Ranveer Singh vs Punjab National Bank And 2 Others
2017 Latest Caselaw 7131 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 28
 

 
Case :- WRIT - A No. - 1907 of 2016
 

 
Petitioner :- Ranveer Singh
 
Respondent :- Punjab National Bank And 2 Others
 
Counsel for Petitioner :- Prahlad Kumar Khare
 
Counsel for Respondent :- Dharmendra Vaish,S.C.
 

 
Hon'ble Saumitra Dayal Singh,J.

This writ petition has been filed by the petitioner to quash the orders dated 24.03.2014 and 02.01.2016 by which the petitioner's representation for award of full back wages/salary has been rejected by the disciplinary authority as also the appeal therefrom has been rejected by the appellate authority of the respondent bank. Facts giving rise to the present petition are that earlier the petitioner - a cashier in the respondent-Bank was dismissed from service on 24.04.2006. His departmental appeal against the same was also dismissed on 13.09.2006. The petitioner did not raise any industrial dispute but approached this Court directly by means of writ petition being Writ A No. 63874 of 2006. It came to be allowed on 06.01.2012 whereby the petitioner was reinstated in service. For ready reference the operative part of the judgment is quoted herein below:-

"I, therefore, allow the writ petition and set aside the orders impugned dated 3.4.2006 and 24.4.2006 passed by the disciplinary authority and order dated 13.9.2006 passed by the appellate authority and respondents are directed to reinstate the petitioner in service. In case the respondents intend to hold fresh enquiry against the petitioner, the observation made here-in-above shall not affect the outcome of said enquiry."

The respondent bank filed an intra court Special Appeal against the judgment dated 06.01.2012. However, it is on record that said judgment was neither stayed nor set aside. Thereafter, the petitioner was reinstated in service on 11.05.2012, consequent to orders passed by this Court in contempt proceedings initiated by the petitioner. However, he was not paid salary from the date of termination till the date of his reinstatement. The petitioner therefore filed another Writ Petition being Writ A No. 59530 of 2012 claiming payment of the said salary. It was disposed of by a judgment dated 11.11.2013 with the following observation:-

"Under the circumstances, there is no option but to direct the Bank i.e. respondent no. 2 to consider the claim of the petitioner with regard to salary from 4.3.2005 to 13.5.2012 consequent upon allowing of the writ petition No. 63874 of 2006 by judgment dated 6.1.2012 and pass appropriate orders within a period of three months from the date a certified copy of this order along with fresh representation is produced before the concerned authority."

Thereafter, on 02.01.2016, the petitioner's application/ representation for grant of salary was rejected for reason of pendency of certain other disciplinary proceedings in pursuance of another charge sheet dated 25.03.2004 issued against the petitioner. Also, the bank filed an application seeking recall of the order dated 11.11.2013, passed by this Court on the second writ petition filed by the petitioner. Basically, the bank sought more time to decide petitioner's representation. That application was allowed on 26.10.2015. The bank was granted three months' further time to take appropriate decision. Thereafter, the bank has proceeded to reject the claim of the petitioner by order dated 02.01.2016 for payment of salary. It has been observed that upon his reinstatement, two inquiries were conducted against the petitioner. First, in respect of charge sheet dated 25.3.2004 and second in respect of charge sheet dated 8.04.2005. By order dated 16.07.2014, the petitioner was dismissed from service in pursuance of charge sheet dated 25.3.2004. Consequently, the inquiry proceedings in pursuance of the later charge sheet dated 8.4.2005 (that had formed the subject matter of earlier two writ petitions filed by the petitioner) was put in abeyance. It has remained thus till date. Thus the disciplinary authority held the petitioner not entitled to salary for the period of suspension from 04.03.2005 to 24.04.2006 as he was dismissed from service on 24.04.2006 and further he held the petitioner not entitled to salary payment for the subsequent period from 24.04.2006 to 13.05.2015 on the principle of 'no work no pay'. Last, it was mentioned in the event of bank's Special Appeal against the judgment dated 06.01.2012 being allowed, the petitioner would not be eligible to any relief.

Learned counsel for the petitioner first submits, the petitioner was reinstated in service on account of defect in the inquiry procedure adopted by the petitioner and that the judgment dated 06.01.2012 has attained finality. Further, in view of the fact that the respondent-Bank had sought time to make the salary payment to the petitioner, it could not have rejected the claim on the principle of 'no work no pay'.

