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2012 DIGILAW 329 (UTT)

ANITA NAINWAL v. DISTRICT JUDGE, PAURI GARHWAL

2012-06-27

B.S.VERMA

body2012
JUDGMENT Hon’ble B.S.Verma, J. By means of this writ petition, the petitioners have sought the following relief:- A. Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 7-4-2011 passed by the District Judge, Pauri Garhwal (copy Annexure-5 to the petition). B. Issue a writ, order or direction in the nature of mandamus commanding the respondent to release the entire back wages in favour of the petitioner from the date of her termination till the date of her reinstatement with penal rate of interest. C. Issue any suitable writ, order or direction, which this Hon’ble Court may deem fit and proper on the basis of the facts and circumstances of the case. D. Award the cost of the petition to the petitioner. 2. The admitted facts of the case are that the husband of the petitioner was working as an Upper Division Clerk in Pauri Garhwal Judgeship, who died in harness on 6-7-2006. Thereafter, the petitioner was appointed in the establishment of the District Judge, Pauri Garhwal, on compassionate ground under the Dying-In-Harness Rules and an appointment letter dated 10th August 2006 was issued by the District Judge appointing the petitioner to the post of Lower Division Clerk. Subsequently, by an order dated 14.9.2006 the services of the petitioner were terminated by the District Judge, which gave rise to Writ Petition No. 1553 of 2006 (S/S), Smt. Anita Nainwal Vs. District Judge, Pauri Garhwal. Learned Single Judge of this Court by order dated 28-6-2010, set aside the order of termination passed against the petitioner and directed her reinstatement in service but without benefit of back wages. 3. Aggrieved by the part of the order, whereby back wages were refused, the petitioner preferred Special Appeal before the Division Bench of this Court. The Division Bench by order dated 26-11-2010 passed in Special Appeal No. 147 of 2010, set aside that part of the judgment and order under special appeal whereby entitlement of back wages to the petitioner was declined from the date of termination till the date of her reinstatement. The Division Bench further directed the appointing authority to ascertain whether the appellant was entitled to such back wages or not. 4. In compliance of the order passed by the Division Bench, the District Judge Pauri Garhwal relied upon the Apex Court judgment passed in Civil Appeal No. 1138 of 2010 Inderjit Singh Vs. The Division Bench further directed the appointing authority to ascertain whether the appellant was entitled to such back wages or not. 4. In compliance of the order passed by the Division Bench, the District Judge Pauri Garhwal relied upon the Apex Court judgment passed in Civil Appeal No. 1138 of 2010 Inderjit Singh Vs. State of Punjab through Collector and another decided on 29-1-2010 and by his order dated 7.4.2011 did not find favour with the petitioner on the issue of grant of back wages and dismissed the application of the petitioner. The said order dated 7.4.2011is impugned in the present writ petition. 5. The main grounds of challenge raised in the present writ petition are that the petitioner remained unemployed during the period she remained ousted from employment and that there was fault on the part of the employer and not the employee in the case at hand and that the principle of “no work no pay” does not apply to the facts of the present case. 6. On behalf of the respondent, counter affidavit has been filed and therein it has been specifically stated that the back wages were declined in view of the Apex Court verdict in the case of Interjit Singh (supra) and that the principle of no work no pay was applicable to the case at hand. 7. On behalf of the petitioner, rejoinder affidavit has been filed wherein the averments made in the writ petition have been reiterated. 8. I have heard learned counsel for the parties and perused the entire material placed before this Court. 9. Learned counsel for the petitioner has contended that since order terminating the services of the petitioner has been set aside by this Court and as the termination of the petitioner was found to be illegal, the consequential order of grant of back wages must follow, unless there are reasons justifying a departure from normal order. Learned counsel for the petitioner has relied upon the case of Manorma Verma (Smt) Vs. State of Bihar and others [1994 Supp(3) Supreme Court Cases, 671]. In that case, it has been held by the Apex Court that since the appellant was not gainfully employed elsewhere during the period of termination, he was entitled to back wages from the date of termination till reinstatement. The ratio of the judgment cannot be disputed. 10. State of Bihar and others [1994 Supp(3) Supreme Court Cases, 671]. In that case, it has been held by the Apex Court that since the appellant was not gainfully employed elsewhere during the period of termination, he was entitled to back wages from the date of termination till reinstatement. The ratio of the judgment cannot be disputed. 