SEIL Ltd (2008) 3 SCC 440 (pr. 25). 8. Par contra, Mr. (5) Srikantha S.M. v. Bharath Earth Movers Ltd. (2005) 8 SCC 314 (pr 28, 29 & 30). (6) State of Kerala v. E.K. Bhaskaran Pillai (2007) 6 SCC 524 (pr 4). (7) FCI v. SEIL Ltd (2008) 3 SCC 440 (pr. 25). 8. Par contra, Mr. A.C. Buragohain, learned standing counsel for the CBI contends that the order directing that the Petitioner shall not be entitled to back wages has been passed by the court, after due consideration of all the relevant materials and under such circumstances, exercise of Review Power by the Court would not be justified. Mr. Buragohain further submits that order under FR 54-B was not passed by the CBI authorities, during the suspension period because of the ongoing court proceedings and the CBI authorities decided to wait the finalization of the litigation process, before passing any order, either under FR 53(1)(i) or under FR 54-B. 9. Before proceeding further with this Review Application, it would be appropriate to take note of the decisions relied upon by the Petitioner's counsel to examine the extent of the Review Power of the court. In S. Nagaraj (supra), the Supreme Court has held that: 18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised die jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. As per the above ratio in S. Nagaraj, the Supreme Court held that technicalities of the law should not come in the way of rendering justice and it has been further recorded that the law bends before justice. 10. The above passages in S. Nagaraj (supra) was approved 3 years later by the Supreme Court in Common Cause (supra) where the Supreme Court quoted with approval another passage from S. Nagaaraj, where it has been recorded that: rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality.... 11. In FCI (supra), the Supreme Court held that: ...A clear error or omission on the part of the court to consider a justifiable claim on its part would be subject to review; amongst others on the principle of actus curiae neminem gravabit (an act of the Court shall prejudice none). 12. The UP SRTC Ltd. (supra) is a case of a claim for back wages, where the Supreme Court has held that there can be no precise formula whereby it can be indicated as to when, payment of full back wages should be allowed by the Court and approach of the Court should not be rigid or mechanical but flexible and realistic. 13. A similar view has been taken by the Supreme Court in Allahabad Jal Sansthan (supra) where it is held that relief of back wages has to be decided on the facts and circumstances of each case and the Court in every case must strive to arrive at a "golden mean." 14. The decision of the Srikantha S.M. (supra) also deserves attention in this case, the employee withdrew his resignation but the employer did not allow him to work. The decision of the Srikantha S.M. (supra) also deserves attention in this case, the employee withdrew his resignation but the employer did not allow him to work. The Court in such a situation held that the employer and the employee relationship was not severed and would continue till the employee attained the age of superannuation and the employee was not allowed to work he would be entitled to be treated to be in service, till he reaches the retirement age, and shall also be entitled to all benefits including arrears o f salary. 15. In the case of State of Kerala v. E.K. Bhaskaran Pillai (supra), the Supreme Court held that the principle "no work no pay" cannot be accepted as a rule of thumb in every case. 16. Having regard to the ratios in above decisions of the Supreme Court, I find that in a case where the Court falls into an error causing injustice to a party in litigation, in a deserving case, the Court can exercise the power of Review to correct the error. Rigid principle of 'no work no pay' should not be applied in every case. Justification for ordering payment of back wages on ordering reinstatement of a suspended employee, would depend upon facts of each case and the Court has to be pragmatic and flexible in such matters. It is also noticed that when the employer prevented a willing employee from rendering service, ordering of back wages in such cases was approved by the Apex Court. 17. In the instant case, the Petitioner was suspended on 26.04.2000 and although as many as 3 charge sheets have been filed against him, none of the charges were enquired into by the CBI. It has been recorded by this Court in the judgment dated 24.07.07 that because of the inherent weaknesses on the merit of the charges levelled against the Petitioner, the CBI did not proceed to held any enquiry into the charges and in fact the first charge was dropped by the CBI itself. The Petitioner who was on deputation to the CBI from the UP Police, could be reinstated in service only after 7 years of prolonged suspension and during the entire period, his service benefits such as, enhanced subsistence allowance, leave encashment, medical reimbursement etc. were denied to him. 18. The Petitioner who was on deputation to the CBI from the UP Police, could be reinstated in service only after 7 years of prolonged suspension and during the entire period, his service