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2018 DIGILAW 75 (ALL)

YADUNANDAN SINGH v. STATE OF U. P.

2018-01-09

YASHWANT VARMA

body2018
JUDGMENT Hon’ble Yashwant Varma, J.—Heard Shri V.S. Chauhan, learned counsel for the petitioner and Shri K.R. Singh, learned Additional Chief Standing Counsel for the respondents. 2. This petition calls in question an order dated 30 June 2008 passed by the Senior Superintendent of Police, Jhansi, the third respondent herein. In terms of the said order, the third respondent has proceeded to hold that the petitioner is not entitled to any wages for the period 27 February 1992 upto 5 February 1997. The sole ground on which the decision of the third respondent rests is his understanding that the petitioner would stand disentitled from payment of wages for this period on account of the applicability of the principles of ‘no work no pay’. 3. In order to appreciate the challenge laid to this order, it would be relevant to note the following facts. 4. The petitioner was initially dismissed from service on 27 February 1992. He assailed this order before the Tribunal which by its judgment dated 23 December 2016, allowed the claim and set aside the order of dismissal. While doing so, however, the Tribunal granted liberty to the respondents to proceed in the matter afresh and in light of the observations appearing in its judgment. It further clarified that the payment of wages for the period during which the order of dismissal operated would abide by the fresh decision which the respondents would take pursuant to the remit by the Tribunal. 5. It is not disputed that in terms of the liberty so granted, the proceedings were drawn by the respondents afresh. These proceedings ultimately culminated in a fresh order of punishment dated 20/22 July 1999 being passed, in terms of which the petitioner was awarded the punishment of reversion to the lowest pay-scale for three years. This order was again subjected to challenge by the petitioner before the Tribunal. The Tribunal while upholding the order of punishment noted that the Disciplinary Authority had not passed any order in respect of back wages from the date of dismissal till the date of reinstatement. In view thereof, while allowing the appeal, it commanded the Disciplinary Authority to take a fresh decision in this respect within a period of three months. The Tribunal while upholding the order of punishment noted that the Disciplinary Authority had not passed any order in respect of back wages from the date of dismissal till the date of reinstatement. In view thereof, while allowing the appeal, it commanded the Disciplinary Authority to take a fresh decision in this respect within a period of three months. This is evident from the operative directions of the judgment of the Tribunal dated 22 October 2007 which read thus : “In view of the aforementioned observations, the claim petition is allowed party. It is not required to interfere in the order dated 20/22.7.1999 (Annexure-1) but the punishing authority is directed to take decision about the admissibility of the consequential benefits of the petitioner in accordance with law. The punishing authority shall also pass an appropriate order regarding back wages from the date of dismissal of the petitioner from service till the date of reinstatement of the petitioner. This matter shall be decided within three months from the date of receipt of a certified copy of this judgment.” 6. It is pursuant to this direction that the impugned order has come to be passed. 7. While it is true that jurisdiction, authority and discretion does exist in a Disciplinary Authority to consider whether full emoluments are liable to be paid for the period during which an order of dismissal operated and ultimately comes to be set aside by a Court or Tribunal, the seminal issue for consideration is whether in such a situation the principles of ‘no work no pay’ can be imputed. 8. The fact that the Disciplinary Authority has the jurisdiction to consider this aspect stands duly enshrined in the relevant service rules. This position is not disputed by the parties before this Court. This leaves the Court to only consider whether the principles of ‘no work no pay’ can have any application. 9. The answer in the considered view of this Court must necessarily be in the negative and against the respondents. The principle of ‘no work no pay’ stands attracted in a situation where an employee has refused to discharge duties of his own volition and without any restraint of the employer. It primarily applies to a situation where the employee of his own volition fails to discharge duties. The principle of ‘no work no pay’ stands attracted in a situation where an employee has refused to discharge duties of his own volition and without any restraint of the employer. It primarily applies to a situation where the employee of his own volition fails to discharge duties. This principle by its very inherent character can have only a limited application, where an order of termination is permitted to operate. An order of termination results in severance of the master and servant relationship and till it continues to exist and operates, no right inheres in the officer or employee to compel the employer to permit him to discharge duties. Regard must also be had to the fact that the termination of employment is an act effected solely by the employer. This is therefore not a situation where the employee has failed to discharge duties without justifiable cause. It is only when the order of termination is set aside that the issue of discharge of duties by the officer or employee would arise. 