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2012 DIGILAW 1739 (PNJ)

Vijay Parkash Bhardwaj v. HUDA

2012-12-04

RAKESH KUMAR GARG

body2012
Rakesh Kumar Garg, J.— 1. The petitioner joined the service of the respondents on 10.9.1971. He was compulsorily retired vide order dated 30.1.2008. Petitioner challenged the said order before this Court by filing CWP No. 2175 of 2008, which was allowed vide judgment dated 28.4.2008 and the order dated 30.1.2008 compulsorily retiring the petitioner, was quashed. Petitioner submitted his joining report on 2.5.2008. However, he was not allowed to join and was informed that the respondents have chosen to challenge the aforesaid judgment dated 28.4.2008 passed in CWP no. 2175 of 2008. 2. It is a matter of record that the respondents filed Petition for Special Leave to Appeal (Civil) No. 12586 of 2008 before the Hon’ble Supreme Court, wherein the operation of the judgment dated 28.4.2008 was stayed vide order dated 15.5.2008. However, the aforesaid Special Leave to Appeal filed by the respondents was dismissed by the Hon’ble Supreme Court vide judgment dated 20.4.2011. The aforesaid order reads thus:- “This Court has heard the learned counsel for the parties. The charge-sheets which have been relied upon by the petitioners for passing the impugned order of the compulsory retirement do not cast aspersions on the integrity of the respondent in terms of the Government instructions circulated vide letter dated 12.12.1988. Therefore, the High Court was justified in quashing the impugned order of compulsory retirement dated January 30, 2008. There is also nothing adverse against the respondent in his annual confidential reports. This Court does not find any case to interfere with the impugned judgment. Therefore, the special leave petition stands dismissed. ” 3. After dismissal of the appeal of the respondents by the Hon’ble Apex Court, the respondents passed an office order dated 23.11.2011 (Annexure P-4), granting notional increments etc. to the petitioner. However, it was ordered that no salary will be admissible to the petitioner w. e. f. 30.1.2008 to 31.5.2010 on the ground that he had not actually worked during this period. 4. It may also be noticed that in the meantime, petitioner had attained the age of suppuration on 31.5.2010. However, it is not in dispute that the petitioner has been given all the benefits except the salary for the period as aforesaid. 5. By filing this writ petition, the petitioner has challenged the order dated 23.11.2011 (Annexure P-4) to the extent of denying him the salary w. e. f. 30.1.2008 to 31.5.2010. 6. However, it is not in dispute that the petitioner has been given all the benefits except the salary for the period as aforesaid. 5. By filing this writ petition, the petitioner has challenged the order dated 23.11.2011 (Annexure P-4) to the extent of denying him the salary w. e. f. 30.1.2008 to 31.5.2010. 6. The writ petition has been contested by the respondents on the ground that the petitioner is not entitled to salary for the intervening period w. e. f. 30.1.2008 to 31.5.2010 on the principle of ‘No Work No Pay’. 7. I have heard learned counsel for the parties and perused the averments made in the writ petition, written statement as well as documents placed on record. 8. Learned counsel for the respondents has relied upon the judgments of the Hon’ble Supreme Court in the cases of APSRTC v. B. S. David Paul 2006(2) SCC 283 and Rajasthan S. R. T. C. v. Shyam Bihari Lal Gupta 2005(7) SCC 406 to contend that where termination of service of an employee has been set aside by an order, which is silent with regard to consequential benefits, the employer was justified in withholding the salary for such a period. According to learned counsel for the respondents, the Division Bench judgment of this Court in CWP No. 2175 of 2008 decided on 28.4.2008 is silent with regard to consequential benefits, though the order in question, retiring the petitioner compulsorily, was set aside and thus, according to him, no salary is payable to the petitioner during the aforesaid period. 9. The argument raised on behalf of counsel for the respondents is misconceived and cannot be accepted. It is well settled that once relief to set aside or quash the order of termination, is granted or declaratory decree is passed to the similar effect, it necessarily follows that the employee in the eyes of law continues to be in service and as a necessary consequence thereof would be entitled to all the emoluments flowing from that status. He must be deemed to be in a position identical to that existing prior to the passing of the order of termination. To support the aforesaid observations, reliance can be placed upon a Full Bench judgment of this Court in the case of Radha Ram v. M. C. Barnala & anr. 1983 PLR (Vol. LXXXV) 20. 10. He must be deemed to be in a position identical to that existing prior to the passing of the order of termination. To support the aforesaid observations, reliance can be placed upon a Full Bench judgment of this Court in the case of Radha Ram v. M. C. Barnala & anr. 1983 PLR (Vol. LXXXV) 20. 10. At this stage, the judgment of the Hon’ble Supreme Court dated 5.7.2012 passed in Civil Appeal No. 4985 of 2012 Ram Kishan v. DHBVNL & ors. may also be noticed, where in similar circumstances, similar plea on behalf of the employer was not accepted and the Hon’ble Apex Court came to the conclusion that the services of the employee were wrongly terminated by the employer and thus, the High Court had erred in law in not allowing the employee the payment of backwages for the period during which he was prevented from working. 11. At this stage, it may also be noticed that after quashing of the order dated 30.1.2008, the petitioner had represented to the respondents for allowing him to join his services, but the respondents have not allowed him to join and thus, no fault can be attributed to the petitioner to attract the provisions of ‘No Work No Pay’. 11. In this view of the matter, this writ petition is allowed and the order (Annexure P-4) to the extent of denying the petitioner his salary w. e. f. 30.1.2008 to 31.5.2010 is quashed. Resultantly, the respondents are directed to pay the salary to the petitioner for the aforesaid period along with interest @ 6% per annum, within one month from the date of receipt of a certified copy of this order.