Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 830 (JK)

Moti Lal v. UOI

2018-10-25

SANJEEV KUMAR

body2018
JUDGMENT : 1. The petitioner, who was recruited as Constable in the Central Industrial Security Force (CISF) on 30.12.1986, was boarded out from the service in terms of order dated 06.02.2002 and was accorded invalid pension vide order dated 06.06.2002 passed by the respondents. The orders of respondents dated 06.02.2002 and 06.06.2002 were assailed by the petitioner in SWP No.39/2003. The said writ pettion was dismissed by the Writ Court vide its order dated 26August, 2013. In an appeal i.e LPASW No. 168/2013 filed by the petitioner against the order of the Writ Court dated 26August, 2013, the same was set aside by the Division Bench of this Court vide its order dated 03.04.2014. Consequently, the orders impugned in the writ petition aforesaid dated 06.02.2002 and 06.06.2002 were also set aside. For facility of reference, the operative portion of the judgment of the Division Bench dated 03.04.2014 passed in LPASW No.168/2013 is reproduced hereunder: “For our afore-recorded reasons, we allow this appeal and set aside the judgment dated 26.08.2013 passed by the learned Writ Court. Consequently, orders dated 06.02.2002 and 06.06.2002 passed by the respondents are set aside. Writ petitioner-appellant shall stand reinstated into the service. Respondents are directed to adjust the appellant on a post in accordance with the mandate contained in Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)Act, 1995. The necessary orders in this regard shall be passed within a period two week’s from the date a copy of this order is served upon them”. 2. In compliance to the Judgment of the Division Bench (supra), the respondents vide order dated 29.04.2014 reinstated the petitioner in the service with immediate effect and directed him to report to CISF Unit, SHEP Salal. This was followed by another order issued by the respondents on 07th July, 2014 whereby the absence period of the petitioner from the date of invalid pension to the date of his reinstatement i.e from 06.06.2002 to 07.05.2014 was treated as in service with a stipulation that the actual wages for that period would not be given to the petitioner on the principle of “no work no pay”. The petitioner filed representation to respondent No.4, but the same was rejected on the ground that he was not entitled to any wages on the principle of “no work no pay”. The petitioner filed representation to respondent No.4, but the same was rejected on the ground that he was not entitled to any wages on the principle of “no work no pay”. He was also conveyed that the period of his absence has already been treated as in service. 3 Feeling aggrieved, the petitioner challenged the order dated 07.07.2014 whereby the petitioner was denied the wages for the period w.e.f 06.06.2002 to 07.05.2014. He also called in question the order dated 12July 2014 passed by the respondents to the extent of imposing interest at the rate of 6% per annum on the amount which was liable to be refunded. 4. While the aforesaid writ petiton was pending adjudication, it is claimed that the pay of the petitioner came to be re-fixed and the petitioner came to know that he has also been denied the benefit of annual increments from the date of his boarding out till reinstatement. He filed another petition being SWP No.2491/2018 claiming, inter alia, quashing of order dated 07.07.2014 with a direction to the respondents to re-fix his pay. 5. Since the issue involved in both the writ petitions aforesaid arise out of the reinstatement of the petitioner in compliance to the Judgment of the Division Bench dated 03.04.2014,therefore, both the petitions were heard together. 6. The respondents have filed their objections in which the stand taken is that the petitioner was boarded out as he was found to be in low medical category i.e S1H-1A2P2E1. He was examined by the Board of Doctors at District Hospital Udhampur on 05.06.2002 where he was declared permanently incapacitated for further service of the respondents. It is submitted that consequent upon the opinion of the Medical Board and acting as per Rule 38 of CCS (Pension) Rule, 1972, the petitioner was boarded out with invalid pension w.e.f 06.06.2002. The respondents in their objections have also stated that the petitioner has been reinstated in compliance to the Judgment of the Division Bench dated 03.4.2014 (supra) and that the said judgment did not provide any payment of back wages. It is further stated that the petitioner was not entitled to any back wages on the principle of „no work no pay’. 7. It is further stated that the petitioner was not entitled to any back wages on the principle of „no work no pay’. 7. Having heard learned counsel for the parties and perused the record, I am of the view that neither the respondents are justified in denying the petitioner wages for the period w.e.f 06.06.2002 to 07.05.2014 nor are they justified in not giving the benefit of re-fixation of salary to the petitioner by taking into consideration the annual increments which would have accrued to the petitioner had he been continued in the service without being boarded out on medical grounds. It is true that because of physical incapacity of the petitioner, which was duly certified by the Medical Board, the petitioner was rendered unfit to perform further duties in the Force i.e CISF, but the fact remains that the respondents in terms of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short” Act of 1995”) were under an obligation to offer the petitioner alternate employment in the Force. Since the respondents had failed to carry mandate of Section 47 of Act of 1995, as such, the Division Bench vide its judgment dated 03.04.2014 set aside both the orders dated 06.02.2002 and 06.06.2002 and held the petitioner entitled to reinstatement into service. The direction was, accordingly, issued to the respondents to adjust the petitioner on the post in accordance with the mandate of Section 47 of Act of 1995. 