Ram Kishan vs State Of U.P. & Another
2014 Latest Caselaw 8853 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 53
 

 
Case :- WRIT - A No. - 8309 of 2001
 

 
Petitioner :- Ram Kishan
 
Respondent :- State Of U.P. & Another
 
Counsel for Petitioner :- Shamsher Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

The petitioner has preferred this writ petition for quashing of the impugned order dated 12.7.2000 passed by the respondent no.2 and for payment of his salary for the period when he was under suspension i.e. 19.5.1982 to 27.4.1996.

The brief facts of the case are that the petitioner was a tube well operator in Irrigation Department. He was placed under suspension on 19.5.1982 on the ground of criminal proceeding under section 161 IPC and 5(2) of Prevention of Corruption Act, 1988 was pending against the petitioner. In the said criminal case he was acquitted by the IV Additional Sessions Judge on 19.5.1992. A copy of the judgment of the Sessions court is on the record. A perusal of the order indicate that petitioner was falsely implicated in the criminal case and prosecution failed to establish the charges against the petitioner.

After acquittal on 19.5.1992, the petitioner made several representations for his joining but no action was taken. He preferred Writ petition No. 31430 of 1994 for a direction upon the respondents to pay his arrears of salary and permit him to join his duties. Pending consideration of the said writ petition the second respondent vide order dated 26.4.1996 permitted the petitioner to join his duty at Tube well No.24 NG Sub. Division III, and his suspension order was revoked. After joining the petitioner made a fresh representation for payment of his salary during the period of his suspension.

In Writ Petition No. 31430 of 1994 an interim mandamus was issued on 15.10.1997 with a direction to either pay the difference of salary to the petitioner or file counter affidavit within three weeks. The said order was not complied with as neither the difference of salary was made nor counter affidavit was filed within the stipulated time. The said writ petition was finally disposed of on 2nd August, 1999 with a direction to the authorities to decide the petitioner's representation in accordance with law by a speaking order. In compliance thereof the impugned order has been passed wherein it is mentioned that the petitioner is not entitled for the back wages on the ground of no work no pay.

A counter affidavit has been filed. In the counter affidavit the same stand has been reiterated.

I have perused the record and heard learned Standing Counsel.

Indisputably, the petitioner was suspended on the ground that criminal proceeding is pending against him. The Department has not initiated any disciplinary proceedings against the petitioner. The petitioner has been acquitted and has also been reinstated by the respondents but he has been denied salary from the year 1982 to 1996 only on the ground of no work no pay. It is a trite law that no work no pay shall be applicable in such circumstances where there is fault of an employee. The petitioner was a Class IV employee, he was kept out of job for twelve years only on the ground of pendency of criminal proceeding against the petitioner. It is also trite law that on the same charges the Departmental proceedings as well as criminal proceedings can go on simultaneously and in case the employee is acquitted in a criminal case the employer is not bound to accept that decision and make it independent view in the disciplinary proceeding holding him guilty as the law of evidence is not applicable in the disciplinary proceedings. But in the present case the department preferred not to initiate any disciplinary proceedings. Therefore, after acquittal of the petitioner he is entitled for full pay for the period when he was kept out of the employment.

As mentioned above from the perusal of the judgment of the trial court it is evident that there is finding that petitioner was falsely implicated in the case on account of personal enmity between the complainant and the petitioner.

The Supreme Court in the case of Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80, held that ordinarily, an employee whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the period he was in employment. The Court held that the back wages is a normal Rule. This case was consistently followed. However, with the passage of time the Court took a pragmatic view that employer may not be compelled to pay to the workman during the period when he did not worked. Reference may be made to the judgment of U.P.State Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006)1 SCC 479; Haryana State Electronics Development Corpn. Ltd. v. Mamni, (2006) 9 SCC 434; P.V.K. Distillery Ltd. v. Mahendra Ram, (2009) 5 SCC705; Reetu Marbles v. Prabhakant Shukla, (2010) 2 SCC 70; and U.P. SRTC v. Mitthu Singh (2006)7 SCC 180.

In a recent case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, JT 2013 (12) SC 322 the Supreme Court after analyzing a large number of its earlier cases again held that in case of removal/termination of service reinstatement with continuity of service and back wages is a normal rule. In the said case the appellant was a teacher in a primary school. The institution was receiving grant-in-aid by the State Government. She was suspended. The Education Officer did not paid her subsistence allowance also. Thereafter she was subjected to the disciplinary proceedings and her services were terminated. Her termination order was quashed by the School Tribunal. The order of the Tribunal was challenged in the High Court in the Writ Petition. The learned Single Judge set aside the direction given by the School Tribunal for payment of back wages. Aggrieved by the said order the teacher preferred Special Leave Petition in the Supreme Court. The relevant part of the judgment read as under :-

"The propositions which can be culled out from the aforementioned judgments are:

i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

ii)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.

iii) 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 persons who makes a positive averments 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.

iv) 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.

v) 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 concerned Court or Tribunal 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 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 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.

vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization 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. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).

vii) The observation made in J.K.Synthetics Ltd. v. K.P.Agrawal (supra) 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 herein above and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."

In view of the above taking into consideration the facts and circumstances of this case I am of the view that the petitioner is entitled for 40 percent of the back wages. The petitioner shall be paid the said amount within four months from the date of communication of this order.

Let a certified copy of this order be issued to learned Standing Counsel free of cost for communication and compliance of this order.

Writ petition is allowed.

There shall be no order as to costs.

Order Date :- 20.11.2014

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