Shri Ashwani Kumar vs Himachal Road Transport ...
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    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA




                                                                 .

                                               CWPOA No. 4261 of 2019
                                            Date of Decision: 19.9.2023
    _____________________________________________________________________





    Shri Ashwani Kumar
                                                                  .........Petitioner
                                    Versus
    Himachal Road Transport Corporation and Anr.
                                                               .......Respondents





    Coram
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting? Yes.
    For the Petitioner:
                     r    Mr. Manohar Lal Sharma, Advocate.

    For the respondents:      Mr. V.B. Verma, Advocate.
    ___________________________________________________________________________

    Sandeep Sharma, J. (Oral)

Being aggrieved and dissatisfied with order dated

3.3.2012, passed by the Managing Director, Himachal Road Transport

Corporation, whereby though petitioner came to be re-instated w.e.f.

16.6.2008, but as fresh entrant and has been not extended benefit

under the provision contained under FR 54-A(3), petitioner has

approached this Court in the instant proceedings, filed under Article

226 of the Constitution of India, praying therein for following reliefs:

"b. direction may kindly be issued to the respondents to grant benefit of FR 54-A(3) pay and allowances, seniority from the date of his initial appointment i.e. 10.11.1984 for the purposes of promotion and notional benefit of increments, pension etc. etc., as has been given to Shri Kishan Chand-II of Nahan Depot, within a reasonable period and also directed to pass a speaking and reasoned order, as required under law."

2. Precisely, the facts of the case as emerge from the record

.

are that petitioner herein was initially appointed as Conductor, in the

year, 1984 on daily wage basis but subsequently, his services were

regularized w.e.f. 25.1.1985. Vide order dated 27.1.1997, minor

penalty of stoppage of one increment came to be imposed upon the

petitioner on account of his having failed to give ticket to a traveler

despite having received payment. Aforesaid minor penalty was

subsequently reviewed vide order dated 21.2.1997, whereby appellate

authority imposed major penalty of dismissal on 7.2.1997. Being

aggrieved and dissatisfied with aforesaid penalty, petitioner filed

reference No. 83/1999 before the Industrial-cum-Labour Court, but

same was dismissed. Being aggrieved and dissatisfied with aforesaid

award passed by the Industrial Tribunal cum Labour Court, petitioner

filed CWP No. 1339 of 2006 in this Court, which came to be allowed

vide judgment dated 12.10.2007 (Annexure P-1). Vide aforesaid

judgment, this Court while setting aside the award dated 21.11.2006,

passed by the Industrial Tribunal-cum-Labour Court also set aside

order dated 7.2.1997, whereby petitioner was terminated from the

service. Court also directed the respondent to reinstate the petitioner

within thirty days from the receipt of the certified copy, however while

ordering reinstatement, court clarified that penalty of stoppage of one

increment for one year without cumulative effect as per order dated

27.1.1997 shall remain intact.

3. Being aggrieved and dissatisfied with aforesaid order,

.

respondent-HRTC filed LPA No. 188 of 2007, however same was

dismissed vide judgment dated 21.4.2008 (Annexure P-2). Now

though in terms of mandate contained in the judgment dated

12.10.2007, petitioner was reinstated in service, but w.e.f. 16.6.2008

(Annexure P-3A) and as such, petitioner again approached this Court

by way of CWP No. 2794 of 2009. Coordinate Bench of this Court vide

judgment dated 21.10.2011, allowed the aforesaid petition with the

direction to the Managing Director, HRTC, to consider the case of the

petitioner strictly as per FR54-A(3) within a period of two months from

the date of production of the certified copy of the judgment. In

compliance to the aforesaid mandate given by this Court, Managing

Director, HRTC after having afforded an opportunity of hearing to the

petitioner passed order dated 3.3.2012, whereby case of the petitioner

came to be considered afresh, but certainly not in terms of provisions

contained under FR54-A(3). In the aforesaid order, Managing Director,

Himachal Road Transport Corporation, cited reasons that since

petitioner never worked as Conductor during the period case remained

pending adjudication before the Industrial Tribunal cum Labour Court

and thereafter before the High Court, he cannot be granted benefit of

service from the date of his termination. In the aforesaid background,

petitioner has approached this Court in the instant proceedings.

4. Precisely, the grouse of the petitioner, as has been

.

highlighted in the petition and further canvassed by Mr. Shubham

Sood, learned counsel for the petitioner is that once coordinate Bench

of this Court vide judgment dated 21.10.2011, passed in CWP No.

2794 of 2009 had specifically ordered Managing Director, HRTC, to

consider the case of the petitioner as per FR54-A(3), there was no

occasion for the aforesaid authority to reject the case of the petitioner

on the ground that he has never worked against the post in question

while his case was pending adjudication before the Labour Court and

this Court respectively.

