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2014 DIGILAW 305 (PAT)

Tuntun Kumar Roy v. Union of India

2014-03-03

CHAKRADHARI SHARAN SINGH

body2014
ORDER Heard Mr. Prashant Pratap, learned counsel for the petitioner and learned Assistant Solicitor General appearing on behalf of the Union of India. 2. The petitioner in the present writ application seeks a direction to the Respondents for payment of full salary with all consequential benefits for the period 26.10.1999 to 12.10.2010 during which the petitioner remained out of service because of an order dated 26.10.1999 passed by the disciplinary authority, which came to be quashed by an order of this Court dated 13.12.2002 passed in C.W.J.C. No. 6330 of 2001, subsequently, affirmed by an order dated 22.04.2010 passed in L.P.A. No. 234 of 2003 by a Division Bench of this Court. 3. Facts are not at all in dispute. The petitioner is a Constable in Central Reserve Police Force. A disciplinary proceeding was initiated on the charge of his unauthorized absence from service. In the departmental proceeding, the petitioner was held guilty of the charge framed against him and the punishment petitioner’s removal from service was imposed upon him. His service, for the period during which he had absented him unauthorizedly, was however regularized as “leave without pay”. 4. The order dated 26.10.1999, by which the petitioner was removed from service also contemplated forfeiture of all medals and decorations given / conferred upon the petitioner. It was indicated in the said order of removal that the petitioner?s absence from 01.01.1999 to 05.02.1999 (36 days) and 10.03.1999 to 21.04.1999 (43 days) would be regularized as ‘leave without pay’. 5. This Court while quashing the said order dated 26.10.1999, only to the extent it related to the petitioner’s removal from service made the following observations:— “From the order impugned as contained in Annexure-1 and also the appellate order as contained in Annexure-3, it would appear that there were only two charges against the petitioner for his long absence for 36 days and again for 43 days and besides that, no charges were framed against him. For the charge of absence, his unauthorized leave was regularised by the order impugned but at the same time, he has also been dismissed from services. In absence of any charge of misconduct, the order of dismissal is not sustainable. From the pleadings of the parties, it appears that besides these charges of absence, there was no charge of misconduct and misdemeanor against the petitioner warranting his dismissal. In absence of any charge of misconduct, the order of dismissal is not sustainable. From the pleadings of the parties, it appears that besides these charges of absence, there was no charge of misconduct and misdemeanor against the petitioner warranting his dismissal. In that view of the matter, that part of the order impugned whereby and whereunder the petitioner has been dismissed from services is unsustainable.” 6. Division Bench of this Court dismissing the Letters Patent Appeal preferred by Union of India made the following observations:— “The order under appeal holds that once the authorities after departmental proceedings decided to regularize the period of unauthorized leave with half salary, the misconduct alleged of absence no more survives. That was the only charge. Once the period of unauthorized absence was regularized by the respondent themselves no misconduct of unauthorized absence survives. We see no any reason to arrive at any different conclusion than the impugned order and nothing has been urged before us to persuade the holding of another view.” 7. The effect of the order passed by this Court in C.W.J.C. No. 6330 of 2001 dated 03.12.2002 and Division Bench order dated 22.04.2010 passed in L.P.A. No. 234 of 2003 is that this Court found the charge against the petitioner not to be constituting a misconduct. 8. The order of the Division Bench has attained finality and in view of the orders of this Court as indicated above, it has to be accepted that this Court did not find the charge framed against the petitioner constituting a misconduct. 9. The other set of facts are that immediately after the order of removal was set aside by this Court vide order dated 03.12.2002 passed in C.W.J.C. No. 6330 of 2001 and whereby the petitioner was directed to be reinstated in service, he submitted his representation dated 28.12.2002 before the Inspector General of Police, Central Reserve Police Force, Lucknow which is Annexure-4 to the present writ application. There is no denial of the fact that the petitioner has submitted in his representation dated 28.12.2002 making a request to the competent authority to allow him to join in view of the quashing of the order of removal from service passed by this Court. This is also not in dispute that the petitioner was not allowed to join. There is no denial of the fact that the petitioner has submitted in his representation dated 28.12.2002 making a request to the competent authority to allow him to join in view of the quashing of the order of removal from service passed by this Court. This is also not in dispute that the petitioner was not allowed to join. The respondent opted to prefer an appeal under the Letter Patent of this Court vide L.P.A. No. 234 of 2003. This is also not in dispute that the petitioner was subsequently also not allowed to join on the ground of the pendency of the L.P.A. No. 234 of 2003. After nearly five months after disposal of the said Letters Patent Appeal filed by the Respondent Union of India, an order dated 22.09.2010 was passed by the Commandant, 92 Bn., C.R.P.F., reinstating the petitioner in service. This is also not in dispute that after the petitioner joined his service after his reinstatement in compliance of the order dated 22.09.2010, he made representation to the authorities requesting them to pay his back wages. On his representation, an order dated 04.07.2011 came to be passed by the Commandant 92 Bn. C.R.P.F. (Respondent No. 5) whereby the petitioner’s claim for back wages during the period he remained out of service has been refused on the principles of “No Work No Pay”. This order dated 04.07.2011 is under challenge in the present writ application and a direction for payment of back wages for the period in question has been sought. 