Yogendra Nath Upadhaya vs State Of U.P.Thru. ...
2019 Latest Caselaw 5853 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 3
 

 
Case :- SERVICE BENCH No. - 20676 of 2018
 

 
Petitioner :- Yogendra Nath Upadhaya
 
Respondent :- State Of U.P.Thru. Secretary,Home Department, Lucknow & Ors.
 
Counsel for Petitioner :- Manish Misra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Hon'ble Saurabh Lavania,J.

Heard Sri Manish Misra, learned counsel for petitioner, learned State counsel and perused the record.

By means of present writ petition, the petitioner has challenged the judgment and order dated 17.05.2018 passed by State Public Service Tribunal, Lucknow (in short 'Tribunal') in claim Petition No. 2038/2014 (Yogendra Nath Upadhyay Vs. State of U.P. and others).

Facts in brief of the present case as submitted by learned counsel for petitioner are that petitioner was initially appointed on the post of constable in Civil Police, State of Uttar Pradesh. On 13.08.1987, he proceed for three days causal leave but could not resume the duty thereafter.

On 06.04.1989, a chargesheet was issued to petitioner for absence from duty to which he submitted reply. After considering the inquiry report submitted by the Inquiry Officer in the matter in issue, by order dated 03.07.1989, the petitioner was dismissed from services by an order dated 28.08.1989.

Aggrieved by the order of dismissal dated 28.08.1989, the petitioner filed the Claim Petition No. 78/T/1993 before the Tribunal. By order dated 27.07.1995, the Tribunal dismissed the claim petition.

Thereafter petitioner filed a review petition before the Tribunal. By an order dated 23.04.1996, the Tribunal allowed the review petition. The punishment of dismissal vide order dated 27.07.1995 was set aside vide order dated 23.04.1996. The Tribunal also directed to reinstate the petitioner with liberty to the authority to award punishment except punishment of dismissal or removal. Regarding back wages the liberty was also given to authority concerned to pass order as per law.

Order dated 23.04.1996 passed the Tribunal was challenged by respondent by filing Writ Petition No. 7540 (SS) of 1996 (State of U.P. and others Vs. Yogendra Nath Upadhya), which was dismissed by order dated 14.12.2010, relevant portion quoted as under:-

"We have heard the learned Standing Counsel who supported the order passed by the Tribunal dated 27.7.1995 and made a request to set aside the order passed in the review petition.

None appeared on behalf of the opposite-party.

From the record, it appears that this Court on 10th December, 1996 passed an interim order by which the contempt proceedings before the State Public Services Tribunal were stayed till the next date of listing. No interim order was passed towards the operation of the impugned order.

From the record, it appears that when there was no interim order passed by this Court, the opposite-party might have joined back his services in pursuance of the impugned order passed by the Tribunal as during the course of arguments, the learned Standing Counsel was unable to place the status report. The Tribunal has followed the ratio laid down by the Hon'ble Supreme Court (supra) and observed that the punishment of dismissal from service is too harsh for unauthorized absence. Thus liberty was granted to the petitioner to pass appropriate order as per law. Regarding back wages, again the liberty was granted to the petitioner to take decision as per law. As mentioned earlier, the learned Standing Counsel was unable to tell about the latest position in the case. If it is so, then we find no reason to interfere with the impugned order passed by the Tribunal in review petition which is hereby affirmed along with the reasons mentioned therein.

In view of above, the writ petition is dismissed"

After the order dated 14.12.2010 passed by this court, vide order dated 15.06.2012, the petitioner was reinstated in service, operative portion is quoted as under:-

" ??? ??? ??? ????????? ???? ??? ????? ??? ?????? ?????? -???/???? /???? (??) ?? -? / ?? ???????? ??? ???????? ???? ????? ?????? ????? ? ???? ??? ????? ?????? ???????? -??.??.?? ??? ?? ? ???? ???????? ???? ??? ??? ???? ??? ????? ??? ?????? ?????? -????/??(????) ????? ???? ???????? ??? ???????? ??? ????? ?????? ???????? -??.??.?? ?? ?????? ?? ??????? ??? ???? ???????? ??? ???????? ?? ????????? ?????? ?? ?????? ? ? ?? ? ?? ?? ?? ???????????? ???? ???? ??, ???? ????????? ??? ???????? ?? ?????? ?? ???? ?? ????? ?? ???? ?????? ??? ?? ??? ??? ?? ???? ????? ???? ??????.???? ???????? ??? ???????? ?? ?????? ?? ???? ?? ?? -????/???? ????? ??? ???? ."

