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2021 DIGILAW 1 (MAN)

Mochi Jumma Khan v. The Union of India

2021-01-11

AHANTHEM BIMOL SINGH

body2021
JUDGMENT Ahanthem Bimol Singh, J. - Heard Mr. N. Umakanta, learned counsel appearing for the petitioner and Mr. S. Suresh, learned ASG appearing for the respondents. 2. The present writ petition has been filed challenging the order dated 18.08.2010 passed by the Commandant-165 Bn, CRPF wherein, it has been ordered that after his reinstatement in service, the petitioner will not be entitled to any back wages for the intervening period between the date of his removal from service till the date of joining his service, coupled with a prayer for directing the respondents to pay the arrear salary of the petitioner for the period from which he was removed from service till the date of his reinstatement. 3. The facts of the present case in a nutshell is that while the petitioner was serving as CT/Mochi under No. 960230027 of the 165 Bn., CRPF, he was detailed for duty on 04.09.2005 for protection of the vehicles engaged for transportation of store materials and protection party. On that day while the petitioner was on duty, he had a heated argument with one Shri RK Nair, CT/Driver and the same was followed by some scuffle between the two in which the rifle allotted to the petitioner was snatch away by the aforesaid Shri RK Nair and deposited the same to the higher authority of the CRPF. Thereafter, complaint was made against the petitioner that the petitioner cocked his rifle and pointed the same at the aforesaid Shri. R.K. Nair, before the same was snatch away by the said CT/Driver. It was also alleged that the petitioner was under the influence of liquor at the time of occurrence of the incident. 4. In order to ascertain whether the petitioner consume liquor and was under the influence of liquor while on duty on 04.09.2005, the CRPF authority sent the petitioner to the District Chief Medical Officer, Dibrugarh, Assam for medical examination. Thereafter, the medical officer in the Department of casualty, medical college and hospital, Dibrugarh, examining the petitioner and submitted his report to the CRPF authority on 08.09.2005, wherein, it was reported that the petitioner was normal by all clinical test, however, the medical officer, basing of the clinical findings, gave his opinion that the petitioner has consumed alcohol like substance but he was under control. 5. 5. On the aforesaid premises, the disciplinary authority initiated the disciplinary proceeding against the petitioner under sections 11 (i) of the Central Reserve Police Force Act, 1949. After following all the due procedure and after holding a detail enquiry, the enquiry officer submitted his report to the disciplinary authority by holding that the charges level against the petitioner has been proved and on the basis of the said report the disciplinary authority issued an order dated 25.01.2006 imposing upon the petitioner the penalty of removal from service and consequently the petitioner was terminated from service. The statutory appeal filed by the petitioner against the aforesaid order of the disciplinary authority was also dismissed by the appellate authority by an order dated 21.02.2007. Having been aggrieved, the petitioner filed a writ petition being W.P. (C) No. 247 of 2007 in the Hon'ble Guwahati High Court challenging both the orders of the disciplinary authority as well as of the appellate authority. 6. The said writ petition was allowed by the Hon'ble High Court by interfering with the findings of the enquiry officer and by quashing the impugned orders removing the petitioners from service and also the order dismissing the statutory appeal filed by the petitioner, vide judgment dated 09.03.2009 passed in W.P. (C) No. 247 of 2007. However, in the said judgment the Hon'ble Judge recorded the admission made by the petitioner that there was a scuffle between the petitioner and another member of the force. After quashing the orders impugned in the said writ petition, the Hon'ble Court gave the following directions:- "14- For the reasons discuss above and in view of the quashing of order dated 25.01.2006 (Annexure-9) and 21.02.2007 (Annexure-11), the petitioner shall be reinstated in service immediately. However, it is left to the respondents authority to reconsider what will be the correct measures of punishment to be imposed on the petitioner in the light of the observations and discussions above, if at all the scuffle, as admitted, amount to a misconduct under Law. But such reconsideration should be confined to punishment other then the punishment of removal or dismissal from service. Further, I leave it to the respondent authorities to make appropriate order for grant of consequential benefits on reinstatement of the petitioners, as directed above." 7. But such reconsideration should be confined to punishment other then the punishment of removal or dismissal from service. Further, I leave it to the respondent authorities to make appropriate order for grant of consequential benefits on reinstatement of the petitioners, as directed above." 7. The respondents filed a writ appeal being W.A. No. 48 of 2009 against the Judgment of the learned Single Judge, however, the said writ appeal was dismissed as being devoid of merit and the learned Division Bench upheld the Judgment of the learned Single Judge. 