Chattisgarh High Court
N.U. Khan vs State Of Chhattisgarh on 7 July, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Appeal No. 322 of 2020
N.U. Khan, S/o Shri Imdad Ullah Aged About 56 Years, R/o H-21, New
Pension Bada, Raipur, Chhattisgarh.
---- Appellant
Versus
1. State of Chhattisgarh Through The Secretary, Department of
Finance, New Mantralaya, Mahanadi Bhawan, Naya Raipur, District
Raipur, Chhattisgarh.
2. Director, Directorate Local Fund Audit, Block-1, Second Floor,
Indravati Bhavan, Naya Raipur, District Raipur, Chhattisgarh.
---- Respondents
(Cause-title taken from Case Information System)
For Appellant : Mr. Shantam Awasthi, Advocate.
For Respondents : Mr. Raghvendra Pradhan, Additional Advocate
General.
Hon'ble Shri Arup Kumar Goswami, Chief Justice
Hon'ble Shri Justice Parth Prateem Sahu, Judge
Judgment on Board
Per Arup Kumar Goswami, Chief Justice
07.07.2022
Heard Mr. Shantam Awasthi, learned counsel for the appellant. Also
heard Mr. Raghvendra Pradhan, learned Additional Advocate General,
appearing for the respondents.
2. The question which arises for consideration in this appeal, which is
filed against an order dated 13.03.2020 passed by the learned Single
Judge in Writ Petition (S) No. 7093 of 2017, is as to whether the learned
Single Judge has committed an error of law in not granting back-wages
while setting aside the order of compulsory retirement dated 05.09.2017,
though, observing that benefits shall be given to the petitioner by giving
him notional benefits and fixation.
3. No appeal has been preferred by the State challenging setting
aside of the order of compulsory retirement.
4. The learned Single Judge recorded a finding that in the past 9
years, Annual Confidential Report (ACR) reflected that the petitioner was
granted six "Very Good" and three "Good", which itself indicated that the
petitioner was a good worker. The petitioner, at no point of time, was
subjected to any departmental enquiry.
5. The reason assigned for passing the order for compulsory
retirement was 'public interest'. No material could be placed by the State
in support of the order of compulsory retirement.
6. Mr. Awasthi submits that no reasons have been assigned by the
learned Single Judge as to why the petitioner would not be entitled for
back-wages. He has cited the decision of the Hon'ble Supreme Court in
Shobha Ram Raturi v. Haryana Vidyut Prasaran Nigam Limited &
Others passed in Civil Appeal No. 11325 of 2011, which was also a
case of compulsory retirement, to contend that the petitioner is entitled to
back-wages. In the said case, the view taken by the High Court that the
principle of "no work, no pay" shall apply was rejected by the Hon'ble
Supreme Court and it was held that the fault lies with the respondents in
not having utilized the services of the appellant for the period from
01.01.2003 to 31.12.2005. It was further observed that having restrained
the petitioner from rendering his services with effect from 01.01.2003 and
31.12.2005, the respondents 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".
7. Mr. Pradhan has cited the decision of the Hon'ble Supreme Court in
the case of Rajasthan State Road Transport Corporation, Jaipur v. Phool
Chand (Dead) Through Legal Representatives , reported in (2018) 18
SCC 299. The facts of the aforesaid case, in short, are that the appellant
had dismissed the employee after holding departmental enquiry on the
ground of dereliction of duties on various occasions and the charge
against the deceased workman regarding his continuous absence from
the work was proved. The Labour Court converted the punishment of
removal from service to that of "stoppage/forfeit of four annual grade
increments without cumulative effect" and directed the reinstatement of
the deceased workman in service with award of full back-wages for the
period of 13 years (16.11.1983 to 24.02.1996). The challenge made
thereto, was negated by the High Court.
8. In the context of the above factual matrix, it was observed by the
Hon'ble Supreme Court that back-wages could not be awarded by the
Court as of right to the workman consequent upon setting aside of his
dismissal/termination order and that the employee had to plead and
prove with the aid of evidence that after his dismissal from service, he
was not gainfully employed anywhere and had no earning to maintain
himself or/and his family.
9. In the case of Deepali Gundu Surwase v. Kranti Junior
Adhyapak Mahavidyalaya (D.ED.) & Others , reported in (2013) 10 SCC
324, the Hon'ble Supreme Court at paragraphs 38.1 and 38.5 stated as
under:
"38.1. In cases of wrongful termination of service,
reinstatement with continuity of service and back wages
is the normal rule.
38.5. The cases in which the competent court or tribunal
finds that the employer has acted in gross violation of the
statutory provisions and/or the principles of natural
justice or is guilty of victimising the employee or
workman, then the court or tribunal concerned will be
fully justified in directing payment of full back wages. In
such cases, the superior courts should not exercise
power under Article 226 or 136 of the Constitution and
interfere with the award passed by the Labour Court, etc.
merely because there is a possibility of forming a
different opinion on the entitlement of the
employee/workman to get full back wages or the
employer's obligation to pay the same. The courts must
always keep in view that in the cases of wrongful/illegal
termination of service, the wrongdoer is the employer
and the sufferer is the employee/workman and there is
no justification to give a premium to the employer of his
wrongdoings by relieving him of the burden to pay to the
employee/workman his dues in the form of full back
wages."
10. Present is a case where the appellant was compulsory retired
arbitrarily without there being any semblance of material on record for
passing such an order. The appellant was unjustifiably prevented by the
employer from rendering his service and such action amounts to
victimisation of an employee.
11. In the facts and circumstances of the case and having regard to the
decisions of the Hon'ble Supreme Court in Shobha Ram Raturi (supra)
and Deepali Gundu Surwase (supra), we are of the opinion that the
order of the learned Single Judge so far as it relates to denial of back-
wages, requires interference.
12. Accordingly, it is directed that the appellant shall be paid his pay
and allowances from the period during which he was kept out of service.
The order of the learned Single Judge is modified to that extent.
13. The writ appeal is allowed. No cost.
Sd/- Sd/-
(Arup Kumar Goswami) (Parth Prateem Sahu)
Chief Justice Judge
Brijmohan
