HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- WRIT - A No. - 18376 of 2015 Petitioner :- Subhash Chandra Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
Hon'ble Bachchoo Lal,J.
1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Kamlesh Kumar Yadav, learned counsel for the petitioner, learned Standing Counsel for the State and perused the record.
2. This writ petition has been filed seeking a writ in the nature of certiorari, quashing the order dated 8.12.2014 passed by State Public Service Tribunal, Lucknow (hereinafter referred to as Tribunal) in Claim Petition No. 1272 of 2012 whereby it has denied 75% of arrears of salary to petitioner for the period 25.4.1992 to January, 2008.
3. The facts, in brief, stated in the writ petition are that petitioner was initially appointed as a Constable in Civil Police on 15.1.1980. On 25.4.1992 his services were terminated by Superintendent of Police, Bulandshahr on the ground of unauthorised absence. Appeal filed against termination order was also rejected by Deputy Inspector General of Police, Meerut Region, Meerut vide order dated 22.1.1993.
4. Against punishment order a Claim Petition No. 45 of 1993 filed by petitioner was allowed vide judgment and order dated 20.9.2007 and order of punishment was set-aside. Respondents were directed to reinstate petitioner in service with all consequential benefits. In respect of back wages Tribunal directed that respondents authority shall pass an appropriate order in accordance with law.
5. In compliance of aforesaid order dated 20.9.2007 Senior Superintendent of Police, Bulandshahr, vide order dated 23.5.2011 denied arrears of wages to petitioner during the period of 25.4.1992 to 8.1.2008 where-against, petitioner filed Claim Petition No. 1272 of 2012 which was decided vide judgment and order dated 8.12.2014, impugned in this writ petition. As already said, Tribunal has partly allowed Claim Petition and directed that petitioner shall be entitled to only 25% of arrears of salary for the period he remained out of service.
6. Learned counsel for the petitioner submitted that once order of dismissal is set-aside, principle of "no work no pay" has no application, still petitioner has been allowed only 25% of back wages which is illegal.
7. Learned Standing Counsel has submitted that since the petitioner had not worked during the period in question he has no right to claim back wages.
8. When an employee is not allowed to work due to fault of State and its authorities, such person is entitled for salary for the period he has not been allowed to work. The principle of "no work no pay" will not apply to this case. This Court in Brijendra Prakash Kulshrestha Vs. Director of Education & others 2007 (3) ADJ 1 (DB) has considered applicability of "no work no pay" and it has been held that an employer cannot deny salary to an employee, who is always willing and ready to work but was not allowed to do so by an act or omission directly attributable to employer.
9. In Bhanu Pratap Vs. Director, Ayurvedic and Unani Sewae, U.P. Lucknow & Ors., 2011 (11) ADJ 606 this Court said:
"9. This Court is of considered view that dismissal of petitioner from service having been found wholly illegal, and it is also having been seen that he was denied work on the post in question by employer in a wholly illegal manner, petitioner should be given relief of reinstatement with all consequential benefits including arrears of salary. This would be in consonance with the principle that an employee has 'no right to work' but only right to claim salary. In absence of anything to show that employee himself was unwilling to work, principle of "No Work No Pay' ought not to be applied in such a case. Such a principle in a case like this, if applied, would amount to confer a premium upon employer to enjoy benefit of a fault of his own. This would amount to allowing him (employer) to take advantage of his own wrong, which is not permissible in law particularly in a court of equity and justice. It is against all canons of justice.
10. A similar issue has been considered in Deepali Gundu Surwase Vs Kranti Junior Adhyapak Mahavidyala (D.Ed.) and others, (2013) 10 SCC 324. Therein Court has observed:
"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. The family may have to borrow from relatives etc. 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 competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires, relevant statutory provisions or principles of natural justice, entitles the employee to claim full back wages. If 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 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."
(emphasis added)
11. The aforesaid view has been referred and followed recently in Raj Kumar Vs Director of Education and others, 2016(6) SCC 541.
12. Here is also a case which does not justifiably attract principle of "no work no pay" for the reason that claimant-respondent has been made to suffer by a total illegal, arbitrary and unjust action on the part of State's authorities.
13. A similar view has also been taken by a Division Bench of this Court (Lucknow Bench) of which one of us (Hon. Sudhir Agarwal,J. was also a member) in State of U.P. and another Vs. R.K. Agrawal and another W.P. Service Bench No. 1345 of 2013 decided on 9.5.2017.
14. In the present case it was neither pleaded by respondents nor even suggested that petitioner was gainfully employed elsewhere when he was out of employment pursuant to order of termination which has been set aside.
15. In view of the settled principle of law laid down in the aforesaid authorities, we do not find any justification for denying arrears of salary to the petitioner for the period 25.4.1992 to 8.1.2008 on the ground of no work no pay, particularly when impugned order of punishment has been set-aside. We are, therefore, of the view that impugned judgment of the tribunal deserves to be modified.
16. The writ petition is allowed. Impugned judgment of Tribunal dated 8.12.2014 is modified to the extent that petitioner shall be entitled for full wages/salary for the period 25.4.1992 to 8.1.2008. He shall also be entitled to all consequential benefits.
Order Date :- 27.4.2018 Masarrat