8. As noted above, in compliance to the judgment dated 03.04.2014, the petitioner was reinstated and the period of his absence was treated as in-service. The petitioner was, however, denied the salary for the period he had remained out of action i.e w.e.f 06.06.2002 to 07.05.2014. The reason put forth by the respondents that the petitioner had not performed any service during the aforesaid period, as such, he was not held entitled to salary on the principle of „no work no pay’ is wholly unjustified. 9. The Division Bench of this Court vide its judgment dated 03.04.2014 (supra) has categorically found the respondents at fault by not carrying the mandate of Section 47 of the Act of 1995. 9. The Division Bench of this Court vide its judgment dated 03.04.2014 (supra) has categorically found the respondents at fault by not carrying the mandate of Section 47 of the Act of 1995. The action of the respondents boarding out the petitioner on medical grounds was held to be bad in the eyes of law by the Division Bench and the orders passed by the respondents were set aside. In such situation, where the petitioner remained out of job for the reasons which are absolutely not attributable to him, the petitioner cannot be deprived of the back wages. Under somewhat similar circumstances, the Hon’ble Supreme Court in the case of Shobha Ram Raturi vs Haryana Vidyut Prasaran Nigam Limited and ors, AIR 2016 Supreme Court 157 in paragraph No.3 held thus: “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 utilised 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””. 10. The law laid down by the Supreme Court in the aforesaid judgment applies with all fours to the case in hand. The petitioner has remained out of job from 06.06.2002 to 07.05.2014 because of the fault of the respondents, who failed to carry the mandate of Section 47 of the Act of 1956 and instead of providing alternate job to the petitioner in the service boarded out him with invalid pension. The judgment relied upon by the respondents rendered by the Hon’ble Supreme Court in the case of Rajasthan State Road Transport Corporation, Jainpur vs Shri Phool Chand (dead) through LRs on 20th September, 2018 is distinguishable and does not apply to the facts of the case in hand. The judgment relied upon by the respondents rendered by the Hon’ble Supreme Court in the case of Rajasthan State Road Transport Corporation, Jainpur vs Shri Phool Chand (dead) through LRs on 20th September, 2018 is distinguishable and does not apply to the facts of the case in hand. The Hon’ble Supreme Court in the aforesaid case has held that workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order and directed his reinstatement in service and in some cases, the Court may decline to award back wages in its entirety, whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The aforesaid observations have been made by the Hon’ble Supreme Court in the context of employees challenging their dismissal from service before the Labour Courts and the other Courts of competent jurisdiction. Even in the case aforesaid cited by the learned counsel for the respondents, the employee was held entitled to 50% of the total back wages. 11. Keeping in view the legal position discussed above, the petitioner cannot be denied the back wages for the period w.e.f 06.06.2002 to 07.05.2014 as he was wrongfully boarded out from service without offering him shelter or alternate employment as mandated by the provisions of Section 47 of the Act of 1995. Accordingly, the order dated 07.07.2014 to the extent it denies wages for the period 06.06.2002 to 07.05.2014 and order dated 12.07.2014 to the extent it imposes interest @ 6% are quashed. The petitioner is, thus, held entitled to wages/salary for the period w.e.f 06.06.2002 to 07.05.2014. He shall also be entitled to re-fixation of his salary by taking into consideration the annual increments which would have accrued to him had he not been boarded out from service by the respondents. Needless to say that while calculating and paying the arrears to the petitioner, the amount received by the petitioner by way of retrial benefits including the pension shall be adjusted. It is, however, clarified that in case the amount received by the petitioner on account of terminal benefits and pension exceeds the amount payable in terms of this judgment, the same would be refunded by the petitioner within two months from the date he is intimated. It is, however, clarified that in case the amount received by the petitioner on account of terminal benefits and pension exceeds the amount payable in terms of this judgment, the same would be refunded by the petitioner within two months from the date he is intimated. Let the respondents consider the case of the petitioner for the reliefs granted hereinabove within a period of two months from the date certified copy of this order is made available to them. 12. Both the writ petitions are disposed of as above along with connected IA.