Brajesh Kumar Shukla vs State Of U.P. And 2 Others
2018 Latest Caselaw 4012 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									           AFR
 

 
Court No. - 6
 

 
Case :- WRIT - A No. - 23170 of 2018
 

 
Petitioner :- Brajesh Kumar Shukla
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Dinesh Kumar Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Yashwant Varma, J.

Heard learned counsel for the petitioner and the learned Standing Counsel.

Although time had been granted earlier to the respondents to file an affidavit, no counter affidavit has been filed. However, bearing in mind that the issue raised in this petition is purely legal, the learned Standing Counsel has consented for the disposal of the writ petition on merits and in the absence of a counter affidavit.

This petition challenges an order dated 2 December 2017 in terms of which the claim of the petitioner for back wages consequent to an order of dismissal having been set aside by the Tribunal has come to be negatived.

The petitioner was dismissed from service on 3 February 2003. This order was affirmed by the Appellate Authority on 29 August 2003. Aggrieved by the same, the petitioner preferred a petition before the State Public Services Tribunal where it was registered as claim petition No. 1090 of 2003. This petition was allowed by the Tribunal in the following terms:

"In view of the above discussions, the claim petition is allowed. The impugned order of punishment of dismissal from service dated 3.2.03 as well as appellate order dated 29.8.03 contained as Annexure No. 1 and 18 respectively to the claim petition are hereby set aside. The Opposite Parties are directed to reinstate the petitioner in service forthwith with all consequential service benefits. Regarding back wages for the intervening period the disciplinary authority shall take appropriate decision in accordance with law." (emphasis supplied)

Since a decision with respect to back wages was left for the consideration of the Disciplinary Authority, the matter appears to have been examined by the SSP, Kanpur Nagar who has passed the impugned order. As is evident from a reading of the order impugned, the solitary ground on which the claim for back wages had been rejected is that the petitioner failed to produce any medical certificate which may have enabled the authority to treat the petitioner as being on medical leave during the period when the order of dismissal operated.

The line of reasoning which has been adopted by the said respondent is not only unsustainable but also clearly convoluted. It is not that the petitioner failed to discharge duties of his own volition. During the period in question, an order of dismissal operated. This order ceased to exist only when the Tribunal entered judgment and quashed the order of dismissal. In that backdrop, the respondent appears to have clearly misdirected the enquiry that was liable to be undertaken.

A prayer for back wages has to be necessary decided bearing in mind the following principles in mind. While it is true that jurisdiction, authority and discretion does exist in a Disciplinary Authority to consider whether full emoluments are liable to be paid for the period during which an order of dismissal operated and ultimately comes to be set aside by a Court or Tribunal, the seminal issue for consideration is whether in such a situation the principles of "no work no pay" can be imputed. The fact that the Disciplinary Authority has the jurisdiction to consider this aspect stands duly enshrined in the relevant service rules. This position is not disputed by the parties before this Court. This leaves the Court to only consider whether the principles of 'no work no pay' can have any application.

The answer in the considered view of this Court must necessarily be in the negative and against the respondents. The principle of 'no work no pay' stands attracted in a situation where an employee has refused to discharge duties of his own volition and without any restraint of the employer. It primarily applies to a situation where the employee consciously and voluntarily fails or refuses to discharge duties. This principle by its very inherent character can have only a limited application where an order of termination is permitted to operate.

An order of termination results in a severance of the master and servant relationship and till it continues to exist and operates, no right inheres in the officer or employee to compel the employer to permit him to discharge duties. Regard must also be had to the fact that the termination of employment is an act affected solely by the employer. This is, therefore, not a situation where the employee has failed to discharge duties without justifiable cause. It is only when the order of termination is set aside that the issue of discharge of duties by the officer or employee would arise.

In a short and succinct decision the Supreme Court in Shoba Ram Raturi Vs. Haryana Vidyut Prasaran Nigam Ltd and others1 has noticed this aspect in the following terms: -

"1. It is not a matter of dispute, that the appellant was retired from service on 31.12.2002, even though he would have, in the ordinary course, attained his date of retirement on superannuation, only on 31.12.2005. The appellant assailed the order of his retirement dated 31.12.2002 by filing writ petition no. 751 of 2003. The same was allowed by a learned Single Judge of the Punjab and Haryana High Court, on 14.09.2010. The operative part of the order is extracted here under: "Accordingly the present writ petition is allowed; order dated 31.12.2002 (Annexure P-4) is quashed. The petitioner would be treated to be in continuous service with all consequential benefits. However it is clarified that since the petitioner has not worked on the post maxim of "no work, no pay" shall apply and the consequential benefits shall only be determined towards terminal benefits. However there will be no order as to costs."

2. The denial of back wages to the appellant by the High Court vide its order dated 14.09.2010 was assailed by the appellant by filing Letters Patent Appeal No. 489 of 2011. The High Court rejected the claim of the appellant, while dismissing the Letters Patent Appeal on 26.5.2011. The orders dated 14.09.2010 and 26.5.2011 passed by the High Court limited to the issue of payment of back wages, are subject matter of challenge before this Court.

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".

4. For the reasons recorded hereinabove, we are satisfied, that the impugned order passed by the High Court, to the limited extend of denying wages to the appellant, for the period from 1.1.2003 to 31.12.2005 deserves to be set aside. The same is accordingly hereby set aside.

5. The appellant shall be paid wages for the above period within three months from today. His retiral benefits, if necessary, shall be re- calculated on the basis thereof, and shall be released to him within a further period of three months.

6. The instant appeal is allowed in the above terms."

The principle that needs recognition and reiteration is that the principle of 'no work no pay' cannot have an ipso facto or automatic application to a case of termination. Once the order of termination comes to be set aside by a Court or Tribunal, it is incumbent upon the Disciplinary Authority to take an informed decision with respect to the manner in which the period during which the order of termination operated would be liable to be treated. The decision to deprive an employee of emoluments and other benefits cannot be arrived at solely on the application of the principle of "no work no pay". While arriving at a decision in this respect, it would be incumbent upon the Disciplinary Authority to consider various factors such as the length of the period during which the order of termination operated, whether the enquiry proceedings were delayed on account of non cooperation of the employee concerned, the nature of the misconduct which is ultimately found to be proved, the severity of the punishment which comes to be imposed upon the original order of termination being modified or the grounds which led to the order of termination or punishment being set aside. The Disciplinary Authority would be acting within its jurisdiction in evaluating whether the punishment order was set aside on a technicality, an infraction of principles of fair play or on merits. There would thus have to be a holistic and comprehensive consideration of the above and other germane factors which would guide the ultimate decision that the Disciplinary Authority takes in this regard.

The Disciplinary Authority is also recognised in law to have the discretion to treat the period during which the order of termination operated either on full pay or such part thereof as may be considered appropriate. This again would warrant due application of mind and a consideration of the backdrop in which the order of punishment came to be imposed, the grounds which led to it being set aside, whether the employee was gainfully employed during this period and other relevant factors.

In the facts of the present case, the enquiry appears to have been clearly misdirected by placing the entire onus of establishing a right to claim back wages upon the petitioner and requiring him to lead evidence which may have entitled him to seek medical leave. Accordingly for the reasons aforementioned, this Court finds itself unable to sustain the order impugned.

The writ petition is allowed. The impugned order dated 2 December 2017 is quashed. The matter shall now stand remitted to the SSP Kanpur Nagar who shall proceed to take a decision afresh in light of the observations made hereinabove. This exercise shall be duly completed within a period of one month from the date of presentation of a certified copy of this order.

Order Date: - 28.11.2018

LA/-