10. In a short and succinct decision the Supreme Court in Shoba Ram Raturi v. Haryana Vidyut Prasaran Nigam Ltd and others, (2016) 16 SCC 683, has noticed this aspect in the following terms : “1. It is not a matter of dispute, that the appellant was retired from service on 31.12.2002, even though he would have, in the ordinary course, attained his date of retirement on superannuation, only on 31.12.2005. The appellant assailed the order of his retirement dated 31.12.2002 by filing writ petition No. 751 of 2003. The same was allowed by a learned Single Judge of the Punjab and Haryana High Court, on 14.9.2010. The operative part of the order is extracted here under: “Accordingly the present writ petition is allowed; order dated 31.12.2002 (Annexure P-4) is quashed. The petitioner would be treated to be in continuous service with all consequential benefits. However it is clarified that since the petitioner has not worked on the post maxim of “no work, no pay” shall apply and the consequential benefits shall only be determined towards terminal benefits. However there will be no order as to costs.” 2. The denial of back wages to the appellant by the High Court vide its order dated 14.9.2010 was assailed by the appellant by filing Letters Patent Appeal No. 489 of 2011. However there will be no order as to costs.” 2. The denial of back wages to the appellant by the High Court vide its order dated 14.9.2010 was assailed by the appellant by filing Letters Patent Appeal No. 489 of 2011. The High Court rejected the claim of the appellant, while dismissing the Letters Patent Appeal on 26.5.2011. The orders dated 14.9.2010 and 26.5.2011 passed by the High Court limited to the issue of payment of back wages, are subject-matter of challenge before this Court. 3. Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31.12.2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilized the services of the appellant for the period from 1.1.2003 to 31.12.2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1.1.2003 to 31.12.2005, the respondent cannot be allowed to press the self serving plea of denying him wages for the period in question, on the plea of the principle of “no work no pay”. 4. For the reasons recorded hereinabove, we are satisfied, that the impugned order passed by the High Court, to the limited extend of denying wages to the appellant, for the period from 1.1.2003 to 31.12.2005 deserves to be set aside. The same is accordingly hereby set aside. 5. The appellant shall be paid wages for the above period within three months from today. His retiral benefits, if necessary, shall be re-calculated on the basis thereof, and shall be released to him within a further period of three months. 6. The instant appeal is allowed in the above terms.” 11. The principle that needs recognition and reiteration is that the principle of no work no pay cannot have an ipso facto or automatic application to a case of termination. Once the order of termination comes to be set aside by a Court or Tribunal, it is incumbent upon the Disciplinary Authority to take an informed decision with respect to the manner in which the period during which the order of termination operated would be liable to be treated. Once the order of termination comes to be set aside by a Court or Tribunal, it is incumbent upon the Disciplinary Authority to take an informed decision with respect to the manner in which the period during which the order of termination operated would be liable to be treated. The decision to derive an employee of emoluments and other benefits cannot be arrived at solely on the application of the principle of “no work no pay”. While arriving at a decision in this respect, it would be incumbent upon the Disciplinary Authority to consider various factors such as the length of the period during which the order of termination operated, whether the enquiry proceedings were delayed on account of non cooperation of the employee concerned, the nature of the misconduct which is ultimately found to be proved, the severity of the punishment which comes to be imposed upon the original order of termination being modified. There would thus have to be a holistic and comprehensive consideration of the above and other germane factors which would guide the ultimate decision that the Disciplinary Authority takes in this regard. 12. The stand taken by the respondents, in the facts of the present case, is clearly indicative of a failure to appreciate this aspect of the matter. The non working of the petitioner during the period 27 February 1992 to 5 February 1997 was not a voluntary act on his part. There was no failure on his part to discharge duties. It is also not indicative of a situation where for unjustifiable reasons he has failed to discharge the functions attached to his post. It was the act of the respondent which clearly restrained and injuncted him from discharging his duties attached to the post. The respondents have also not accorded consideration to the factors noted above which should have guided the exercise of this power. For all the aforesaid reasons, this Court finds itself unable to sustain the order impugned. 13. The petition in consequence shall stand allowed. The order dated 30 June 2008 is hereby set aside. The third respondent shall now pass fresh orders in light of the observations appearing herein above.