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2015 DIGILAW 1581 (RAJ)

Arun Prakash Sahal v. State of Rajasthan

2015-08-25

SANDEEP MEHTA

body2015
JUDGMENT : Hon'ble MEHTA, J.—Heard learned counsel for the parties. 2. By way of the instant writ petition, the petitioner has approached this Court praying for the following relief:- “It is, therefore, most respectfully prayed that this writ petition may kindly be allowed and the respondent department may kindly be ordered to be issued the service arrears of the petitioner from the year 1999 (31.1.1999) to 2005 (1.12.2005) with all consequential benefits.” 3. Succinctly stated the facts relevant and germane for the disposal of the instant writ petition are that at the relevant point of time, the petitioner was serving as a Sub-Divisional Soil Conservation Officer with the respondents. A charge-sheet under Rule 16 of the CCA Rules, 1958 was served to the petitioner in the year 1995 for the allegations of misconduct relating to the year 1982-83. The petitioner contested the belated charge-sheet. However, the inquiry culminated against the petitioner. The disciplinary authority imposed upon the petitioner a punishment of compulsory retirement vide order dated 16.1.1999. 4. The petitioner challenged the order dated 16.1.1999, whereby he was compulsory retired, by preferring a writ petition being S.B. Civil Writ Petition No.959/2000 before this Court. The writ petition was accepted by order dated 27.7.2005 and the charge-sheet as well as the order inflicting the penalty of compulsory retirement were quashed and the petitioner was held entitled to all consequential benefits. The order was not challenged by the respondent State and thus, attained finality. Consequently, an order Annex.2 dated 31.10.2005 came to be passed whereby, the order of compulsory retirement was revoked and the petitioner was reinstated in service. By order Annex.3 dated 3.12.2005, the petitioner was posted under the Water Resources Development Department, Government of Rajasthan. An order Annex.5 dated 4.1.2008 came to be issued proposing the petitioner’s superannuation from service w.e.f. 30.4.2008 and the petitioner was retired from service on that date. The petitioner submitted a representation to the authorities concerned with the grievance that he had not received the salary for the period between 31.1.1999 to 1.12.2005. The representation was not responded to upon which reminders were submitted. However, the authorities failed to respond to the petitioner’s request for payment of the monetary benefits upon which, he has approached this Court by way of the instant writ petition. 5. The representation was not responded to upon which reminders were submitted. However, the authorities failed to respond to the petitioner’s request for payment of the monetary benefits upon which, he has approached this Court by way of the instant writ petition. 5. The respondents have filed a reply to the writ petition wherein a plea is taken that the writ petition is misconceived in as much as, the petitioner was not entitled to actual consequential benefits but instead was entitled to only notional benefits which were extended to him after seeking legal opinion. 6. Heard and considered the arguments advanced and perused the material available on record. 7. It is undisputed that the charge-sheet served to the petitioner and the consequent order of compulsory retirement were declared illegal and set aside by this Court while allowing the petitioner’s writ petition no.959/2000 by order dated 27.7.2005. The operative portion of the order dated 27.7.2005 is very relevant for deciding the controversy at hand and is reproduced herein below for the sake of ready reference:- “For the reasons mentioned above the petition for writ deserves acceptance. I do not find any reason sufficient to subject the petitioner by disciplinary proceedings in the year 1995 under the memorandum dated 15.4.1995 pertaining to the charges of misconduct for the year 1982-83. Accordingly, the charge-sheet dated 15.4.1995 is hereby quashed. Consequently, the order passed by the disciplinary authority also stands quashed. Same is also quashed being a non speaking and unreasoned order. The petitioner is entitled for all consequential benefits. In the terms above the petition for writ is allowed.” Thus, this Court unequivocally directed that pursuant to the quashing of the order imposing penalty of compulsory retirement, the petitioner would be entitled to all consequential benefits. In view of the unambiguous language of the order, there is not even an iota of doubt that the petitioner was entitled to all actual benefits including reinstatement, continuity and actual monetary benefits. The order was not open to any restrictive interpretation. The decision taken by the authorities that the petitioner was only entitled to notional benefits has no basis whatsoever. Consequential benefits ordered in favour of the petitioner had to be applied actually and could not be restricted or curtailed in any manner. A conscious decision was taken by the authorities not to challenge the order dated 27.7.2005 in appeal. The decision taken by the authorities that the petitioner was only entitled to notional benefits has no basis whatsoever. Consequential benefits ordered in favour of the petitioner had to be applied actually and could not be restricted or curtailed in any manner. A conscious decision was taken by the authorities not to challenge the order dated 27.7.2005 in appeal. Thus, the order attained finality and has to be carried out in its letter and spirit. 