Gopal Prasad vs Union Of India Through Secy. ...
2013 Latest Caselaw 565 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature at Allahabad
 
Lucknow Bench Lucknow
 

 
***********
 

 
[ A.F.R. ]
 

 
Court No. - 27
 

 
Case :- SERVICE BENCH No. - 1352 of 2010
 

 
Petitioner :- Gopal Prasad
 
Respondent :- Union Of India Through Secy. Ministry Of Railways New Delhi
 
Petitioner Counsel :- Mayankar Singh
 
Respondent Counsel :- Manik Sinha,Chandra Shekhar Sinha
 

 
Hon'ble Devi Prasad Singh,J.

Hon'ble Arvind Kumar Tripathi (II),J.

1. Heard learned counsel for the petitioner and the learned counsel for the respondents as well as perused record.

2. Instant writ petition under Article 226 of the Constitution of India has been preferred against the judgment and order dated 24.12.2009, passed by the Central Administrative Tribunal Lucknow Bench Lucknow (in short Tribunal) whereby, the Tribunal dismissed the O.A. and declined to grant relief for promotional avenues.

3. The petitioner while working as Painter Grade-II, was promoted as Painter Grade-I by the order dated 22/24.3.1993 passed by the respondent No.2 w.e.f. 22.8.1988. By the same order, the promotion of another employee namely, Rama Shankar, allegedly promoted unauthorisedly on the post of Painter Grade-II, was cancelled. Aggrieved by the order dated 22/24.3.1993, Rama Shankar filed O.A. No.293/1993 whereby, the seniority of the petitioner applicant was also challenged. In the said O.A., the petitioner Gopal Prasad was arrayed as private respondent and the interim order dated 23.4.1993 was also passed by the Tribunal to the effect that Rama Shankar will not be reverted and shall be allowed to continue on the post of Painter Grade-II. Because of interim order dated 23.4.1993 passed by the Tribunal, the petitioner's promotional order dated 24.3.1993 could not be given effect. The petitioner Gopal Prasad could not be promoted on the post of Painter Grade-I and Rama Shankar continued to hold the said post. However, the O.A. filed by Rama Shankar was dismissed by the Tribunal on 10.4.2001, upholding the original order dated 22/24.3.1993 whereby the petitioner Gopal Prasad was senior to Rama Shankar. After dismissal of O.A. filed by Rama Shankar, the order dated 22/24.3.1993 was given effect to and the petitioner Gopal Prasad was promoted to the post of Painter Grade-I w.e.f. 28.8.2001. The order was passed by the respondents on 25.8.2003 extending salary of promotional post from 20.8.1988 notionally. Feeling aggrieved, the petitioner approached the Tribunal for payment of salary/arrears of salary of promotional post from 20.8.1988.

4. Before the Tribunal, the respondent filed affidavit along with promotional order dated 22/24.3.1993. The defence set up is two fold, the interim order dated 23.4.1993 in O.A. No.293/1993 and that since the petitioner did not perform duty of Painter Grade-I, with effect from 20.08.1988 to 27.8.2001, the salary has not been given to him and only notional continuity of service has been given on the promotional post of Painter Grade-I.

5. It is stated that petitioner has not shouldered the duties and responsibilities of the post of Painter Grade-I before 27.8.2001, therefore, as per para 228 of Indian Railway Establishment Manual Vol.-I, the petitioner is entitled only for performa fixation and no arrears of salary and other allowances are payable to the petitioner.

6. The Tribunal relied upon the cases reported in 2006 (2) SLJ 327 (SC): U.P. State Brassware Corporation Ltd. And anr. Vs. Uday Narain Pandey and Union of India & Others Vs. C.A.T. & Others, 2002-2003 Administrative Tribunal Full Bench Judgments page 347. In the cases relied upon by the Tribunal, it has been held by Hon'ble Supreme Court and the Full Bench (supra), that no precise formula can be laid down under what circumstances payment of entire back wages shall be allowed. In the case of U.P. State Brassware Corporation Ltd., (supra), Hon'ble Supreme Court held that indisputably, the question with regard to payment of back wage shall depend upon the facts and circumstances of each case. Their lordship held that in all cases backwage may not be granted.

7. Tribunal held that since the promotion order dated 24.3.1993 was given effect to after dismissal of O.A. No.293/1993 filed by Rama Shankar, with effect from 28.2001 salary may not be given of the period w.e.f. 20.8.1988 to 28.8.2001.

8. Assailing the impugned order, Sri Mayankar Singh learned counsel for the petitioner submits that it was because of the interim order passed in the pending O.A. filed by Rama Shanker, promotional order could not be given effect to and the petitioner was deprived to discharge duty on the post of Painter Grade-I. The O.A. was later on dismissed. Submission of petitioner's counsel is that the petitioner cannot be put to suffer either because of pendency of O.A. filed by Rama Shankar or because of interim order passed by the Tribunal in the O.A. filed by Rama shankar. He would submit that no Court by its order or action injure any person since under the doctrine of merger, the interim order merges into final order and since the O.A. of Rama Shankar was dismissed, by fiction of law, the petitioner be entitled for all benefits including the promotional avenues along with salary.

9. Petitioner's counsel relied upon the case reported in (2010) 1 SCC 417: Amarjeet Singh and others. Vs. Devi Ratan and others. In the case of Amarjeet Singh (supra) Hon'ble Supreme Court held that where a person continued on higher post under order of Court for years to come and in consequence the exercise for making promotion was not undertaken, then litigant cannot be put to suffer for no fault on his part. No litigant can derive any benefit from mere pendency of writ petition in the court of law. A party cannot be allowed to take any benefit of its own wrongs by getting an interim order and thereafter blame the court. Relevant portion from the judgment of Amarjeet Singh (supra) is reproduced as under:

"17. No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of its own wrongs by getting an interim order and thereafter blame the court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice to one, becomes applicable in such a case. In such a fact situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the court. (Vide Shiv Shanker v. U.P. SRTC: 1995 Supp (2) SCC 726, GTC Industries Ltd. v. Union of India : (1998) 3 SCC 376 and Japur Municipal Corpn. v. C.I. Mishra: (2005) 8 SCC 423.

