D.P. Tripathi vs State Of Chhattisgarh
2022 Latest Caselaw 6673 Chatt

                                       1



                                                            NAFR/AFR
               HIGH COURT OF CHHATTISGARH, BILASPUR

                             W.A.No. 47 of 2020
(Arising out of the order dated 23.10.2018 passed by the learned Single
                  Judge in Wri Petition (S) No.2272/2013)
     •     D.P. Tripathi S/o Late Onkar Prasad Tripathi Aged About 72
           Years Resident Of Bangali Para, Gali No. 4, Sarkanda, Police
           Station Sarkanda, Tehsil And District- Bilaspur Chhattisgarh,
           District : Bilaspur, Chhattisgarh
                                                          ---- Petitioner
                                       Versus
     1. State Of Chhattisgarh Through Secretary, Health And Family
           Welfare Department, Mantralaya Bhavan, New Raipur, Police
           Station Rakhi, District- Raipur Chhattisgarh, District : Raipur,
           Chhattisgarh
     2. Director Health Services Department, Mahanadi Bhavan, New
           Raipur, Police Station Rakhi, District- Raipur Chhattisgarh,
           District : Raipur, Chhattisgarh
     3. Joint Director Health Services Department, Bilaspur Division,
           Police Station Civil Lines, Tehsil And District-        Bilaspur
           Chhattisgarh, District : Bilaspur, Chhattisgarh
                                                         ---- Respondents
               (Cause title taken from Case Information System)

For Appellant           :Mr. Anoop Majumdar, Advocate.
For Respondents         :Mr. Gagan Tiwari, Government Advocate.


         Coram: Hon'ble Shri Arup Kumar Goswami, Chief Justice &
                   Hon'ble Shri Justice Sanjay Agrawal

                         Judgment / Order on Board
09.11.2022

Per Sanjay Agrawal, J.

1. This writ appeal has been preferred by the Writ Petitioner under

Section 2 (1) of the Chhattisgarh High Court (Appeal to the Division

Bench) Act, 2006, questioning the legality and propriety of the order

dated 23.10.2018 passed by the learned Single Judge in W.P.(S)

No.2272 of 2013, whereby, while allowing the petition in part, has

refused to grant him the back wages along with other allowances for the

period commencing with effect from the date of his dismissal upto the

date of his retirement.

2. Briefly stated the facts of the case are that the Appellant was

initially appointed as Lower Division Clerk under the Respondent

Authorities on 14.07.1961 and was, thereafter, promoted to the post of

Senior Accountant on 24.02.1988. He was, however, charge-sheeted

on 13.12.1989 wherein it has been alleged that he obtained the service

record unauthorizedly and tampered the date of birth while correcting

his date of birth of 01.01.1941 to that of 01.01.1943 in order to get

extension of two years more in service. In the departmental enquiry, the

charges levelled against him were found to be proved and accordingly,

he was terminated from the service on 10.08.1994, affirmed further by

the appellate authority vide its order dated 08.07.2013 in an appeal

preferred by the Appellant.

3. Being aggrieved with the aforesaid order of termination, the

Appellant has preferred a writ petition before this Court, wherein the

learned Single Judge vide order impugned has set aside the order of

dismissal as passed by the Respondent Authorities in the departmental

enquiry as they failed to produce any evidence in order to establish the

alleged charge so framed against him and that by applying the

principles of "No Work No Pay", it has been observed at para 17 as

under :-

"17. Since the petitioner was to retire as per his actual date of birth to be 01.01.1941 in the year 31.12.1998, applying the principles of No Work No Pay, this court is of the opinion that the petitioner would not be entitled for the wages and other allowances for the period between date of dismissal and the date of retirement."

4. In view of the aforesaid observation, the Appellant has been

denied the back wages and other allowances for the period

commencing with effect from the date of his dismissal upto the date of

his retirement and this part alone has been questioned by way of

preferring this appeal by the Appellant herein.

5. Learned counsel appearing for the Appellant submits that since

the charges levelled against the Appellant have been found to be not

proved and once the termination order has been held to be not in

accordance with law, therefore, under such circumstances, the learned

Single Judge ought to have granted him the back wages without

applying the principles of "No Work No Pay".

6. On the other hand, learned counsel appearing for the

Respondents/State, while opposing the aforesaid contention of the

Appellant, submits that since the Writ Petitioner has failed to plead in

his writ petition that he was not gainfully employed during that particular

period, therefore, although his dismissal from service was held to be

illegal, but in absence of such a plea, he is not entitled to get back

wages as prayed for. In support, he placed his reliance upon a

decision rendered by the Supreme Court in the matter of

J.K.Synthetics Ltd. vs. K.P.Agrawal and another, reported in (2007) 2

SCC 433.

7. We have heard learned counsel for the parties and perused the

entire record carefully.

8. From perusal of the record, it appears that although the alleged

order of Appellant's dismissal from service was held to be illegal as

passed in a departmental enquiry but from a bare perusal of the

averments made in the writ petition, it is seen that the petitioner did not

plead that he was not gainfully employed from the date of his

termination. In view thereof, he is not entitled to get the back wages

and other allowances as prayed for, in view of the principles laid down

by the Supreme Court in the matter of J.K.Synthetics Ltd. vs.

K.P.Agrawal and another (supra) wherein it has been held at

paragraphs 17 & 18 as under :-

"17. There is also a misconception that whenever reinstatement is directed, "continuity of service" and "consequential benefits" should follow, as a matter of course. The disastrous effect of granting several promotions as a "consequential benefit" to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualised while granting consequential benefits automatically. Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether "continuity of service" and/or "consequential benefits" should also be directed. We may in this behalf refer to the decisions of this Court in A.P.SRTC v. S. Narsagoud (2003) 2 SCC 212, A.P.SRTC v. Abdul Kareem (2005) 6 SCC 36 and Rajasthan SRTC v. Shyam Bihari Lal Gupta (2005) 7 SCC 406.

18. Coming back to the back wages, even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned in G.M Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591 and U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey (2006) 1 SCC 479. Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no

obligation on the terminated employee to search for or secure alternative employment. Be that as it may."

(emphsis ours)

9. Similar is the view taken by the Supreme Court in the matter of

Deepali Gundu Surwase vs. Kranti Junior Adhyapak

Mahavidyalaya, reported in (2013) 10 SCC 324, wherein it has been

held at para 38.3 as under :-

"38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments."

10. In view of the aforesaid settled principles of law, it was, thus,

necessary for the Appellant to plead in the petition that he was not

gainfully employed during the period of his termination. He, however,

failed to make such an averment in the petition. In absence thereof, the

Appellant has, therefore, rightly been held to be not entitled to get the

back wages and other allowances for the period commencing with effect

from the date of his termination till the date of his retirement.

11. In view of the aforesaid background, the appeal, being devoid of

merit, is accordingly dismissed.

No order as to costs.

                       Sd/-                                 Sd/-
               (Arup Kumar Goswami)                   (Sanjay Agrawal)
                   Chief Justice                           Judge




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