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2009 DIGILAW 1439 (JHR)

Union of India v. Binoda Nand Jha

2009-11-16

D.K.SINHA

body2009
JUDGMENT This appeal has been filed by the Union of India along with an application for condonation of delay in filing the appeal which is time barred by 178 days. The delay has been explained by adopting one of those hackneyed reasons to the effect that the file travelled from one department to the other on account of procedural hassle which hardly inspires confidence in the reason assigned. On the contrary, counsel for the respondent petitioner submitted that the delay caused by the appellants is not bonafide as the appellants did not care to file the appeal in time and acquiesced with the judgment and order passed by the learned Single Judge and only when the respondent filed a petition for contempt alleging non implemention of the order passed by the learned Single Judge, the appellant preferred an appeal before this Court with a delay of 178 days. He has, therefore, submitted that the delay is not bonafide but is intentional and hence not fit to be condoned. However, in spite of the huge delay, we permitted the counsel for the appellants to address us on the merit of the matter and on hearing him, we could notice that the learned Single Judge, vide impugned order, has been pleased to allow the writ petition directing the respondents/appellants herein to pay the arrears of salary from 05.02.2000 to 05.11.2002 during which the respondent/petitioner was suffering the order of dismissal. However, the order of dismissal was finally set aside by the Single Bench of this Court and the respondent although was reinstated in service an order was passed against him to the effect that since his order of dismissal was set aside on technical ground, the arrears of salary for the intervening period during which he was out of service, would not be paid to him. The respondent/petitioner, therefore, filed another writ petition bearing W.P(S) NO.1868/2003 out of which this appeal arises wherein he had sought a direction to the respondents/appellants herein to pay him the arrears of salary. The writ petition was allowed by the learned Single Judge which is now under challenge in this appeal. Learned counsel for the appellant Union of India submitted that the arrears of salary is not fit to be paid to the respondent as he cannot be allowed to claim wages for the period during which he had not discharged duty. The writ petition was allowed by the learned Single Judge which is now under challenge in this appeal. Learned counsel for the appellant Union of India submitted that the arrears of salary is not fit to be paid to the respondent as he cannot be allowed to claim wages for the period during which he had not discharged duty. It is no doubt true that the arrears of salary in all cases where the order of dismissal/termination is set aside may not be payable as there are several authorities on this question indicating that the arrears of salary is not fit to be paid under all circumstances. In the light of this position, we tested the case of the respondent and questioned the counsel for the respondent as to why the arrears of salary should be paid to the respondent. This query was answered by the counsel for the respondent who submitted that the charge levelled against the respondent that he used abusive language against his superior, was not held to have been proved due to which a punishment of reduction in rank by one grade only was initially imposed against the delinquent respondent. The respondent, therefore, preferred an appeal before the appellate authority and the appellate authority instead of adjudicating whether the punishment of reduction in rank by one grade could be sustained or not, enhanced the punishment by dismissing him from service. Thus, it was submitted that the action of the appellate authority on the contrary was clearly malicious as at the stage of appeal, the punishment of reduction in rank could not have been enhanced by substituting it with punishment of dismissal. The order of dismissal, however, was finally set aside by the High Court vide CWJC NO.2751/2000. In spite of the aforesaid order, the adamant attitude of the appellant State was clearly reflected as the authorities passed a fresh order denying him the salary for the period he was out of service clearly ignoring the fact that the delay in disposal of the matter would be clearly attributed to the appellant as it is the appellate authority who acted in a high handed manner by substituting the order of reduction into an order of dismissal ignoring that the appellate authority without any appeal by the department could not have enhanced the punishment of a greater magnitude. Thus, the matter got delayed and the respondent was compelled to remain out of job on account of this reason. Besides this, we have noticed that the appellate authority also did not care to implement the order passed by the learned Single Judge and was not serious in prosecuting the matter as the appellant Union of India did not care to file appeal within the presceibed period of limitation. It is only when the respondent filed a petition for contempt, the appellant Union of India thought it appropriate to proceed with the matter by filing an appeal. All these circumstances indicate that it is the appellant which had delayed the process of reinstatement of the respondent and thus, it would be justified for the respondent to claim wages for the period of two years and ten months in which he, under compulsion, could not discharge duties due to the delay which was caused by the appellant which is reflected from the facts indicated hereinbefore. Under the circumstance, we consider it just and appropriate to uphold the order passed by the learned Single Judge and hence, this appeal is dismissed on merit as also on account of delay and laches at the stage of admission itself.