Thus, he submits, once the writ petition being Writ A No. 63874 of 2006 was allowed and the petitioner was reinstated in service and further in view of the fact that the respondents, on the first occasion stated that the salary payment cannot be made because of the pendency of the other disciplinary proceedings and thereafter sought time to release the salary payment of the petitioner, it was not open to them to pass the order dated 02.01.2015 rejecting the claim of the petitioner taking a new ground of 'no work no pay'.

In support of his submission, he first relied on the judgment of this Court in the case of Ramesh Singh Vs. Agragami Kshetra Vikas Agency, Ajitmal, Etawah and Another reported in 2012 (1) AWC 172. It was a case where an industrial dispute had been raised by the petitioner, which was decided in his favour. The said petitioner Ramesh Singh was directed to be reinstated with 50% back wages. He challenged the said order before this Court. While dismissing the writ petition this Court had observed as below:-

"All these factors are required to be considered before granting back wages to the workman. Discretionary power of grant of wages has been restricted keeping in view the fact that a workman contributed little or nothing at all for a period that was spent unproductively. Commutative effect is that order of reinstatement does not result in automatic entitlement of back wages. Applying this principle, it is to be seen that the petitioner has not discharged the burden of proof that he was not gainfully employed during the period he was out of service. Second aspect is that the petitioner has not put more than three years of service and he did not possess any special qualification and as such, he could not claim back wages as a matter of right. The tribunal has awarded 50% back wages to the workman in the facts and circumstances of the case could not be found to be unreasonable or arbitrary. I fortify my view with the judgment of Apex Court in the case of U.P.S.R.T.C. Ltd. Versus Sarada Prasad Misra and another [(2006) 4 SCC 733] in which the Apex Court has held that :

"From the above cases, it is clear that no precise formula can be adopted nor 'cast iron rule' can be laid down as to when payment of full back wages should be allowed by the court or Tribunal. It depends upon the facts and circumstances of each case. The approach of the Court/Tribunal should not be rigid or mechanical but flexible and realistic. The Court or Tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the second question, the Court or Tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order."

Then, learned counsel for the petitioner has relied on another judgment of the learned Single Judge in the case of Bhagwat Prasad Vs. State of U.P. and others passed in Writ-A No. 17036 of 2008. In that case, the petitioner had been transferred. However, he was not allowed to join at the transferred post for reason - there was no vacancy. Thus, he was kept waiting for a period of two years and his claim for salary was rejected on the principle of 'no work no pay'. The writ petition was allowed and entire salary payment was directed to be made to that petitioner.

Then, learned counsel for the petitioner had also relied on the judgment of the Supreme Court in the case of Tapash Kumar Paul Vs. BSNL and another reported in (2014) 15 SCC 313. That case had also arisen under the Industrial Disputes Act. There, upon reference, the Industrial Tribunal granted relief of reinstatement. However, instead of allowing any claim of back-wages, the Tribunal granted relief at Rs. 20,000/- by way of lump-sum compensation.

The aforesaid award was challenged by the management before the single judge of the Calcutta High Court. The award was upheld in entirety and the writ petition of the Management was dismissed. The management then preferred an intra court appeal before the division bench of that Court which came to be allowed and the award of reinstatement was set aside. It was then provided that an amount of Rs. 20,000/- be paid to the workman in lieu of the reinstatement. This judgment was challenged by the workman before the Supreme Court. The Supreme Court allowed the appeal filed by the workman and restored the judgment of the learned single judge of the High Court.

Learned counsel for the petitioner then relied on another judgment of the Supreme Court in the case of State of U.P. Vs. Dayanand Chakrawarty reported in (2013) 3 SCC 595 wherein in respect of employees of the Jal Nigam governed by the specific Rules and Regulations, it was observed as under:-

"In view of the orders passed by this Court in Harwindra Kumar(supra), Radhey Shyam Gautam(supra) and Jaswant Singh(supra), it was not open to the High Court to rely on some other decision of this Court, ratio of which is not applicable in the present case for determining back wages of respondents restricting it to be 20% of the basic salary. We observe that the principle of ''no pay no work' is not applicable to the employees who were guided by specific rules like Leave Rules etc. relating to absence from duty. Such principle can be applied to only those employees who were not guided by any specific rule relating to absence from duty. If an employee is prevented by the employer from performing his duties, the employee cannot be blamed for having not worked, and the principle of ''no pay no work' shall not be applicable to such employee."

