Shareefa & Others vs State Of J&K & Ors
2023 Latest Caselaw 1061 j&K/2

                                                             Item No.11
                                                             Regular List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR

                           SWP No.1888/2016
SHAREEFA & OTHERS                                   ...PETITIONER(s)
             Through:     Ms. Asma Rashid, Advocate.

V/s

STATE OF J&K & ORS.                             ...RESPONDENT(S)

             Through:     Mr. Shakir Haqani, Advocate.

CORAM:HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                           (ORDER)(ORAL)
                              31.08.2023

1. The original petitioner challenged order issued by respondent No.3

under endorsement No. JKSRTC/EC-IV/658 dated 05.09.2016 to the

extent it provides that the period of his service between 21.08.1987 to

22.07.1999 has to be treated as 'no work no wages'. The original petitioner

has also sought a direction upon the respondents to sanction and release

wages/salary in his favour against the post of Conductor for the aforesaid

period.

2. The facts which emerge from the pleadings of the parties are that

on 21.08.1987, the original petitioner, who was working as a Conductor

with the respondent Corporation, was placed under suspension on the

charge that 22 passengers were found travelling without tickets in the bus

in which he was performing his duties as a Conductor on Anantnag-

Chattergul road. An order of termination bearing No. J&KSRTC/EC-

IV/259 dated 1st June, 1998 was issued by the respondent Corporation

thereby terminating services of the original petitioner. The said order

came to be challenged by the original petitioner by way of a writ petition

bearing SWP No.269/1991. Vide order dated 18.12.1997, the aforesaid

writ petition came to be disposed of with the following directions:

"That the respondents are given an opportunity to hold a fresh enquiry into the matter and such enquiry shall be initiated within six weeks from the date of judgment. In case the enquiry is not initiated within the stipulated time, the writ petitioner shall be taken into service. The petitioner be associated with such enquiry and be afforded reasonable opportunity of being heard. He be allowed to produce the evidence, if he desires so, then appropriate orders be passed by the Corporation express expeditiously."

3. Pursuant to the aforesaid directions of the Court, an enquiry was

conducted by the respondent Corporation in respect of the charges levelled

against the original petitioner wherein he was exonerated. Accordingly,

order No.JKSRTC/EC-IV/1607-10 dated 22.07.1999 was issued by

respondent No. 2, whereby the original petitioner was reinstated in service

prospectively without any past service benefits. It was further provided

that the period from 20.08.1987 to the date of aforesaid order shall be

treated as dies-non.

4. The aforesaid order was challenged by the original petitioner by

way of another writ petition bearing SWP No.1317/2004. The aforesaid

writ petition was disposed of by this Court in terms of order dated

02.12.2015. The relevant excerpts of the said order are reproduced as

under:

"it appears that the respondents have no addressed the issue of settling the service benefits/ wages for the period the petitioner was out of service in view of the

termination order i.e. with effect from 21st August, 1987 till 22nd July, 1999 in a routine manner and while quoting wrong facts the period has been treated as dies-non. The order clearly suffers from non-application of mind; it is that position which perhaps has prompted the learned counsel for the respondents to make a submission that the respondent authorities to that extent will pass fresh orders.

In view of the reasons and observations made hereinabove, the order impugned dated 22nd July, 1999, is set aside only to the extent of prospective reinstatement and without any past service benefit. The period from 21st August, 1987, till the date of issue of the order treated as dies-non is also quashed. Respondent authorities shall within four weeks pass fresh orders regarding the wages for the period with effect from 21st August, 1987 to 22nd July, 1999 and settle all claims of the petitioner."

5. Pursuant to the aforesaid order of this Court, impugned order dated

05.09.2016 has been issued by respondent No.3, wherein it has been

observed that the petitioner has not performed any kind of duty with effect

from 21.08.1987 to 22.07.1999, as such, he is not entitled to wages for the

aforesaid period and also for the reason that financial health of the

respondent Corporation is poor. However, in terms of the impugned

order, the aforesaid period has not been treated as break in service of the

original petitioner.

6. Heard and considered.

7. The short point which is required to be determined is as to what is

the purport of order dated 02.12.2015 and whether or not the impugned

order issued by the respondent Corporation is in tune with the said order.

8. A plain reading of order dated 02.12.2015 passed in SWP

No.1317/2004, which is the basis of the impugned order, would reveal

that the Court has observed that the respondents while issuing earlier order

dated 22nd July, 1999 did not address the issue of service benefits/wages

for the period the original petitioner was out of service in view of the

termination order. The said period is from 21.08.1987, when the original

petitioner was terminated from service till 22.07.1999, when he was

reinstated in service. The Court has, in the operative portion of the order,

quashed three directions forming part of order dated 22.07.1999. These

three directions relate to prospective reinstatement of the original

petitioner, his past service benefits and the direction relating to dies-non,

meaning thereby that the Court has nullified the direction regarding

prospective reinstatement of the petitioner which, in other words, means

that the original petitioner had to be reinstated with retrospective effect.

The direction regarding denial of past service benefits has also been

quashed, meaning thereby that the petitioner has to be paid the past service

benefits. The direction regarding treatment of the period of service of

original petitioner between termination and his reinstatement as dies-non

has also been quashed.

9. The impugned order, so far as it directs that the intervening period

between 21.08.1987 to 22.07.1999 would not be treated as a break in

service of the original petitioner, is concerned, the same is in consonance

with the directions of this Court passed in SWP No.1317/2004 because it

takes care of the direction regarding quashment of treating the aforesaid

period as dies-non. However, as per the impugned order, the petitioner

been denied the benefit of wages for the aforesaid period. The same is in

contravention with the direction regarding quashment of denial of past

service benefits. The impugned order to this extent is not sustainable in

law as it contravenes the judgment/order dated 02.12.2015 passed by this

Court in SWP No.1317/2015.

10. Learned counsel for the respondents has submitted that an order of

reinstatement in service does not automatically mean payment of back

wages. In this regard, the learned counsel has relied upon judgment of the

Supreme Court in the case of Ramesh Chand vs. Management of Delhi

Transport Corporation, 2023 LiveLaw (SC) 503.

11. There can be no quarrel with the proposition of law put forth by

learned counsel for the respondents but, as has been held by the Supreme

Court, in Ramesh Chand's case (supra), it all depends on facts and

circumstances of the case whether in a peculiar case, back wages should

be paid or not. In the instant case, there is a specific direction from this

Court in the earlier round of litigation between the parties whereby denial

of past service benefits to the original petitioner has been quashed. The

Court has also quashed the prospective reinstatement, meaning thereby

that the original petitioner is entitled to retrospective reinstatement. In

view of this position, the respondent Corporation had no option but to

allow the benefit of retrospective reinstatement as well as past service

benefits that would include payment of back wages to the original

petitioner. The impugned order to the extent it denies past service benefit

to the original petitioner is not sustainable in law.

12. Accordingly, the writ petition is allowed and the impugned order to

the extent it denies past service benefits including the wages for the period

between 21.08.1987 to 22.07.1999 is quashed and the respondents are

directed to pay wages/salary and other service benefits to the petitioners

forthwith for the aforesaid period.

(SANJAY DHAR) JUDGE Srinagar 31.08.2023 "Bhat Altaf, PS"