10. The learned counsel for the petitioner has further relied upon the judgment of the Apex Court in the case of Union of India Vs. Madhusudan Prasad [(2004) 1 Supreme Court Case, 43]. In that case, the respondent employee was dismissed from service because after the expiry of his leave he failed to report back on duty, without any information. He was not served with any show-cause notice nor any enquiry preceded his dismissal. Hence the appellate authority set aside the order of dismissal and directed reinstatement but back wages were declined. The respondent-employee filed writ petition, which was allowed by the High Court. The order was confirmed by the Division Bench in appeal. The employer approached the Apex Court. The Apex Court has occasion to consider the provision of Fundamental Rule 54 in the appeal and, ultimately, the Apex Court dismissed the appeal holding that in that case the respondent was removed from service without any enquiry and that he was not even given a show cause notice prior to his dismissal from service. The Apex Court has also observed that unless there are reasons on record to come to the conclusion that the appellant was not entitled to back wages, back wages should not have been refused. The facts of the case at hand are quite distinguishable, therefore, the case-law does not apply to the facts of the present case. 11. It is pertinent to mention here that the petitioner in the first round of litigation had challenged the order of termination of her services in Writ Petition No. 1553 of 2006(S/S) and this Court by order dated 28.6.2010 allowed the writ petition and directed reinstatement of the petitioner but without back wages. Aggrieved by the part of order whereby back wages have been denied to the petitioner, the petitioner filed Special Appeal No. 147 of 2010, Smt. Anita Nainwal Vs. District Judge, Pauri Garwal before Division Bench of this Court. Aggrieved by the part of order whereby back wages have been denied to the petitioner, the petitioner filed Special Appeal No. 147 of 2010, Smt. Anita Nainwal Vs. District Judge, Pauri Garwal before Division Bench of this Court. The Division Bench by judgment and order dated 26-11-2010 in paragraph no.3 of the judgment has inter alia observed as under:- “The appellant has stated in the memorandum of appeal, which statement was not made by her in the writ petition, that after her services were terminated, she was not gainfully engaged anywhere. We think that this aspect of the matter should have been left with the appointing authority for determination.” 12. The appeal was ultimately allowed and it was directed that the appointing authority to ascertain whether the appellant is entitled to such back wages or not. 13. I have pondered over the matter. 14. After the order dated 26-11-2010 passed by the Division Bench was communicated, the District Judge Pauri Garhwal by his order dated 7-4-2011 has held that the petitioner was not entitled to get back wages. The District Judge has relied upon the case of Inderjit Singh (supra) while denying the back wages to the petitioner. A perusal of the impugned order passed by the learned District Judge Pauri Garhwal goes to show the direction as contained in paragraph no.3 of the order passed by the Division Bench of this Court has not been taken into consideration whether the petitioner was gainfully engaged anywhere during the period she was ousted from her employment till the date of her reinstatement. 15. It also finds place to mention here that the learned District Judge in paragraph no.6 of the impugned order has observed that the services of the petitioner were purely temporary and liable to be dismissed without prior notice. This observation of the learned District Judge is without any legs and unwarranted. Undisputedly, the petitioner had been appointed on compassionate grounds under the Dying-In-Harness Rules and such appointment is substantive in nature. It has been specifically held by the learned Single Judge of this Court in the order dated 28.6.2010 that “since the appointment was substantive in nature, no order could have been issued terminating the services of the petitioner without issuing a show cause notice and without calling for a reply.” 16. Besides above, in the case of Inderjit Singh Vs. It has been specifically held by the learned Single Judge of this Court in the order dated 28.6.2010 that “since the appointment was substantive in nature, no order could have been issued terminating the services of the petitioner without issuing a show cause notice and without calling for a reply.” 16. Besides above, in the case of Inderjit Singh Vs. State of Punjab through Collector and another (supra), an inquiry was conducted and the appellant before the Apex Court along with one other person was found guilty in the inquiry. The appeal of that person had already been allowed by the Apex Court by earlier order dated 4th February 2002. In the case at hand, the facts are quite distinct and no inquiry was conducted against the petitioner. Moreover, the order of termination of services of the petitioner has already been quashed by order dated 28-6-2010 passed by the learned Single Judge of this Court, therefore, in my view, the case-law of Inderjit Singh (supra) has been wrongly applied by the learned District Judge, especially when there is no discussion at all on the point of gainful engagement of the petitioner during the period she remained out of employment till her reinstatement in service, as directed by the Division Bench of this Court. 17. In view of the discussion made above, I am of the considered view that the learned District Judge has failed to take into consideration the direction recorded in paragraph no.3 of the judgment passed by the Division Bench of this Court while denying the back wages to the petitioner, therefore, this writ petition deserves to be allowed and the impugned order is liable to be set aside. 18. The writ petition is allowed with no order as to costs. The impugned order is set aside. The matter is remanded to the learned District Judge for a decision afresh in the light of the directions given by the Division Bench of this Court vide order dated 26-11-2010, as discussed in the body of judgment. The learned District Judge shall conclude the matter expeditiously, preferably within a period of three months.