8. In this background, this Court is of the firm opinion that the stand taken by the respondents that the petitioner was entitled only to notional benefits pursuant to his reinstatement upon the charge-sheet and the order of compulsory retirement being quashed by this Court, is totally illegal. 9. The term ‘consequential benefits’ has been interpreted by the Courts time and again. In a recent Division Bench judgment rendered by the Madhya Pradesh High Court in the case of Mahesh Prasad Dwivedi. vs. District Cooperative Central Bank Ltd. reported in MANU/MP/1034/2013, it was held that if the order of compulsory retirement is found to be illegal and unsustainable, the employee is entitled to the consequential benefits of reinstatement with full back wages. Withholding of back wages or denying full back wages can be ordered only if the employee is found to be in gainful employment. 10. The authorities, whilst reinstating the petitioner in service consequent to the order dated 27.7.2005, did not pass any formal order withholding the actual benefits and giving him only notional benefits. If at all, the authorities intended to withhold the actual benefits of the petitioner (which in this Court’s opinion was impermissible in view of the aforequoted portion of the order dated 27.7.2005), then they were required to make an inquiry and record a finding to the effect that for the period for which the petitioner was illegally kept out of service, he was gainfully employed. It is undisputed case of the parties that no formal order denying the actual benefits to the petitioner was ever passed. In this view of the matter, this Court is of the firm opinion that the petitioner is entitled to the relief claimed for in the writ petition. 11. In the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Ors. reported in AIR 2014 SC (Suppl.) 121, the Hon’ble Supreme Court observed as below :- “16. In this view of the matter, this Court is of the firm opinion that the petitioner is entitled to the relief claimed for in the writ petition. 11. In the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Ors. reported in AIR 2014 SC (Suppl.) 121, the Hon’ble Supreme Court observed as below :- “16. The word "reinstatement" has not been defined in the Act and the Rules. As per Shorter Oxford English Dictionary, Vol.II, 3rd Edition, the word "reinstate" means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word "reinstatement" means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edition, the word "reinstate" means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word "reinstatement" means establishing in former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam Webster Dictionary, the word "reinstate" means to place again (as in possession or in a former position), to restore to a previous effective state. As per Black's Law Dictionary, 6th Edition, "reinstatement" means 'to reinstall, to reestablish, to place again in a former state, condition, or office? To restore to a state or position from which the object or person had been removed.' 17. 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 concerned employee, 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. Not only the concerned employee, 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. 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. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” Thus, in the case at hand also, the petitioner who was deprived of his salary on account of the illegal action of the respondents in inflicting upon him a punishment of premature compulsory retirement, is definitely entitled to full back wages, particularly, because this Court while allowing the writ petition against the order of compulsory retirement has specifically ordered that the petitioner shall be entitled to all consequential benefits. 12. As a result of the aforesaid discussion, the instant writ petition deserves to be and is hereby allowed. The respondents are directed to extend actual service benefits including salary and all other admissible emoluments to the petitioner for the period during which he was kept out of service under the effect of the illegal order of compulsory retirement. The necessary revisions shall also be effected in the petitioner’s service benefits. However, the amount of pension which was paid to the petitioner during this period shall be deducted while calculating the dues. The accrued amount shall carry interest @ 6% per annum from the date of accrual till actual payment. The necessary revisions shall also be effected in the petitioner’s service benefits. However, the amount of pension which was paid to the petitioner during this period shall be deducted while calculating the dues. The accrued amount shall carry interest @ 6% per annum from the date of accrual till actual payment. The dues shall be paid within a period of 3 months failing which the interest shall stand enhanced to 9% per annum. 13. No order as to costs.