Thereafter, another order dated 04.05.2013 was passed by Superintendent of Police, relevant portion is quoted as under:-

"???? ?? ???? ??? ???? ?????? ???????? ?????????? ????? ??? ?????????? ???? ??? ?????? ???? ???? ????? ?????? - ??.??.?? ??? ????? ?????? - ??.??.?? ?? ??.??.?? ?? ?? ???? ?? ?????? - ??.??.?? ?? ??.??.?? ?? ?? ???? ?????? ??? ??? ???? ???? ??? ???? ?? ??? ???? ?? ???? ?? ???? ???? ????? ???????? ???? ???? ?? "

Again, an order dated 04.05.2013 was passed by Superintendent of Police, Gonda, relevant portion is quoted hereinbelow:-

"????????? ?? ?? ???? ?? ???? ?????????? ???? ?? ??????? ?? ? ??? ????????? ??? ??????? ?????? ?????? -???/ ???? /???? (??)?? - ?/?? ????? ?? ?? ????? ?? ? ??? ????????? ?? ???? ?? ????? ?????????? ??? ???? ?? ???? ???? ?? ?????? ??? ??????? ????? ??? ?????? ??? ???? ??? ?? ??? ?? ?? ??? ??? ?? ?? ???? ??????? ?? ?????????? ?? ??? ?? ??? ??? ???? ??? ??? ??? ?????? ???? ?? ???? ?? ????? ???? ?? ??????? ?? ??? ????????? ???? ??????? ???? ??? ?? ???? ?? ???? ?????? - ??.??.?? ?? ??.??.?? ?? ??? ???? ???? ???? ?? ???????? ??? ?? ????? ???? ???? ?? ???? ?????? ???? ??? ? ?????? ??? ???? ?? ??? ??? ??????? ???? ??? ????????? ???? ???? ?? ???? ?????????? ???? ?? ???? ???? ?? ???? ???? ??? ? ???? ?? ???? ????? ???? ???? ?? "

Thereafter, the petitioner challenged both the orders i.e. orders dated 04.05.2013 and order dated 25.01.2014 before the Tribunal by filing Claim Petition No. 2038/2014 (Yogendra Nath Upadhyay Vs. State of U.P. and others).

After exchange of the pleadings, Tribunal vide order dated 17.05.2018 has dismissed the petitioner's claim petition, relevant portion is quoted as under:-

" ????? ???? ???? ?????????? ?? ?????? ???? ????? ??? ???? ??? ??? ???? ???? ??????? ????????? ????????? ?? ??? ?????? ?????? ???? ?????? ??? ???? ?? ??????? ?? ??? ????????? ????????? ?? ??? ???? ???? ?? | ????? ??? ??? ??? ???? ???? ?? ??????? ???? ??| ??? ???? ????????? ????????? ??? ??? ????? ???? ??? ?? ????? ?? ???? ?? ?? ??? -????? ???? ???? ??? ?????????? ??? ????? ??? ???? ??? ??? ???????? ???? ???? ?? ??? ??? ??? ????? ????? ?? ???? ?? ???? ?????????? ???? ?? ??? "??? ???? ?? ??? ????" ?? ???? ?? ???? ???? ????? ???????? ???? ??? ?? , ?? ???? ?????? ???? ?? ??? ?????? ???? ?? ?????????? ?? ?????? ?? ???????????? ???? ?? ?????? ?? ?? ???? ?? ???? ???? ???? ??? ? ???? ???? ?? ???? ?? ?????? ?? ????? ?????? ?????? ???? ?????????? ?? ??? ???? ???? ??? ?? ??? ????? ????? ?? ????????? ?????? ????? ???? ???? ??? ???? ?????? ?? ??????? ?? ???????? ???? ??|"

??????? ????? ?? ???? ????? ????? ?? ???? ?? ?????? ????? ???? ?? ???? ?????? ???? ???? ????? ??

Sri Manish Misra, learned counsel for petitioner while challenging the impugned order submits that when the order of dismissal of the petitioner has been set aside by the Tribunal vide order dated 23.04.1996 against which respondent has filed Writ Petition No. 7540 (SS) of 1996 (State of U.P. and others Vs. Yogendra Nath Upadhya), which was dismissed by order dated 14.12.2010, then the petitioner is entitled for salary for the total period of 8328 days keeping in view the fact that petitioner has not worked any where in the said period. In this regard, reliance has been placed by the petitioner in respect to the pleadings which has been taken by him before the Tribunal in paragraph No. 4.14 in claim petition.

Accordingly, it is submitted by learned counsel for petitioner that in view of the said fact, the Tribunal has erred in law while passing the impugned judgment thereby not granting the petitioner's salary for the period in question.

He further submits that once the order of dismissal has been set aside then in that circumstances the petitioner is also entitled for continuity of services along with other service benefits.

Learned State counsel while rebutting the contention of the petitioner submits that the Tribunal after taking into consideration the entire facts and circumstances as well as pleadings has rightly rejected the petitioner's claim as the petitioner has not worked for the said period, so he is not entitled for the salary in view of the principle of 'No Work No Pay', as such the writ petition lacks merit and is liable to be dismissed.

We have heard learned counsel for parties and gone through the record.

The core question which is to be considered in the present case is whether the petitioner is entitled for back-wages or not, or the principle which applied by the Tribunal 'No Work No Pay' in rejecting the petitioner's prayer for grant of back wages is correct or not?

