Madras High Court
The Chairman vs Spurgeon Gnanamuthu on 5 October, 2021
Writ Appeal No.403 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.10.2021
CORAM :
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
Writ Appeal No.403 of 2018
1. The Chairman,
Puducherry Housing Board,
Anna Nagar, Nellithope,
Puducherry 605 005.
2. The Secretary,
Puducherry Housing Board,
Anna Nagar, Nellithope,
Puducherry 605 005. ... Appellants
vs.
1. Spurgeon Gnanamuthu
Financial Adviser & Chief Accounts Officer,
Puducherry Housing Board,
Anna Nagar, Nellithope,
Puducherry – 605 005.
2. The Secretary to Government (Housing),
Government of Puducherry,
Puducherry 605 001. ... Respondents
Writ Appeal filed under Clause 15 of Letters Patent against the order
dated 22.11.2016 passed by this Court in W.P.No.3268 of 2010.
Page No.1 of 15
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Writ Appeal No.403 of 2018
For Appellants : Mr.B.A.Sujay Prasanna
For 1st Respondent : Mr.Jayesh B.Dolia,
for M/s.Aiyar & Dolia
For 2nd Respondent : Service awaited
JUDGMENT
(Judgment of the Court delivered by S.VAIDYANATHAN,J.)
Challenging the order dated 22.11.2016 passed by the learned Single
Judge in W.P.No.3268 of 2010 in granting the relief of payment of 50% back
wages to the Writ Petitioner for the period from 05.02.2010 to 23.04.2017,
Puducherry Housing Board has come up with the present Writ Appeal.
2. It is seen that, the 1st Respondent/Writ Petitioner was terminated
from service by an order dated 05.02.2010 passed by the 1st Appellant and the
same was interfered with by this Court in W.P.No.3268 of 2010, by an order
dated 22.11.2016, on the ground that, procedures have not been followed.
Subsequent to the order passed by this Court, the Writ Petitioner was
reinstated into service on 23.04.2017. Since the order passed by the learned
Single Judge was not complied with in entirety by the Puducherry Housing
Board, the Writ Petitioner filed Contempt Petition No.2064 of 2017. The
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Writ Appeal No.403 of 2018
Respondent in the said Contempt Petition viz. P.Jawahar, I.A.S., has filed an
Affidavit to the following effect:
2. I respectfully state that,
(A) In the above order dated 22.11.2016, this
Hon'ble Court was pleased to direct the Chairman of
Puducherry Housing Board to (i) reinstate the
Petitioner in service, (ii) declare his probation and
(iii) calculate and pay 50% of the salary to him within
a period of 3 months from the date of receipt of a
copy of the order. Immediately, I, as the present
Chairman of Board have obeyed and complied with
the first two directions issued by this Hon'ble Court
and reinstated the Petitioner in service and also
declared his probation in the post of Financial
Advisor and Chief Accounts Officer.
(B) As per the third direction issued in the
order to pay 50% back wages to the Petitioner, the
Puducherry Housing Board has to pay a sum of
Rs.34,58,306/-. Out of the said amount, the Board
has paid (i) Rs.2,00,000/- to the Petitioner on
07.11.2017, (ii) Rs.2,00,000/- to the Petitioner on
16.01.2018 and (iii) Rs.2,00,000/- to the Petitioner on
30.01.2018, i.e. in total, Rs.6,00,000/- to him. I
hereby state that the Board shall pay the balance back
wages of Rs.28,58,306/- to the Petitioner within a
period of 8 weeks.
I, therefore, pray that, this Hon'ble Court may
be pleased to grant 8 weeks to the Board to pay the
balance back wages as per the orders of this Hon'ble
Court to the Petitioner and close the above Contempt
Petition and render justice.”
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Writ Appeal No.403 of 2018
3. In the above Affidavit, the Chairman of the Puducherry Housing
Board has agreed to pay the balance amount due to the 1st Respondent/Writ
Petitioner within a stipulated period.
4. It is stated by the Appellants that, the Writ Petitioner was
appointed in the post of Financial Adviser and Chief Accounts Officer in the
Puducherry Housing Board on purely temporary basis with effect from
17.05.1999 and from the said date, he was placed on probation for a period of
two years. He was terminated from service on 05.02.2010 in terms of Rule
5(1) of the Central Civil Services (Temporary Service) Rules, 1965.
Challenging the said order of termination, the 1st Respondent herein filed
W.P.No.3268 of 2010, and the same was allowed by this Court on
22.11.2016, setting aside the order of termination passed on 05.02.2010. As
per the directions of this Court, the 1st Respondent/Writ Petitioner's probation
was declared and he was reinstated into service.
5. As the 1st Respondent/Writ Petitioner himself has stated in the
Additional Affidavit dated 03.02.2018 filed by him, that, he was gainfully
employed as Controller of Finance in the Puducherry Co-op. Sugar Mills
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Writ Appeal No.403 of 2018
Limited, Puducherry from 12.04.2010 to 31.08.2012 and thereafter worked as
Manager in VCO Consultants & Services Pvt. Ltd., Bangalore from
01.06.2013 till 31.08.2016, the learned Single Judge has directed payment of
only 50% back wages to him.