8. In purported compliance of the orders passed by the Hon'ble High Court, the commandant-165 Bn. CRPF issued the order dated 18.08.2020, impugned herein, reinstating the petitioner in service from the date of joining and ordering that the petitioner will not be entitled to any back wages for the period from the date of his removal till the date of his reinstatement by invoking the principle of no work no pay. On receipt of the said order dated 18.08.2020, the petitioner reported for duty on 21.09.2010 and he was reinstated only from that date. However, feeling aggrieved by the nonpayment of back wages, a notice dated 30.03.2011 was sent to the commandant- 165 Bn. CRPF by the counsel of the petitioner on his behalf. requesting for modifying or altering the aforesaid order of reinstatement and requesting for allowing the petitioner to enjoy his back wages. When the respondents failed to consider the claim of the petitioner for payment of his back wages, the petitioner approached this Court by filing the present writ petition for quashing the aforesaid impugned order and for issuing direction to the respondents to pay the arrear salary of the petitioners for the period from 25.01.2006 (the date of his removal from service) to 21.09.2010 (the date of his reinstatement in service). 9. Mr. N. Umakanta, learned counsel appearing for the petitioner submitted that in the earlier round of litigation, the Hon'ble Gauhati High Court by Judgment dated 09.03.2009 passed in W.P. (C) No. 247 of 2007 had ready quashed and set aside not only the enquiry report submitted by the enquiry officer but also the orders issued by the disciplinary authority removing the petitioner from service and the order passed by the Appellate authority rejecting the statutory appeal filed by the petitioner. Thereafter, the Hon'ble Gauhati High Court directed the respondents authority to reinstate the petitioner in service immediately and to make appropriate order for grant of consequential benefits on reinstatement of the petitioner. The learned counsel further submitted that the writ appeal being W.A. No. 48 of 2009 filed by the respondents authority against the said Judgment dated 09.03.2009 passed in W.P. (C) No. 247 of 2007 has also been dismissed by the Appellate Court by Judgment and order dated 11.02.2010 and therefore, the said Judgment of the Gauhati High Court had attained finality as the respondents authority have not challenged the said Judgment passed by the Gauhati High Court in the said writ Appeal. Accordingly, it is submitted on behalf of the petitioner that the said Judgment passed by the Hon'ble Gauhati High Court in favour of the petitioner is binding to the respondents and they are duty bound to implement the directions given by the Hon'ble High Court in the aforesaid Judgments. 10. The learned counsel for the petitioner also submitted that the respondents have not denied the categorical statement made by the petitioner in Paragraph 9 of the present writ petition that the petitioner was not engaged in any gainful employment either in any private or Government institutions except for engaging himself in manual works as a means for his survival. It is accordingly submitted by the learned counsel that the petitioner is entitled to get his back wages for the period from the date of his removal till the date of his reinstatement. In support of his contention Mr. N. Umakanta, learned counsel, place reliance on the Judgments rendered by the Apex Court in the case of "Deepali Gundu Surwase vs. Kranti Junior AdhyapakMahavidyala (D.ED) and Others"reported in (2013) 10 SCC 324 , wherein the Apex Court in Para 21 & 22 held as under:- "21. The word "reinstatement" has not been defined in the Act and the Rules. As per Shorter Oxford English Dictionary, Vol. 2,3rd Edn., 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 Shorter Oxford English Dictionary, Vol. 2,3rd Edn., 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 Edn., 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 Edn., "reinstatement" 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." "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 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. 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." Reliance has also been place in Judgment of the Apex Court in the case of "Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigam Limited and Others" reported in (2016) 16 SCC 663 . At paragraphs 3 & 5, the Hon'ble Apex Court has held as under:- "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". "5.The appellant shall be paid wages for the above period within three months from today. His retrial benefits, if necessary, shall be recalculated on the basis thereof, and shall be released to him within a further period of three months". 11. The learned counsel for the petitioner submitted that during the period from 25.01.2006 till 21.09.2010, the petitioner did not voluntarily or on his own accord abstain himself from discharging any official duties or leave office without proper permission but he failed to resume service w.e.f. 25.01.2006 on account of his illegal removal from service. 11. The learned counsel for the petitioner submitted that during the period from 25.01.2006 till 21.09.2010, the petitioner did not voluntarily or on his own accord abstain himself from discharging any official duties or leave office without proper permission but he failed to resume service w.e.f. 25.01.2006 on account of his illegal removal from service. Accordingly, the learned counsel submitted that the case of the petitioner is squarely covered by the Judgments of the Apex Court cited herein above and the petitioner is, therefore, entitled to get all his back wages for the period w.e.f. 25.01.2006 till the date of his reinstatement in service, i.e. 21.09.2010. 