benefits such as, enhanced subsistence allowance, leave encashment, medical reimbursement etc. were denied to him. 18. In several passages in the judgment passed by this Court on 24.07.07, the lapses of the CBI have been noted and it is also held that, it is entirely due to the fault of the CBI who have not dealt fairly with the Petitioner, he was kept under prolonged suspension and although the Petitioner was willing to rejoin his duties under the UP Police, because of the lapses of the CBI, the Petitioner could not rejoin his post. 19. Although the above adverse conclusions against the CBI were recorded by the Court while rendering the judgment in favour of the writ Petitioner, this Court without having any occasion to consider any submission either by the counsel for the Petitioner or by the counsel for the CBI, on the entitlement of back wages, declared that as the Petitioner had not rendered service during the suspended period, he will not be entitled to back wages. 20. As has been already held by the Supreme Court in State of Kerala v. E.K. Bhaskaran Pillai (supra), that there cannot be a rule of thumb of non-entitlement of back wages, when no services are rendered, I find herein that no discussion on the other relevant circumstances present in the case were noted by the Court, while deciding that the Petitioner will not be entitled to back wages, only on the ground that he had not rendered service during the aforesaid period. 21. It is seen from the order dated 17.11.07 passed by the DIG of the CBI that the said order purportedly passed under FR 54-B, makes no consideration on merit on the entitlement of back wages. But back wages have been held to be unjustified, only because of the declaration made by the Court in para 36 of the judgment dated 24.07.07. The CBI in the said order dated 17.11.07 also held that suspension period will not be considered as spent on duty. 22. But back wages have been held to be unjustified, only because of the declaration made by the Court in para 36 of the judgment dated 24.07.07. The CBI in the said order dated 17.11.07 also held that suspension period will not be considered as spent on duty. 22. This order dated 17.11.07 of the CBI cannot be permitted to be justified by referring to the observations of the Court in paragraph 36, as it was never intended that the period under suspension shall not be considered as spent on duty But it appears that in a vindictive manner, because of the handle given in paragraph 36 of the judgment dated 24.07.07, other benefits such as leave encashment, ad hoc bonus, cash compensation claimed in the writ petition have not been considered on merit and the Petitioner has been unfairly denied the said benefits. 23. In the counter affidavit filed by the CBI in the Review petition, it is claimed that CBI is not responsible for the prolonged suspension of the Petitioner and various additional reasons are stated for not concluding the departmental proceedings drawn up against the Petitioner. It has also been averred that since the Petitioner was not fully exonerated of the charges, it is right to hold that the Petitioner is not entitled to back wages. 24. There are categorical findings in the judgment dated 24.7.07 that the CBI authorities are to be blamed for keeping the Petitioner under prolonged suspension. There is also a further finding that the CBI authorities did not hold any enquiry to enquire into charges against the Petitioner, because of the inherent weakness on the merit of the charges. Therefore there is no occasion to attribute any fault to the Petitioner, to give any justification for the CBI, to withhold the dues of the Petitioner. 25. Therefore having regard to the decisions of the Supreme Court referred to hereinabove and particularly the decision of the Supreme Court in E.K. Bhaskaran Pillai (supra), I am of the view that this Court erred in declaring that the Petitioner would not be entitled to back wages, only on the principle of no work no pay. The other relevant circumstances for considering entitlement to back wages were not taken into account by the Court. The other relevant circumstances for considering entitlement to back wages were not taken into account by the Court. Since this omission has resulted in injustice to the Petitioner, I am of the considered opinion that the declaration made in paragraph 36 of the judgment dated 24.07.07, ought to be reviewed. Same is accordingly recalled and delected in order to do complete justice to the Petitioner. 26. It is now held that following reinstatement of the Petitioner, he shall also be entitled to the back wages and other allowances for the period from 26.04.2000 to 30.03.07 when he remained under suspension. The payments already received by the Petitioner as subsistence allowance will be adjusted when arrear wages are paid. The necessary exercise for ensuing payments to the Petitioner as ordered, should be carried out expeditiously and preferably within 6 months from today. A copy of this order be furnished to Mr. A.C. Buragohain for necessary communication to the CBI authorities. 27. With the above direction, this Review Petition stands allowed to the extent indicated above.