6. Learned counsel for the Appellants submitted that, Puducherry
Housing Board is in doldrums and all its employees including the Chairman
and the Secretary of the Board are not paid salary from the year 2018. He
further stated that, assets of the Puducherry Housing Board worth Rs.40
crores are about to be sold, so that, loans, if any and terminal benefits due to
the employees, will be cleared. It is his contention that, even going by the
order of the learned Single Judge, the Writ Petitioner will be entitled to 50%
of the wages only for the period of non-employment, which will be less than
Rs.2 lakhs and that, all other amounts have already been paid.
7. According to the learned counsel for the Appellants, even
assuming that, the Writ Petitioner is entitled to claim 50% of the back wages
from the date of termination till the date of reinstatement, i.e. from
05.02.2010 to 23.04.2017, the salary drawn by him from 12.04.2010 to
31.08.2012 during his employment in Puducherry Co-op. Sugar Mills
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Writ Appeal No.403 of 2018
Limited, Puducherry and from 01.06.2013 till 31.08.2016 during his
employment in VCO Consultants & Services Pvt. Ltd., Bangalore, have to be
deducted from 50% of the back wages and only the remaining amount has to
be paid, otherwise, it will amount to payment of full wages. Learned counsel
contended that, a vague direction has been issued by the learned Single Judge
to pay 50% of the wages to the Writ Petitioner, without considering the fact
that, he was gainfully employed and hence, the same need to be interfered
with.
8. On the other hand, learned counsel appearing for the 1st
Respondent/Writ Petitioner contended that, when the 1st Respondent/Writ
Petitioner has been paid only 50% of the salary from the date of dismissal till
the date of reinstatement, the Appellants cannot give a different interpretation
to the order passed by the learned Single Judge. According to the learned
counsel, the contention of the Board that, the 1st Respondent/Writ Petitioner
will be entitled to 50% of the wages for a period less than 12 months, may
not be correct, as the Chairman of the Puducherry Housing Board, in his
Affidavit dated 16.02.2018 filed in the Contempt Petition, has clearly stated
that, the Board shall pay the remaining back wages to the tune of
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Writ Appeal No.403 of 2018
Rs.28,58,306/- to the Writ Petitioner within a period of eight weeks. Hence,
according to the learned counsel, the order of the learned Single Judge need
not be interfered with.
9. In reply, learned counsel for the Appellants submitted that, the
1st Respondent/Writ Petitioner was gainfully employed after dismissal from
the Puducherry Housing Board, and hence, he is not entitled for payment of
any amount as wages for that period. He went on to state that, as on date,
only a sum of Rs.2 lakhs is due to be paid to the 1st Respondent/Writ
Petitioner and emphasized that, from 2018 onwards, none of the employees
including the Officials of the Puducherry Housing Board were paid salary
since 2018, owing to financial constraints of the Board. He also stated that,
though the 1st Respondent/Writ Petitioner has been reinstated into service,
due to insufficient funds, he has not been paid wages for the service rendered
by him after the period of reinstatement.
10. To substantiate his stand, learned counsel for the Appellants
drew the attention of this Court to the decisions rendered by the Apex Court
in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) reported in (2013) 10 SCC 324 and in the case of
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Writ Appeal No.403 of 2018
Rajasthan State Road Transport Corporation, Jaipur vs. Phool Chand
(Dead) through Legal Representatives reported in (2018) 18 SCC 299.
11. Heard the learned counsel on either side and perused the
material documents available on record.
12. It is not in dispute that, the 1st Respondent/Writ Petitioner joined
the services of the Puducherry Housing Board as Financial Adviser and Chief
Accounts Officer w.e.f. 17.05.1999 and he was terminated from service on
05.02.2010. The said termination order was interfered with by this Court by
an order dated 22.11.2016 in Writ Petition No.3268 of 2010, which is the
subject matter of the present Writ Appeal.
13. The only issue raised by the Appellants is that, there are
financial constraints in the Puducherry Housing Board and that, barring
payment of a sum of Rs.2 lakhs, entire amount has been paid to the 1st
Respondent/Writ Petitioner.
14. A reading of paragraph 29(iv) of the order passed by the learned
Single Judge makes it clear that, the learned Single Judge has not specifically
stated that, the 1st Respondent/Writ Petitioner need not be paid wages during
the period of his gainful employment. However, the learned Single Judge has
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Writ Appeal No.403 of 2018
restricted payment of 50% of the wages to the 1st Respondent from the date of
his dismissal from service till the date of reinstatement and the same has been
rightly understood by the Board as could be seen in the Affidavit dated
16.02.2018 filed by the Chairman of the Puducherry Housing Board in
Contempt Petition No.2064 of 2017. Now, in the present Appeal, the
grievance of the Appellants is with regard to payment of arrears to the 1st
Respondent/Writ Petitioner. Even in the Grounds of Appeal, Appellants
have agreed to pay 25% to 50% of the salary payable to the 1st Respondent.