12. Mr. S. Suresh, learned counsel for the respondents submitted that in the Judgment dated 09.03.2009 passed by the Gauhati High Court in W.P. (C) No. 247 of 2007, the learned Single Judge clearly recorded the admission made by the petitioner that a scuffle between the petitioner and another member of the force did occurred and on the basis of the said admission, the learned Single Judge directed the respondent authorities to reconsider what will be the correct measure of punishment to be imposed on the petitioner, if at all the scuffle, as admitted, amount to a misconduct under Law. In pursuance of the aforesaid directions of the Hon'ble High Court and after due consideration, the Commandant - 26 Bn., CRPF, passed an order dated 24.11.2010, imposing upon the petitioner the punishment of "Reduction to one stage lower in the time scale of his pay for a period of one year without Cumulative effect". The learned counsel further submitted that the petitioner has not challenged the said subsequent order dated 24.11.2010 and accepted the punishment impose by the authorities on him. Therefore, it is crystal clear that the petitioner was not exonerated honourably from the charges leveled against him and as such, he is not entitled to get the back wages as claim by him. Therefore, it is crystal clear that the petitioner was not exonerated honourably from the charges leveled against him and as such, he is not entitled to get the back wages as claim by him. In support of his contention, the learned counsel for the respondents relied on the Judgment rendered by the Apex Court in the case of "Gopal DuttShukla vs. Bihar State Road Transport Corporation andOthers"reported in (2019) 13 SCC 323 , wherein the Hon'ble Apex Court held as under:- "The appellant is aggrieved by the denial of service benefits for the period between 8-10-2004, the date on which the order on compulsory retirement was passed, and 28-11-2007, the date on which the order of compulsory retirement was set aside and reinstating him in service. "2. We have heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the Corporation. The original order of compulsory retirement imposed on the appellant on 8-10-2004 having been set aside on 28-11-2007, the appellant would normally have been entitled to all the consequential benefits. But the fact remains that he has not actually worked from the date of punishment imposed on him i.e. from 8-10-2004 till reinstatement pursuant to the order dated 28-11-2007. "3. Therefore, the respondents are directed to treat the service of the appellant between the date of compulsory retirement and the date of reinstatement pursuant to the order dated 28-11-2007 as continuous for all purposes, except for the actual wages". 13. In the case of "Depali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyala (D.ED) and Others" (Supra), the Hon'ble Apex Court after considering a number of Judgments in connection with payment of back wages after reinstatement, elucidate the following principle of Law as under:- 38. The propositions which can be culled out from the aforementioned judgments are: "38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. "38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. "38.3. "38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. "38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. "38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. "38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the Court or Tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. "38.6 In a number of cases, the superior courts have interfered with the award of the primary adjudicator/ authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-a-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees. "38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman". 14. After hearing the counsel appearing for the parties and perusal of the records as well as after considering the authorities relied on by the counsel for the parties, this Court is of the considered view that the authorities have removed the petitioner from service on the basis of an erroneous and unsustainable report submitted by the enquiry officer and on account of such illegal removal from service, the petitioner was prevented from discharging his duties w.e.f. the date of his removal till the date of his reinstatement. There was no instance of the petitioner voluntarily or on his own accord failing to attend his office and refusing to discharge any duty assigned to him without proper permission. In fact, the petitioner was illegally prevented by the authorities from discharging his duties by removing him from service. Moreover, the respondents have not denied the statement made by the petitioner that he was not engaged in any gainful employment either in any Government or private institution during the period from the date of his removal from service till the date of his reinstatement. Therefore, this Court is of the considered view that the ratio laid down by the Apex Court in the case of "Deepali Gundu Surwase Vs. Kranti Junior AdhyapakMahavidyalaya (D.ED) and Others" reported in (2013) 10 SCC 324 (Supra) squarely covers the case of the petitioner and the petitioner is entitled to get his back wages. Therefore, this Court is of the considered view that the ratio laid down by the Apex Court in the case of "Deepali Gundu Surwase Vs. Kranti Junior AdhyapakMahavidyalaya (D.ED) and Others" reported in (2013) 10 SCC 324 (Supra) squarely covers the case of the petitioner and the petitioner is entitled to get his back wages. However, it also an undeniable fact and on record that the petitioner was not exonerated honourably from the charges levelled against him and he was imposed penalty of reduction to one stage lower in the time scale of his pay for a period of 1 year without cumulative effect and the petitioner also accepted such punishment without any protest. 15. In the light of the findings and discussions made herein above, this Court is of the considered view that the ends of justice will meet if the respondents are directing to pay the petitioner 50 % of his back wages. Accordingly, the writ petition is allowed by directing the respondents to pay to the petitioner 50 % of his back wages for the period from 25.01.2006 (date of his removal from service) till 21.09.2010 (the date of his reinstatement) within a period of 3 months from the date of receipt a copy of this order. With the above direction, the present writ petition is disposed of. The parties are to bear their own cost.