18. In Ram Krishna Verma v. State of U.P.: (1992) 2 SCC 620, this Court examined the similar issue while placing reliance upon its earlier judgment in Grindlays Bank Ltd. v. ITO: (1980) 2 SCC 191, and held that no person can suffer from the act of the court and in case an interim order has been passed and the petitioner takes advantage thereof and ultimately the petition is found to be without any merit and is dismissed, the interest of justice requires that any undeserved or unfair advantage grained by a party invoking the jurisdiction of the court must be neutralised.

19. In Mahadeo Savlaram Shelke v. Pune Municipal Corpn.: (1995) 3 SCC 33, this Court observed that while granting the interim relief, the court in exercise of its discretionary power should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the loss ensued due to the order of injunction granted in favour of the plaintiff. Even otherwise the court while exercising its equity jurisdiction in granting injunction is also competent to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the court. The court can do so in exercise of its inherent jurisdiction in doing ex debito justitiae mitigating the damage suffered by the defendant by the act of the court in granting injunction restraining the defendant from proceeding with the action complaint of in the suit. Such a procedure is necessary as a check on abuse of the process of the court and adequately compensate the damages or injury suffered by the defendant by act of the court at the behest of the plaintiff.

20. In South Eastern Coalfields Ltd. v. State of M.P.: (2003) 8 SCC 648,this Court examined this issue in detail and held that no one shall suffer by an act of the court. The factor attracting applicability of restitution is not the act of the court being wrongful or a mistake or error committed by the court; the test is whether on account of an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences."

10. The Tribunal while adjudicating the controversy even has not taken into account the judgment of Hon'ble Supreme Court in the case of U.P. State Brassware Corporation Ltd., (supra) whereby Hon'ble Supreme Court held that no precise formula can be laid down as to under what circumstances the payment of entire back wages should be allowed and it will depend upon the facts and circumstances of each case. The Tribunal should have appreciated the petitioner's hardship which he suffered for no fault on his part. It was the stay order granted by the Tribunal, seems to be without application of mind and later on, on account of pendency of O.A., the petitioner could not avail the benefit of promotional avenue along with salary from 24.3.1993. Because of erring system and sometimes, because of inactive courts litigants suffer. Sometimes proceedings are kept pending for years to come and litigant retires. In case ultimately, the writ petition is dismissed before the Tribunal or this court after decades and someone suffer because of interim order passed thereon, then in such a situation, it shall always be necessary for the Court to pay back wages or compensate in one way or the other form. It shall be travesty of justice to make a person to suffer because of pendency of writ petition or even a suit or petition in the Court or Tribunal.

11. This Court in the case reported in 1993 (11) LCD 486: S.S. Barathokey Vs. Chairman, U.P. Seeds and Tarai Development Corpn. Ltd., and another, after considering the apex court judgment, reiterated that no one be put to suffer because of some commission or omission on the part of the Court or its employees, to quote relevant portion as under:-

"14. In M/s. Star Diamond Co. India v. Union of India and others AIR 1987 SC 179 also Hon'ble Supreme Court has held that law declared by it are binding on all and not merely on the parties. Hon'ble Court has observed:-

"The applicant states that the applicant was neither a party nor was served with any notice of the said proceedings resulting in the said two decisions. According to the applicant, it was not bound by the directions therein. We are unable to accept the said contention. Such decisions of Court laying down the position of law are laws binding on all" (Emphasis supplied)."

12. In view of the above, we are of the view that Tribunal has failed to discharge its obligation in accordance with law. By not granting salary of the promotional avenues along with other benefits from 24.3.1993, the Tribunal has failed to exercise jurisdiction vested in it. In case, the promotional order would have been implemented immediately, the petitioner would have availed of service benefits including salary of promotional avenues i.e., Painter Grade-I in pursuance of the order dated 24.3.1993.

13. In case peoples are deprived of their benefits because of the order of this court or any court being entitled after dismissal of writ petition in such case, it shall be appropriate for the Court to grant back wages and all consequential benefits.

14. In view of the above, the writ petition deserves to be allowed.

15. A prayer has been made by the respondents' counsel Sri Chandra Shekhar Sinha, that respondents may be entitled to recover the salary paid to Rama Shankar. We refrain to pass any order in this regard. Since Rama Shankar is not a party, no order may be passed against a person who is not a party in a case. It is always open to State or respondents to proceed in accordance with law.

16. Accordingly, writ petition is allowed. The O.A. No.494/2004 filed by the petitioner also stands allowed. A writ in the nature of certiorari is issued quashing the judgment and order dated 24.12.2009, passed by the Tribunal in O.A. No.494/2004.

A writ in the nature of mandamus is issued commanding respondents to provide all consequential benefits to the petitioner including arrears of salary in terms of order dated 24.3.1993 forthwith.

A writ in the nature of mandamus is further issued directing the respondents to provide all promotional benefits including salary to the petitioner expeditiously say, within three months from the date of receipt of a certified copy of this order and take a decision in accordance with law. The decision shall be taken expeditiously say, within two months from the date of receipt of a certified copy of this order.

17. The writ petition is allowed accordingly.

No order as to cost.

[Justice Arvind Kumar Tripathi (II)] [ Justice Devi Prasad Singh]

Order Date :- 9.4.2013

Rajneesh DR-PS)