Lastly, reliance has been placed on another judgment of the Supreme Court in the case of State of U.P. Vs. Charan Singh reported in (2015) 8 SCC 150. That case had also arisen from an award of the Labour Court. The Tribunal had passed an award of reinstatement without back-wages. Upon a writ petition being filed against such an award by the State, the award was modified and it was held that the State Government is liable to pay the entire amount for the period of his disengagement. The said judgment of this court was upheld by the Supreme Court.

Opposing the writ petition, learned counsel for the respondent bank submits, in the first place the only relief granted to the petitioner by this court was of reinstatement and not of back wages. Therefore, the bank has not made any mistake in refusing to grant that relief to the petitioner. Second, he submits, the petitioner was subsequently dismissed from service on 16.07.2014 in pursuance of another inquiry and therefore he is not entitled to any part of back-wages under the judgment of this court dated 06.01.2012. Third, relying on section 10(1)(d) of the Industrial Disputes Act, 1947, he submits, the only remedy available to the petitioner in such a case is to seek a reference under that Act for adjudication of the dispute between the parties as to whether the petitioner is entitled to back-wages and if yes to what extent ? He also submits such a dispute cannot be adjudicated in a writ proceeding.

First, I propose to deal with the precedential law relied upon by learned counsel for the petitioner, to determine the correct principle to be applied to the facts of this case. The judgment in the case of Ramesh Singh (supra) is not applicable to the present case inasmuch the present case does not arise out of award of a Labour Court or the Industrial Tribunal. In that case writ petition had arisen from an award upon an industrial dispute adjudicated by the labour Court/Tribunal in which 50% back-wages had been awarded by the Tribunal. This Court, in the writ petition filed by the workman had only proceeded to dismiss the same and thus the award of 50% back-wages made by the Tribunal was upheld. Though, the principle to be applied in such cases was discussed, yet, the court only maintained the award of 50% back-wages made by the Tribunal.

In the instant case, the earlier judgment of this Court on which reliance has been placed by the learned counsel for the petitioner does not in any way even remotely suggest grant of relief of back-wages. Therefore the judgment of this court in the case of Ramesh Singh (supra) is distinguishable rather, inapposite except as to relevant consideration of factors, some of which have been enumerated in that judgment.

The judgment in the case of Bhagwat Prasad Vs. State of U.P. and others is wholly distinguishable in as much as in the first place it had arisen under service jurisprudence. On the other hand there was no order of termination and therefore there was no relief of reinstatement or back-wages considered. That was a simple case of non-payment of salary on the principle of 'no work no pay'. The Court categorically found that work could not be performed by the petitioner because of the conduct of the respondents themselves in not making available any work to him by transferring him to such post where there was no work. The situation in the present case is wholly different and distinct. The petitioner's services were terminated by the bank. He was reinstated by this court with a liberty given to the bank to proceed against the petitioner, afresh. The judgment relied by learned counsel for the petitioner is wholly distinguishable.

Then, in the case of Tapash Kumar Paul (supra) again arising from the Industrial Tribunal, granted relief of reinstatement together with compensation Rs. 20,000/-, in lieu of back wages. This relief was maintained by the single judge of Calcutta High Court upon challenge made to the award, by the management. However, upon intra court appeal, the division bench of that court denied relief of reinstatement. The Supreme Court restored the judgment of the learned single Judge granting relief of reinstatement with payment of Rs. 20,000/- by way of compensation. The claim of back wages was not granted by the Supreme Court. Only compensation in lieu of back-wages, Rs. 20,000 was granted. Thus, this judgment is also wholly distinguishable.

The judgment in the case of State of U.P. Vs. Dayanand Chakrawarty (supra) is based on interpretation of law in the context of existing and governing service rules. No such pleadings have been raised in the present petition to warrant consideration of the petitioner's case on those lines. Also, in that case, it was the age of superannuation of the employees of the U.P. Jal Nigam that formed the subject matter of dispute and according to the petitioner he had been wrongly declared to have superannuated at the age of 58 whereas the correct age of superannuation applicable to him was 62. There were no disciplinary proceedings or suspension order in existence in that case. Therefore, the aforesaid judgment is also not applicable.

