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2008 DIGILAW 631 (CAL)

Md Mohiuddin v. STATE OF WEST BENGAL

2008-06-27

KALYAN JYOTI SENGUPTA, PRASENJIT MANDAL

body2008
Judgment :- (1) THE judgment and order of the learned state Administrative Tribunal dated May 13, 2002 has been challenged by this application. The learned Tribunal rejected the petitioners claim of back wages for the period during which he remained discharged from services and upto the date of reinstatement, namely, commencing from January 30, 1989 to October 1, 1993. (2) THE fact of the case leading to bringing action by the applicant is shortly put hereunder: the petitioner on or about August 2, 1988 was appointed probationary Police Constable and after completion of his training and joining duty he was discharged by an order dated January 30, 1989. The above order of discharge was challenged by filing a writ petition and he was successful therein by obtaining an order of reinstatement on September 13, 1991. The order of reinstatement was passed by Honble mr. Justice MAHITOSH MAJUMDAR (as His lordship then was) on September 30, 1991 not unconditionally or absolutely but liberty was given to the respondents to initiate regular disciplinary proceeding in terms of the rules. In the said order there has been no order for payment of back wages. From the narration of the fact recorded by the learned Judge, it does not appear that the petitioner prayed for back wages. In spite of the said order of reinstatement, the respondent did not carry out the same by reinstating the petitioner. As such, a contempt proceeding was initiated and ultimately on October 1, 1993 he was reinstated pending disposal of the contempt application. On recording such fact, contempt proceeding was disposed of without proceeding further. It is also to be noted that in the contempt proceeding there has been no relief for payment of back wages. (3) ON the aforesaid back ground the petitioner thereafter filed an application in 1997 for payment of back wages from the date of discharge and upto the date of reinstatement. The said application being O. A. 759 of 1997 was disposed of by an order dated August 5, 1997 directing the respondents to treat the said application as representation of the petitioner and dispose of the same by a speaking order within a stipulated time as mentioned therein. The said application being O. A. 759 of 1997 was disposed of by an order dated August 5, 1997 directing the respondents to treat the said application as representation of the petitioner and dispose of the same by a speaking order within a stipulated time as mentioned therein. (4) PURSUANT to the said order, a speaking order was passed by the officer concerned and rejected the claim of back wages on various grounds by an order dated September 22, 1997 which was again challenged by filing subsequent application being O. A. 1414 of 1997 on which the impugned judgment and order has been passed. (5) WE have gone through the impugned judgment and order and the reasoning given by the learned Tribunal wherefrom it appears to us that the learned Tribunal had not decided anything else nor directed its mind to the issues involved. Hence, according to us, the aforesaid judgment is not a product of lawful quasi judicial action. Hence, we think that this matter has to be examined in thread bare. (6) THE learned counsel for the petitioner submits that when no disciplinary proceeding has been initiated admittedly although leave was granted, the petitioner, therefore, was subjected to illegal and unnecessary order of elimination from services and as such, he was entitled to full back wages and particularly when order of reinstatement was passed on September 30, 1991 and in spite of his report in duty, he was not allowed to resume duty till October 1, 1993 when contempt proceeding was initiated. According to him, when there is no fault on part of his client, payment of full back wages for the period from January 30, 1989 to October 1, 1993 is a matter of course. (7) MR. Subrata Mukhopadhyay learned counsel appearing for the State, on the other hand, contends that the payment of back wages is not a matter of course. He contends that the order of reinstatement was passed giving liberty to proceed departmentally. Therefore, the court prima facie, found that there has been some ground for reinstatement. As such, the wages can be earned only when he is entitled to serve without any blot or blemish. According to him, this order of reinstatement does not entitle the applicant to claim any back wages under any circumstances. Therefore, the court prima facie, found that there has been some ground for reinstatement. As such, the wages can be earned only when he is entitled to serve without any blot or blemish. According to him, this order of reinstatement does not entitle the applicant to claim any back wages under any circumstances. He further argues that he was guilty of criminal act and so there were at all material times in contemplation of the disciplinary proceeding being initiated after reinstatement order was passed. He was reinstated on October 1, 1993. He was to be disciplinary proceeded with. As such, he cannot get any back wages. He further submits that under the present trend of law as settled by the supreme Court, back wages is not a matter of course or right. It has to be proved by the applicant that he was not gainfully engaged during the period he was kept out of the service in order to get the same. This initial burden lies on him and thereafter the burden shifts to the employees. This proposition of law has been well settled in the following decisions of the supreme Court Kendriya Vidyalaya Sangathan and Another v. S. C. Sharma AIR 2005 SC 768 : (2005) 2 SCC 363 : 2005-II-LLJ-153 : (2005)LIC 843, State of M. P. and Others v. Arjunlal rajak (2006) 2 SCC 711 : (2006)-II-LLJ-104 : (2006) LIC 1319 and M. P. State Electricity board v. Jarina Bee AIR 2003 SC 2657 : (2003)6 SCC 141 : (2003) 3 MLJ 1 (SC) : 2003-III-LLJ-244. (8) WE