Chattisgarh High Court
Ram Kumar Vishwakarma vs State Of Chhattisgarh on 13 July, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 435 of 2020
Ram Kumar Vishwakarma S/o Late Gopal Prasad Vishwakarma, Aged
About 59 Years R/o Sector-2, Block - Iii, Room No. 80, Kashiram Nagar,
Raipur, District - Raipur Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh, Through - The Secretary, Department of
Finance, Mantralaya Mahanadi Bhawan, Naya Raipur, District -
Raipur Chhattisgarh.
2. Director, Local Fund Audit, Directorate Block - I, Second Floor,
Indrawati Bhawan, Naya Raipur, District - Raipur Chhattisgarh.
3. Deputy Director, Local Fund Audit Jagdalpur, District - Jagdalpur
Chhattisgarh.
---- Respondents
(Cause-title taken from Case Information System)
For Appellant : Mr. Pawan Kesharwani, Advocate
For Respondents : Ms. Meena Shastri, Additional Advocate General
Hon'ble Shri Arup Kumar Goswami, Chief Justice
Hon'ble Shri Parth Prateem Sahu, Judge
Judgment on Board
Per Arup Kumar Goswami, Chief Justice
13.07.2022
Heard Mr. Pawan Kesharwani, learned counsel for the appellant.
Also heard Ms. Meena Shastri, learned Additional Advocate General,
appearing for the respondents.
2. The question which arises for consideration in this appeal, which is
filed against the order dated 08.11.2019 passed by the learned Single
Judge in WPS No. 4910 of 2017, is as to whether the learned Single Judge
has committed any 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 findings to the effect that none of
the Annual Confidential Reports (for short, 'ACRs') for the last 10 years
reflects any unsatisfactory performance on the part of the petitioner and
that integrity of the petitioner is also not considered to be doubtful. The
ACRs for the last 10 years as a whole is 'Good' and there had been no
adverse entries. The learned Single Judge also noted that the State had,
by Circular dated 25.04.2017, formulated 8 major conditions to be
considered for passing an order for compulsory retirement and none of the
conditions were considered by the respondents while considering the case
of the petitioner.
5. The reason assigned in the order of compulsory retirement was
"public interest".
6. Mr. Kesharwani relies on a 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. Ms. Shastri relies on a decision of the Hon'ble Supreme Court in
Gopal Dutt Shukla V. Bihar State Road Transport Corporation and
Others, reported in (2019) 13 SCC 323, to contend that in the aforesaid
case, on the ground that the appellant had not worked during the period he
was out of service, he was denied actual wages for the period he had
remained out of service while ordering the respondents to treat the service
of the appellant between the date of compulsory retirement and the date of
reinstatement as continuous for all other purposes.
8. A perusal of the said order would go to show that the order of the
compulsory retirement was passed as a major punishment, which is not the
case in the present case. In that view of the matter, the aforesaid judgment
has no application in the facts of the present cases.
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 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 for 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
Chandra