Last, in the case of State of U.P. Vs. Charan Singh (supra), upon Industrial Tribunal had granted relief of reinstatement without back-wages. Before the High Court, in proceedings initiated by the management it was claimed the workman was not entitled to back wages on principle of 'no work no pay'. However, the High Court held the workman entitled to entire back wages. In this background, the Supreme Court held as below:-

"17. Now, coming to the question of the entitlement of back wages to the respondent workman, the same is answered in the positive, in view of the fact that the workman had refused to accept the new job as fisherman which was offered to him pursuant to the Award passed by the Industrial Tribunal on the ground that the said post is not equivalent to the post of the Tube- well Operator. Even though the appellant had agreed to comply with the terms of the Award dated 24.02.1997 passed by the Industrial Tribunal and had offered reinstatement to him, it is well within the right of the workman to refuse the new job offered to him and the same cannot be said to be unjustified or erroneous on the part of the respondent-workman.

18. In the present case, there has been an absence of cogent evidence adduced on record by the appellant to justify the termination of the services of the respondent-workman, who has been aggrieved by the non-awarding of back wages from the date of termination till the date of passing the Award by the Industrial Tribunal. There is no justification for the Industrial Tribunal to deny the back wages for the said period without assigning any cogent and valid reasons. Therefore, the denial of back wages to the respondent even though the Industrial Tribunal has recorded its finding on the contentious question no.1 in the affirmative in his favour and in the absence of evidence of gainful employment of the respondent during the relevant period, amounts to arbitrary exercise of power by the Industrial Tribunal for no fault of the respondent and the same is contrary to law as laid down by this Court in a catena of cases. Hence, it is a fit case for this Court to exercise its power under Order XLI Rule 33 of the Civil Procedure Code, 1908, to award back wages to the respondent, even though the respondent has not filed a separate writ petition questioning that portion of the Award wherein no back wages were awarded to him by the Courts below for the relevant period. The respondent has got a right to place reliance upon the said provision of the Civil Procedure Code, 1908 and show to this Court that the findings recorded by both the Courts below in denying back wages for the relevant period of time in the impugned judgment and Award is bad in law as the same is not only erroneous but also error in law.

19. Therefore, in accordance with the power exercised by this Court under Order XLI Rule 33 of this Civil Procedure Code, 1908 and in the light of the judgment of this Court in Delhi Electric Supply Undertaking Vs. Basanti Devi and Anr. : (1999) 8 SCC 229, we hold that the State Government is liable to pay 50% of the back wages to the respondent from the date of his termination order dated 22.08.1975 till the date of the Award passed by the Industrial Tribunal, i.e. 24.02.1997.

20. The relevant paragraphs of the above referred judgment reads thus:

.............."

"21. ............22. 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."

(emphasis supplied)

After considering various other authorities on the issue and the contention of the workman in that case that the workman was entitled to full back wages, the Supreme Court then held the workman entitled to 50% back wages in the facts of that case.

On the other hand, the Supreme Court, in the case of Managing Director, U.P. Warehousing Corpn. v. Vijay Narayan Vajpayee reported in (1980) 3 SCC 459 held as below:-

"17. Further contention of the learned Counsel for the appellant is that even if the dismissal of the respondent was wrongful, the High Court could only quash the same, but it could not in the exercise of its certiorari jurisdiction under Article 226 of the Constitution give the further direction that the employee should be reinstated in service with full back wages. It is maintained that in giving this further direction, the High Court had overleaped the bounds of its jurisdiction.

18. ................... Thus, in matters of employment, while exercising its supervisory jurisdiction under Article 226 of the Constitution, over the orders and quasi-judicial proceeding of an administrative authority -- not being a proceeding under the Industrial/Labour Law before an Industrial/Labour Tribunal -- culminating in dismissal of the employee, the High Court should ordinarily, in the event of the dismissal being found illegal, simply quash the same and should not further give a positive direction for payment to the employee full back wages (although as a consequence of the annulment of the dismissal, the position as it obtained immediately before the dismissal is restored); such peculiar powers can properly be exercised in a case where the impugned adjudication or award has been given by an Industrial Tribunal or Labour Court. The instant case is not one under Industrial/ Labour Law. The respondent employee never raised an industrial dispute, nor invoked the jurisdiction of the Labour Court or the Industrial Tribunal. He directly moved the High Court for the exercise of its special jurisdiction under Article 226 of the Constitution for challenging the order of dismissal primarily on the ground that it was violative of the principles of natural justice which required that his public employment should not be terminated without giving him a due opportunity to defend himself and to rebut the charges against him. Furthermore, whether a workman or employee of a statutory authority should be reinstated in public employment with or without full back wages, is a question of fact depending on evidence to be produced before the tribunal. If after the termination of his employment the workman/ employee was gainfully employed elsewhere, that is one of the important factors to be considered in determining whether or not the reinstatement should be with full back wages and with continuity of employment. For these twofold reasons, we are of opinion that the High Court was in error in directing payment to the employee full back wages.