have considered the respective contentions of the learned counsel. We are of the view that the claim of the petitioner for back wages should be in this case bifurcated as far as period is concerned, the first period, namely, from the date of discharge on January 30, 1989 till September 30, 1991 when he was ordered to be reinstated and the subsequent period from September 30, 1991 till October 1, 1993 when he was actually reinstated. (9) IN this case factually the applicant cannot get any back wages during the period he remained discharged, namely from January 30, 1989 till September 30, 1991, for the simple reason, it does not appear, that he claimed any back wages in the writ petition filed earlier challenging the order of discharge. (9) IN this case factually the applicant cannot get any back wages during the period he remained discharged, namely from January 30, 1989 till September 30, 1991, for the simple reason, it does not appear, that he claimed any back wages in the writ petition filed earlier challenging the order of discharge. Therefore, such claim is obviously barred by the principle of the provision of Order 2, Rule 2 of the Code of Civil Procedure. His claim for back wages was not and still is not entertainable otherwise as the learned single Judge of this Court while passing order of reinstatement could have directed to make payment of the back wages. Therefore, this period is not to be considered at all so we do not grant any relief for this period. (10) NEXT question comes is whether he is entitled to get back wages from September 30, 1991 till October 1, 1993. (11) WE are of the opinion that the petitioner is entitled to the back wages during this period. The moment the order of reinstatement was passed, he should have been reinstated and then disciplinary proceeding could have been initiated but no such disciplinary proceeding has been initiated nor he was put under suspension but he was kept out of service. His claim for payment of wages crystallized the moment when the order of reinstatement was parsed till the actual order of reinstatement as he was ready to work. (12) NOW the question is at what rate he should be paid. (13) THE Supreme Court has held the view as rightly submitted by Mr. Mukhopadhyay that an employee cannot get back wages as a matter of course. He has to prove that he was not gainfully engaged elsewhere during the period when he was out of service. This burden of proof lies upon the applicant. (14) IN the case of Kendriya Vidyalaya sangathan and Another v. S. C. Sharma, (supra), the Supreme Court in paragraph 16 has summed up the position of law as follows: while doing so, the Supreme Court has followed earlier decisions rendered in the case of P. G. I. of Medical Education and Research v. Raj Kumar AIR 2001 SC 479 : (2001) 2 SCC 54 : 2001-I-LLJ-546. "applying the above principle the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was a natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard. " (15) THE aforesaid principle has been followed in the subsequent decisions of supreme Court M. P. State Electricity Board v. Jarina Bee (supra) and in the case of State of M. P. v. Arjunlal Rajak (supra), in paragraph 8. We, respectfully accepting the aforesaid proposition of law, hold that applicant cannot get back wages unless he pleads and proves that he was not gainfully engaged elsewhere. Making of application by the applicant at the subsequent stage is a factor and/or indicator of his claim for back wages. But we do not find any pleading that he was not gainfully engaged. We, therefore, think fit it proper that a chance should be given to the applicant to prove it and he, therefore, will swear an affidavit and file before the competent authority stating whether he was gainfully engaged or not during the period computing from September 30, 1991 till October 1, 1993 meaning thereby what was his source of livelihood during this period. (16) NOW next question remains at what rate he should be paid. (17) ACCORDING to us, the order of reinstatement was not absolute as there was a possibility of initiating disciplinary action against him after reinstatement and had the disciplinary proceeding been initiated, there was a possibility of order of suspension being passed. In that eventuality the petitioner could not have earned anything else except could claim subsistence allowance. The period of suspension could fetch 50% of the salary as subsistence allowance for first six months thereafter 75% of the salary beyond the same. Ultimately nothing has been done by the department so his claim for back wages had been crystallised by this time. The period of suspension could fetch 50% of the salary as subsistence allowance for first six months thereafter 75% of the salary beyond the same. Ultimately nothing has been done by the department so his claim for back wages had been crystallised by this time. At present after a long time there was no chance or possibility to initiate any disciplinary proceeding in terms of the order passed by this Court by the learned single Judge. Meanwhile he had also retired. Hence, he is entitled having regard to average of the rate of subsistence allowance, to back wages of 60% of his salary provided he swears an affidavit as indicated above. (18) ON receipt of such affidavit the appropriate authority will be at liberty to verity and scrutinize such statement and averment and this must be completed within one month and after expiry of that period, if nothing has been done then his statement and averment in the affidavit must be deemed to have been accepted and in that case his back wages of 60% shall be released immediately after expiry of one month. However, on enquiry if it is detected the statement made by him in such affidavit as false, then no back wages shall be given in terms of this order. Thus, the order of the appropriate officer refusing to pay any back wages and that of the Tribunal is modified substantially to the extent as above. There will be no order as to costs.