Chhotelal Badriprasad Yadav vs Union Of India (Uoi) Thro' General ...
2006 Latest Caselaw 835 Bom

JUDGMENT

D.D. Sinha, J.

1. Heard Mr. R.S. Agrawal, learned Counsel for the petitioner and Ms. U.R. Tanna, learned Counsel for the respondents.

2. The instant writ petition is directed against the part of the order dated March 20, 1997 passed by the Central Administrative Tribunal, whereby the Original Application No. 1160/1993 filed by the petitioner against the order of termination though came to be allowed, back wages are not granted to the petitioner. The grievance made in the petition by the petitioner pertains to non-grant of back wages.

3. Learned Counsel for the petitioner has contended that in the instant case the petitioner was working as Monthly Rated Casual Labourer with the respondents since 1986. The service of the petitioner was terminated by the respondent by order dated April 3, 1993 on account of unauthorised absence from duty. On October 19, 1993 the petitioner filed above referred application before the Tribunal and by the impugned judgment and order dated March 20, 1997 the Tribunal allowed the original application, granted reinstatement of the petitioner with continuity in service but did not grant back wages. Hence, the petitioner has filed the present writ petition.

4. Learned Counsel for the petitioner has contended that in the impugned order there is observation made by the Tribunal in para 4 that the petitioner vide representation dated April 8, 1993 requested the D.E.O. Bhusawal to allow him to perform his duty, but without response. It is further contended that the petitioner was prohibited from performing his duty after the services of the petitioner were illegally terminated, and before he is reinstated therefore, in view of the decision of this Court in Progressive Education Society v. Nitin Krishnarao Nimbalkar and Ors. , the petitioner is entitled to back wages from the date of termination of his services till the date of reinstatement.

5. Learned Counsel for the respondents, on the other hand, contended that since the petitioner was granted continuity in service, denial of back wages by the Tribunal is justified, and therefore, the order impugned denying back wages is sustainable in law.

6. The learned Counsel for the respondents further contended that onus of proving that the employee was not gainfully employed after his termination till the date of reinstatement is on the said employee and in the instant case the petitioner has failed to discharge this burden, and therefore, he is not entitled for back wages.

7. In order to substantiate his contentions the learned Counsel for the respondents relied on the decision of the Apex Court in the case of Municipal Council, Sujanpur v. Surinder Kumar 2006-II-LLJ-768.

8. We have considered the contentions canvassed by the respective counsel of the parties and perused the decision rendered to and relied on by the respective counsel. The observations in para 4 of the impugned order demonstrate that the petitioner has made representation seeking permission to perform his duty during the relevant period. However, the respondents did not permit him to work during the said period on some excuse or the other, and therefore, it is the respondent who did not permit the petitioner to work during the relevant period. In the context of these facts, the law laid down by this Court in the case of Progressive Education Society v. Nitin Nimbalkar, (supra) is squarely applicable. The relevant observation in para 9 of the said case reads thus:

... It would evidently disclose that the employee was forbidden from performing and attending to his duties not on account of any mistake on the part of the employee but on account of unreasonable and arbitrary action on the part of the Management. In such circumstances, when the employee is forbidden from performing his duties for no fault on his part and entirely on account of arbitrary action on the part of the management, certainly the employee would be entitled for the entire back wages.

9. In the present case as we have already observed hereinabove that though the petitioner wanted to join the duty, was not permitted to do so, and therefore, the fault lies with the respondents for not permitting him to perform the duty, and therefore, they cannot deny back wages to the petitioner.

10. So far as the proposition of law laid down by the Apex Court in Municipal Council, Sujanpur v. Surinder Kumar, (supra) is concerned, there is no quarrel with the proposition that the onus always lies on the: employee to prove that he was not gainfully employed after his termination till the date of reinstatement. However, that contingency does not arise in the present case. On the other hand, the petitioner made representation to the respondents to permit him to perform the duty, and therefore, the law laid down by the Apex Court, in our view, does not support the case of the respondents.

11. We want to make it clear that in the present case back wages are granted in view of the peculiar facts, and therefore, observations made by us in the present decision are restricted to the case in hand only.

12. For the reasons stated hereinabove, the part of the impugned order denying the back wages to the petitioner is hereby quashed and set aside. The respondents are directed to pay back wages to the petitioner from the date of his termination till the date of reinstatement. The other findings recorded by the Tribunal in the impugned order are hereby confirmed.

13. Rule is made absolute in the above terms with no order as to costs.