5. Mr. V.B. Verma, learned counsel for the respondent while

fairly admitting factum with regard to issuance of direction passed by

this court vide judgment dated 21.10.2011, stated that case of the

petitioner was required to be considered in terms of FR54-A(3), but

since it is not in dispute that petitioner never remained on the rolls of

the corporation from 7.2.1997 to 24.8.2000, no illegality can be said to

have been committed by the Managing Director, HRTC, while rejecting

the prayer made by the petitioner to count the aforesaid period while

granting him benefit of seniority and back wages, however, this court

is not impressed with the aforesaid submission of Mr. V.B. Verma,

learned counsel appearing for the respondent-corporation. Bare

perusal of FR54-A(3) clearly provides that if dismissal, removal or

compulsory retirement of a government servant is set aside by the

Court on the merits of the case, the period intervening between the

.

date of dismissal, removal or compulsory retirement including the

period of suspension shall be treated as duty for all purposes and

employee concerned shall be paid the full pay and allowances for the

period to which he/she would have been entitled, had he/she not been

dismissed, removed or compulsorily retired or suspended prior to such

dismissal, removal or compulsory retirement. Provisions contained in

FR54-A(3) read as under:

"FR 51-A(1)

(3) If dismissal, removal or compulsory retirement of a

government servant is set aside by the Court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement as the case may be and the date of reinstatement

shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal,

removal or compulsory retirement, as the case may be."

6. Since in the case at hand, it is not in dispute that order

thereby terminating the petitioner from service dated 17.2.1997 was

set-aside by this court while passing judgment dated 12.10.2007 in

CWP No. 1339 of 2006, which was further upheld in the LPA having

been filed by the respondent bearing LPA No. 188 of 2007, coupled

with the fact that specific direction was issued by the coordinate

Bench of this Court in judgment dated 21.10.20011 passed in CWP

No. 2794/2009 to consider the case of the petitioner in terms of FR54-

A(3), there was no occasion, if any, for the respondent-corporation to

reject the case of the petitioner on the grounds as detailed in the

.

impugned order dated 3.3.2012. Since competent court of law set-

aside the order of termination passed by the respondent as detailed

herein above, benefit of provision contained in FR54-A(3) is/was

required to be given to the petitioner. If it is so, he is entitled to all the

benefits qua the period, he remained out of service on account of

removal from the service. As has been noticed supra, as per provisions

contained under FR54-A(3), an employee, who subsequently, came to

be reinstated by the court order is entitled to be paid full pay and

allowance for a period, to which, otherwise, he would have been

entitled, had he not been dismissed/ removed or compulsory retired or

suspended prior to such dismissal, removal or compulsory retirement.

7. At this stage, Mr. V.B. Verma, learned counsel, invited

attention of this court to the judgment passed by the Hon'ble Apex

Court in CR No. 4330 of 2008, decided on 11.7.2008, titled State of

Maharashtra and Ors. v. Reshma Ramesh Mehar & Anr, to contend

that an employee cannot claim back wages qua the period, he/she

never worked against, however, having carefully perused the aforesaid

judgment this Court finds no applicability of the same in the instant

case, for the reason that in the aforesaid judgment, it has been not

categorically ruled that an employee, who is reinstated pursuant to

court order, shall not be eligible for back wages, rather in the aforesaid

case, Hon'ble Apex Court held that reinstatement may not necessarily

entail payment of full or partial back wages. In the instant case,

.

necessary direction was issued by this court in its order dated

21.10.2011 in CWP No. 2794 of 2009, having been filed by the

petitioner that the case of the petitioner shall be considered in terms of

provisions contained under FR54-A(3), which clearly provides that on

account of reinstatement of an employee pursuant to court order, all

benefits shall be payable for a period employee remained out of job on

account of dismissal/termination. At the cost of repetition, it may be

noticed that termination of the petitioner was set-aside by the

competent court of law and as such, benefit as available under FR54-

A(3) is required to be extended to the petitioner.

8. Consequently, in view of the detailed discussion made

herein above, this Court finds merit in the present petition and as

such, same is allowed and Annexure P-5 is quashed and set-aside and

respondent-corporation is directed to grant pay, allowance and

seniority to the petitioner from the date of his initial appointment.

Since petitioner is fighting for his rightful claim for years together, this

Court hopes and trusts that needful shall be done expeditiously,

preferably, within six weeks. In the aforesaid terms, present petition is

disposed of alongwith pending applications, if any.

    September 19, 2023                                   (Sandeep Sharma)
    manjit                                                     Judge