15. The decision relied on by the learned counsel for the Appellants
in Phool Chand case (supra) will not be applicable to the case on hand, as, in
that case, the Apex Court has held that, the initial burden is on the employee
to prove that, he was not gainfully employed anywhere and had no earnings
to maintain himself and his family. Thereafter, the burden shifts on the
employer to prove that, the employee was gainfully employed during the
relevant period. In the case on hand, the employee has put in black and white
that, he was gainfully employed after being terminated from service, and that
is the reason for restriction of payment of wages to 50% from the date of
dismissal till the date of reinstatement, by the learned Single Judge.
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Writ Appeal No.403 of 2018
16. As regards the other decision cited by the learned counsel for the
Appellants in the case of Deepali Gundu Surwase (supra), the Apex Court
has held that, denial of back wages would amount to indirectly punishing the
employee and rewarding the employer by relieving him of the obligation to
pay back wages. It went on to hold that, where the employer wants to deny
back wages or contest the employee's entitlement to get consequential
benefits, employer has to plea and prove that, the employee was gainfully
employed during the intervening period.
17. In the present case on hand, the employer/Puducherry Housing
Board has not discharged the obligation that, the burden has shifted on them.
The Board ought to have taken steps to establish that, the employee was
gainfully employed during the period of non-employment. Hence, the
decision rendered in the case of Deepali Gundu Surwase (supra) may also
not be applicable to the case on hand, moreso in the light of the Apex Court
decision in the case of Padma Sundara Rao Vs. State of Tamil Nadu,
reported in 2002 (3) SCC 533, wherein, it is held as under:
"9. Courts should not place reliance on decisions
without discussing as to how the factual situation fits in with
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Writ Appeal No.403 of 2018
the fact situation of the decision on which reliance is placed.
There is always peril in treating the words of a speech or
judgment as though they are words in a legislative enactment,
and it is to be remembered that judicial utterances are made
in the setting of the facts of a particular case, said Lord
Morris in Herrington Vs. British Railways Board (1972 (2)
WLR 537 = 1972 AC 877 (HL)). Circumstantial flexibility,
one additional or different fact may make a world of
difference between conclusions in two cases."
18. It is worth referring to the recent Apex Court decision in the
case of National Gandhi Museum vs. Sudhir Sharma (Civil Appeal
Nos.8215 – 8216 of 2011, dated 24.09.2021), wherein, it is held that, the
initial burden is on the employee to come out with a case that he was not
gainfully employed during the relevant period and thereafter, the burden
shifts on the employer.
19. In the case on hand, based on the undertaking given by the
Chairman of the Puducherry Housing Board in his Affidavit dated
16.02.2018 filed in Contempt Petition No.2064 of 2017 that, the Board shall
pay the remaining back wages of Rs.28,58,306/- to the Writ Petitioner within
a period of eight weeks, the said Contempt Petition was closed. While so, the
Board is trying to hoodwink not only the employee, but also the Court. The
conduct of the Puducherry Housing Board is deprecated.
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Writ Appeal No.403 of 2018
20. Earlier, a learned Senior Counsel represented the Puducherry
Housing Board and this Court suggested as to why a sum of Rs.10 lakhs need
not be be paid to the 1st Respondent/Writ Petitioner initially and that, the
matter could be adjudicated on merits. Though, detailed arguments have
been addressed by the learned Senior Counsel appearing for the Board and
we were about to pass orders, today, a new counsel represented that, he has
come on record for the Appellants, on change of Vakalat. Earlier, the learned
Senior Counsel for the Board addressed well and similar arguments were put
forth by the present counsel on record.
21. The order of the learned Single Judge does not call for any
interference, on merits and the same is confirmed. This Court makes it
clear that the balance amount due to the 1st Respondent/Writ Petitioner
shall be paid by the Appellants – Puducherry Housing Board within a
period of three months from the date of receipt of a copy of the
judgment. With regard to payment of wages after reinstatement of the
employee, it is made clear that, the 1st Respondent/Writ Petitioner shall be
treated on par with others and he shall be given priority in payment of wages,
and other employees shall be paid thereafter.
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Writ Appeal No.403 of 2018
With the above direction and observation, the Writ Appeal stands
dismissed. No costs.
[S.V.N.,J.] [A.A.N.,J.]
05.10.2021
Index : Yes/No
Speaking Order : Yes/No
(vm/aeb)
To:
1. The Secretary to Government (Housing),
Government of Puducherry,
Puducherry 605 001.
2. The Chairman,
Puducherry Housing Board,
Anna Nagar, Nellithope,
Puducherry 605 005.
3. The Secretary,
Puducherry Housing Board,
Anna Nagar, Nellithope,
Puducherry 605 005.
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Writ Appeal No.403 of 2018
S.VAIDYANATHAN,J.
AND
A.A.NAKKIRAN,J.
(aeb)
Judgment in
W.A.No.403 of 2018
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Writ Appeal No.403 of 2018
05.10.2021
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