Ranveri Devi vs State Of U.P.Thru ...
2022 Latest Caselaw 12920 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 3
 

 
Case :- WRIT - A No. - 10020 of 2016
 

 
Petitioner :- Ranveri Devi
 
Respondent :- State Of U.P.Thru Prin.Secy.Cooperative Civil Sectt.Lko.Andors
 
Counsel for Petitioner :- Avinash Chandra,Jyotiresh Pandey,Narendra Shanker Shukla,Sachin Garg,Sukumar Srivastava
 
Counsel for Respondent :- C.S.C.,Rakesh Kumar Chaudhary
 

 
Hon'ble Rajan Roy,J.

The petitioner is permitted to correct the details of the array of opposite party no. 4 in the array of parties.

As, Shri Chaudhary represents the newly designated 'Sangh' also, therefore, there is no need to issue any notice to it, especially as the said opposite party no. 4 has already filed counter affidavit and is represented through its Counsel.

Heard.

The petitioner is the widow of Late Shyam Veer Singh who died on 14.08.2013 i.e. barely one month and few days after passing of the punishment order. He died on account of illness. The petitioner, her widow, has challenged the punishment order and sought consequential relief of entire salary of her husband for the period he was kept out of service by illegal and arbitrary order passed by the opposite parties i.e. for the period 07.05.2003 to 15.10.2012.

The facts of the case in brief are that the petitioner's husband, Late Shyam Veer Singh, was working on a clerical post under the opposite parties no. 2 to 4, having been initially appointed in the year 1994. Charge sheet was issued to him on 11.09.2002 to which he submitted his reply on 26.10.2002. An inquiry is said to have been conducted. Ultimately, the proceedings resulted in his dismissal from service vide order dated 07.05.2003. Late Shyam Veer Singh challenged his dismissal by filing Writ Petition No. 4577 (S/S) of 2003. The said dismissal order was set aside vide judgment dated 25.09.2012 while allowing the said petition, however, opposite parties were directed to proceed with the inquiry against him from the stage of filing reply to the charge sheet and to pass appropriate orders in accordance with law, after giving opportunity to the petitioner to participate in the inquiry. The petitioner was ordered to be reinstated in service but the back wages would depend upon outcome of the fresh inquiry. A copy of the said judgment is annexed as Annexure No. - 20 to the writ petition. The aforesaid petition of Late Shyam Veer Singh was allowed on the ground that proper hearing opportunity was not given to him before dismissing him from service.

Proceedings were held afresh, a fact which is not in dispute and it resulted in an order of punishment dated 08.07.2003, annexed as Annexure No. - 1A to the petition. By the said order, Late Shyam Veer Singh, was held to be accountable for loss of Rs. 8,814/- which was ordered to be recovered from him. A special adverse entry was given. Apart from it, it was also ordered that the remaining salary/allowances for the period of suspension would not be payable. The period of suspension was ordered to be treated as in service. However, this latter part relating to the period of suspension was modified by the subsequent order dated 05.02.2014 which was passed after the death of Shyam Veer Singh. The necessity for passing this order arose, as, Late Shyam Veer Singh, was never placed under suspension with respect to these proceedings till his dismissal from service.

Accordingly, by the modified order dated 05.02.2014, the salary and allowances which would otherwise have been payable to Late Shyam Veer Singh for the period 07.05.2003 to 15.10.2012 during which he was under dismissal were held as not payable. It is this order dated 05.02.2014 which is under challenge, meaning thereby, only part of the punishment order dated 08.07.2013 as modified on 05.02.2014 is under challenge by which the salary and allowances for the period Late Shyam Veer Singh was out of service on account of the operation of the dismissal order has been challenged. In pursuance to the judgment of the Court dated 25.09.2012, petitioner was reinstated in service and continued to work till his death on 14.08.2013.

The contention of learned Counsel for the petitioner is that the initial termination was apparently bad in law. It was set aside by the Court in the earlier round of litigation on the ground of non-provision of adequate opportunity to defend and when the fresh inquiry was held, the opposite parties themselves found that it was not a case for dismissal from service, therefore apparently, Late Shyam Veer Singh was kept out of service illegally, as, the charges even if they were found true would only entail a minor punishment, as has been imposed subsequently. In this view of the matter, the petitioner's Counsel contends that full back wages be ordered to be paid to the widow who has challenged the same.

Shri R.K. Chaudhary, learned Counsel for the contesting opposite parties contends he remained out of service and did not actually work and was found guilty, therefore, on the principal of 'No work, No pay', no back wages are payable.

With respect, the contention of Shri R.K. Chaudhary is not acceptable. The principle of 'No work, No Pay' does not come into play where the employee was prevented from working by any action of the employer himself, especially in a case where the said action was found to be illegal, as was found by this Court vide judgment dated 25.09.2012 rendered in Writ Petition No. 4577 (S/S) of 2003 filed by Late Shyam Veer Singh earlier. Moreover, when fresh inquiry was held by the opposite parties, they themselves did not find it to be a case for removal or dismissal of Late Shyam Veer Singh from service and all that the fresh proceedings resulted in was a minor punishment of recovery of Rs. 8,814/- and a special adverse entry. As, the special adverse entry is not specifically under challenge before this Court, therefore, this Court does not enter into the validity of the said order to this extent, however, it is constrained to observe that a punishment not provided in the Rules could not have been provided. There is nothing on record to show that special adverse entry is a punishment prescribed but the Court leaves this issue at that.

Considering the facts of this case, although Late Shyam Veer Singh was found guilty but he was only found guilty of a minor misdemeanor which has resulted in a minor punishment. Had the proceedings been held appropriately in the first round itself, his services would not have been terminated and if a minor punishment had been imposed upon him way back in 2003 then he would have remained in service for the period he was made to sit out because of his illegal dismissal from service.

In these circumstances, the Court is of the opinion that back wages are liable to be paid, the only question is as to what percentage of it should be paid considering the fact that Late Shyam Veer Singh actually did not work for the period in question though he was not responsible for this and it is the opposite parties who kept him out of service, illegally so.

Balancing the equities between the parties, considering the facts of the case, in the opinion of the Court, 50% of the salary and allowances which would have been paid to Late Shyam Veer Singh had he been in service for the period 07.05.2003 till his reinstatement in October, 2012 along with revision of pay, as and when it fell due, would be payable to the petitioner, his widow. If any selection grade, time scale etc. became payable during this period then the claim would be considered accordingly separately and a decision shall be taken in this regard within three months. Consequential pecuniary benefits shall also be paid to the petitioner accordingly.

The opposite party no. 4 shall comply this order and dues shall be paid as aforesaid within three months.

The writ petition is allowed in the aforesaid terms.

Order Date :- 14.9.2022

Lokesh Kumar