So far as the matter in regard to payment of back wages of service is concerned, it is well settled principle in service jurisprudence that a person must be paid if he has worked and should not be paid if he has not. In other words, the doctrine of ''no work, no pay' is based on justice, equity and good conscience and in absence of valid reasons to the contrary, it should be applied. (See Sukhdeo Pandey v. Union of India, 2007 (7) SCC 455).

Hon'ble the Apex Court in the case of Commissioner, Karnataka Housing Board v. C. Muddaiah, 2007 (7) SCC 689, has held as under :-

"Even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case)."

Hon'ble the Apex Court in the case of Union of India v. B. M. Jha, 2007 (12) Scale 630 after placing the reliance on the earlier judgment given in the case of State of Haryana v. D. P. Gupta (1996) 7 SCC 533, A. K. Soumini v. State Bank of Travancore, 2003 (8) JT 35 and State of Andhra Pradesh v. K. V. L. Narasimha Rao, 1999 (3) JT 205 held that arrears of salary cannot be granted to the respondent in view of the principle of ''no work no pay' in case of retrospective promotion. (See Saran Kumar Gaur & Ors. v. State of Uttar Pradesh & Ors., 1991 (5) SLR 92).

Hon'ble the Apex Court in the case of Union Territory Chandigarh vs. Brijmohan Kaur 2007 (11) SCC 488 held as under :-

"The direction of the Tribunal which is affirmed by the High Court, in our view, is against the old canons of law directed by this Court. It is settled law that when an incumbent does not discharge any duty, the principle of ''no work no pay' would be applicable. This consistent view has been taken by this Court keeping in view the public interest that any government servant who does not discharge his duty should not be allowed to draw pay and allowances at the cost of public exchequer. (See Union of India (UQI) and Ors. vs. Vijay Pal Singh 2010 (12) SCC 737)."

Principle of ''no work no pay' has been recently reiterated by Hon'ble the Apex Court in the case of H. V. P. N. Limited and Ors. vs. Bal Govind (2017) 2 SCC 382.

Hence, there is no illegality or infirmity on the part of the Tribunal thereby not giving the back wages of service to the petitioner while passing the impugned judgment on the principle of "no work no pay".

Next point which has to be considered in the present case is whether after setting aside the order of dismissal by the Tribunal vide order dated 23.04.1996, and the same has been upheld vide order dated 14.12.2010 passed in Writ Petition No. 7540 (SS) of 1996 (State of U.P. and others Vs. Yogendra Nath Upadhya) by this Court, the petitioner is entitled for continuity of services and other service benefits or not.

From the perusal of the judgment and order dated 17.05.2018 passed by Tribunal in claim Petition No. 2038/2014 (Yogendra Nath Upadhyay Vs. State of U.P. and others) the position which emerged out is that the Tribunal has not given any adequate finding that under what circumstances the petitioner is not entitled for continuity of services and other service benefits rather on the point in issue the order in question is a non-speaking order and no reason has been given.

The aforesaid action on the part of Tribunal is not in accordance with law.

It is settled principle of law that the order passed by any Court, Tribunal or Authority should be speaking and reasoned order else would be unsustainable and liable to be interfered.

In Breen Vs. Amalgamated Engg. Union, reported in 1971(1) AIIER 1148, it was held that the giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. Vs. Crabtress, reported in 1974(4) IRC 120 (NIRC) it was observed that "failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at".

Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can be its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the later before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other worlds, a speaking out. The inscrutable face of the sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance."

In the present case, it is not disputed between the parties that the order of dismissal of the petitioner from service was set aside and he was reinstated vide order dated 15.06.2012 thereafter the orders were passed on 04.05.2013 & 25.01.2014 in respect to payment of backwages and the orders dated 04.05.2013 and 25.01.2014 were challenged by the petitioner by filing a claim petition and the Tribunal while dismissing the said claim petition has taken into consideration that in view of the principle of 'No work No Pay' the petitioner is not entitled for backwages, however as stated above no adequate finding has been given by the Tribunal that under what circumstances the petitioner is not entitled for continuity of services and other service benefits, so taking into consideration the said facts as well as the fact that once the order of dismissal has been set aside then in that circumstances the petitioner is entitled for continuity of services along with other service benefits.

For the foregoing reasons, the writ petition is partly allowed, judgment and order dated 17.05.2018 passed by State Public Service Commission, Lucknow in Claim Petition No. 2038/2014 (Yogendra Nath Upadhyay Vs. State of U.P. and others) passed by the Tribunal is set aside only to the extent it denies to the petitioner for continuity of services and other service benefits for which petitioner is entitled under law and opposite parties are directed to provide continuity of services and other service benefits for which petitioner is entitled under law. It is made clear that in view of findings recorded hereinabvoe the petitioner would not be entitled to back wages.

No order as to costs.

(Saurabh Lavania, J.) (Anil Kumar, J.)

Order Date :- 9.7.2019

Ravi/