19. For the foregoing reasons while upholding the judgment of the High Court with regard to the quashing of the order of dismissal of the respondent on the ground of it being invalid, we delete the direction for payment to the respondent full back wages. Excepting this modification, the appeal is dismissed. However, in the circumstances, the appellant-Corporation shall pay the costs of the respondent in this Court."

(emphasis supplied)

In this case, in the first place it is clear that the writ court had not granted relief of back-wages but only granted the relief of reinstatement to the petitioner. Subsequently, after the petitioner filed a contempt petition, he was reinstated in service. Then, the petitioner filed another writ petition specifically claiming back wages. It was disposed of with a direction to the respondent bank to decide the petitioner's claim for payment of back wages. The bank first rejected it on account of another domestic inquiry being pending against him. Also, the bank sought a modification of the direction issued by this court to decide the petitioner's claim for back wages. After that application was allowed, the bank has again rejected the petitioner's claim for back wages for the reasons that he was dismissed from service consequent to his suspension and for the subsequent period on principle of 'no work no pay'.

The petitioner claims full back-wages as a natural consequential relief of reinstatement. Such a claim may be accepted only after examining other factors including whether the petitioner had been gainfully employed during the period for which he claims back wages. In this regard, it has been pleaded in the writ petition, in paragraph 29 that the petitioner could not get any job despite best efforts and that to meet his financial requirements and to educate his children he sold his agricultural land. No denial has been made to that pleading in the counter affidavit. Thus, it stands admitted on principle of non traverse that the petitioner could not secure any employment since his dismissal from the service for which reason he further claims to have sold his agricultural land to educate his children.

This apart, the dismissal order was clearly found to have been vitiated. It was set aside by this court and that judgment was challenged in Special Appeal, it has neither been set aside nor stayed. At the same time, for reasons best known to the bank, it did not complete the inquiry that the single judge of this court had permitted it to conduct. The said inquiry has according to the stand now taken by the bank been rendered impossible to conduct, as the bank chose to dismiss the petitioner in pursuance of another inquiry. The position that therefore emerges is that owing to the willful conduct of the bank, the charges levelled against the petitioner for which he was dismissed cannot now be proved as no inquiry can now be conducted with respect to the same.

In that view of the matter, on the one hand as urged by learned counsel for the bank, the petitioner has an alternative remedy available to him, to seek a fresh adjudication before the labour court with regard to his entitlement to back-wages and on the other hand it is undisputed that the petitioner was first dismissed from service which was held to be vitiated by this court. That order of dismissal order was set aside and matter remitted to the disciplinary authority. However, admittedly, the proceedings thus remitted have not been concluded. Non-conclusion of the domestic inquiry proceedings in remand occurred because the bank, in its discretion (and not on account of any compulsion of law or direction issued by this court), chose to first take up some other disciplinary proceeding against the petitioner and dismissed him from service in pursuance thereto. However, petitioner had never been suspended pending that inquiry.

The situation that then emerges is that the inquiry during which petitioner was suspended and later dismissed (which order was set aside by this court), itself was never concluded by the bank and has now been put in suspension. At the same time, the petitioner was never suspended during the proceedings in which the petitioner has been eventually dismissed from service.

Also, the petitioner has pleaded that though he had made efforts to seek alternative employment during the period of his termination, he could not secure any engagement. The said contention made in paragraph 29 of the writ petition has not been refuted by the bank inasmuch as the bank has only stated that the said contents are not concerned with it and as such they do not need any specific reply.

Then, admittedly, the petitioner had worked with the respondent bank for 22 years upto the date of his termination as also he remained out of work for 6 years for during which period he has clearly pleaded that he was not granted gainfully employment despite efforts which fact has not been disputed by the bank. Also, in support of his claim the petitioner has stated he sold his agricultural holding to meet expenses to educate his children.

Applying the principle laid down by the Supreme Court also to bring final end to the dispute and not to allow the litigation to protract any further, I consider it proper to award to the petitioner 25% back-wages for the period beginning for his dismissal from service to 11.05.2012.

The writ petition is party allowed.

Order Date :- 20.11.2017

A. Singh