10. Learned counsel for the petitioner contends that the ground for refusal of back wages as contained in the impugned order is unsustainable in the facts and circumstances of the case and the principle of ‘No Work No Pay’ has been wrongly applied in the present case. He contends that though the petitioner was willing to discharge his duties immediately after the order of removal from service passed against him was set aside by this Court vide an order dated 03.12.2002. 11. According to him, the authorities prevented him from discharging the duties for the period in question and he is not responsible for his absence from service during this period. 11. According to him, the authorities prevented him from discharging the duties for the period in question and he is not responsible for his absence from service during this period. He further submits that this Court in its orders dated 03.12.2002 and 22.04.2010 (Division Bench) held the charge against the petitioner constituting no misconduct and, therefore, the petitioner could not have been denied his back wages. He has placed reliance upon recent judgment of Supreme Court reported in (2013) 10 SCC 324 (Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya, D.ED. and Ors.), in support of his submission. He has also relied upon the Supreme Court judgment reported in A.I.R. 1962 SC 1334 (Devendra Pratap Narain Rai Sharma Vs. State of U.P.) in support of his case. 12. Mr. N.A. Shamsi, learned Assistant Solicitor General appearing on behalf of the Respondents on the other hand has vehemently opposed the prayer relying upon Supreme Court judgment in case of Novaritis India Limited Vs. State of West Bengal reported in (2009) 3 SCC 124 , and contends that in view of the admitted fact that the petitioner did not discharge his duties during the period in question, he would not be entitled to the back wages. He has reiterated that the petitioner’s act of unauthorized absence constituted a misconduct and he is not entitled for back wages as claimed in the writ application. 13. Before I deal with the rival submissions made on behalf of the parties, I must take note of specific assertion made in paragraph 31 of writ application that petitioner, during the period he remained out of service was not gainfully employed elsewhere. This assertion has not been denied in the counter affidavit. 14. Following facts emerge on the basis of discussion above. The petitioner was willing to join after order of removal from service was quashed by this Court vide order dated 03.12.20002. Respondents did not allow him to join, filed Letter Patent Appeal and compelled the petitioner to wait till final disposal of appeal. Even after disposal of the said appeal, the petitioner was made to wait for five months before he was allowed to join his post on 22.09.2010. It is apparent thus that Respondents, in the present, did not allow the petitioner to discharge his duties, though he was willing to. Even after disposal of the said appeal, the petitioner was made to wait for five months before he was allowed to join his post on 22.09.2010. It is apparent thus that Respondents, in the present, did not allow the petitioner to discharge his duties, though he was willing to. In any event, in my view, the Respondents could not deny the petitioner of the back wages for the period beginning from the date when he expressed his willingness to join pursuant to the order of this Court dated 03.12.2002 by way of filing his representation dated 28.12.2002. 15. Learned counsel for the petitioner is right in his submission placing reliance upon the Supreme Court judgment reported in (2013) 10 SCC 324 (Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya, D.ED. and Ors.) wherein there Lordships’ held in paragraph 22 as follows:— “22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” 16. In paragraph 38.1 of the said judgment, while summarizing the circumstances in which the payments of back wages can be ordered or denied, the Apex Court held that in case of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 17. By virtue of the order of this Court dated 03.12.2002, the petitioner was required to be reinstated in service forthwith. The Respondents did not, however, pass any order of reinstatement and such order of reinstatement was passed only on 22.09.2010. The petitioner was, therefore, kept out of service; from the date of passing of the order of this Court in C.W.J.C. No. 6330 of 2001 dated 03.12.2002 till he was allowed to join after issuance of the order dated 22.09.2010 reinstating the petitioner in service; illegally and the petitioner would be entitled to back wages for the said period. 18. In the present facts and circumstances of the case, as discussed above I direct the Respondents to calculate the petitioners back wages with all consequential benefits from 28.12.2002, which is date of his representation making a request for accepting his joining after the order of removal was set aside by this Court till 12.10.2010 up to which the petitioner was compelled to remain out of service illegally and pay him all such back wages within a period of six months from the date of receipt / production of a copy of this order. 19. This application is accordingly allowed. ?