Rajasthan High Court

Ms. Rajkumari D/O Shri Surajmal ... vs State Of Rajasthan ... on 4 October, 2023

Bench: Manindra Mohan Shrivastava, Praveer Bhatnagar

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

               D.B. Special Appeal Writ No. 1573/2019

Ms. Rajkumari D/o Shri Surajmal Malawat, Aged About 52 Years,
Resident Of Sub Centre Kannoj, Kekri, Ajmer.
                                                                        ----Appellant
                                       Versus
1.       State Of Rajasthan, Through Principal Secretary to the
         Government,             Medical        And        Health       Department,
         Government Of Rajasthan, Secretariat, Jaipur.
2.       Director, Medical & Health Services, Government Of
         Rajasthan, Swasthya Bhawan, C-Scheme, Jaipur.
3.       Joint Director (Administration), Medical & Health Services,
         Government Of Rajasthan, Swasthya Bhawan, C-Scheme,
         Jaipur.
                                                                     ----Respondents

For Appellant(s)             :     Mr. H.V. Nandwana
                                   Mr. YV Nandwana
                                   Mr. P.C. Sharma
For Respondent(s)            :     Mr. Harshal Tholia
                                   Mr. Avinas Choudhary for
                                   Mr. V.B. Sharma, AAG

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

Judgment / Order

04/10/2023

Heard.

This appeal is directed against the order dated 19.08.2019

passed by the learned Single Judge only to the extent the learned

Single Judge has not granted back wages from the date of

termination till the date of reinstatement.

Relying upon the Hon'ble Supreme Court decision in the case

of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak

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Mahavidyalya (D.ED.) and Ors. : (2013) 10 Supreme Court Cases

324, learned counsel for the appellant would submit that once the

order of termination/dismissal is illegal entitling reinstatement,

grant of back wages is a normal rule and the Court may be

required to consider this aspect upon taking into consideration

various relevant factors as stated in para 38 of the decision of the

Hon'ble Supreme Court in the case of Deepali Gundu Surwase Vs.

Kranti Junior Adhyapak Mahavidyalya (D.ED.) and Ors. He would

submit that the appellant is a low paid employee and belonging to

Scheduled Caste. Termination from service was founded on an

allegation of misconduct and the learned Single Judge recorded a

finding that the date on which appellant solemnized second

marriage, specific provision of misconduct was not incorporated in

the rule. The rule specifying second marriage as a misconduct was

incorporated after the date of solemnization of marriage.

Therefore, present is not a case where the reinstatement was

ordered considering the order of punishment as disproportionate

or on the ground of violation of principles of natural justice but on

the ground that no charge-sheet could be issued to the appellant.

Learned counsel for the appellant would further submit that the

appellant's conduct in engaging second marriage was based on

prevalent form of dissolution of marriage with the first husband

and therefore, it cannot be said that the appellant's conduct was

such which amounted to misconduct. Therefore, it is prayed that

back wages for the period, during which the appellant remained

out of service, be awarded.

On the other hand, learned counsel for the respondents

would submit that the learned Single Judge after taking into

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consideration the entire aspects of the matter was of the view that

in the circumstances of the case, though consequential benefits of

all other forms were entitled to be extended, the payment of

actual wages was not granted. He would submit that present is a

case where the appellant was alleged to have contracted second

marriage. Even if it may not amount to specific misconduct under

the service rules, the appellant being in government service was

expected to avoid acting in a manner which was unbecoming of a

government servant.

Relying upon decision of the Hon'ble Supreme Court in the

case of Chief Regional Manager, United India Insurance Company

Limited Vs. Siraj Uddin Khan, he would submit that in any case, an

inquiry would be necessary to find out whether the appellant was

gainfully employed during the period she was out of employment.

As the appellant has not stated in the writ petition that after

termination she was not engaged anywhere, in the absence of a

proper inquiry, the appellant could not claim entire back wages as

a matter of course.

We have heard learned counsel for the parties and perused

the record.

Disciplinary action was initiated on an allegation of

misconduct on the ground that the appellant contracted second

marriage during subsistence of first marriage. Appellant's stand

was that a prevalent form of dissolution of marriage with the first

husband was followed and only thereafter, second marriage was

contracted. Learned Single Judge was of the view that the rule

which was alleged to be violated and made basis to allege

misconduct, was not in force on the date of contracting second

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marriage. The order dismissing appellant from service was set

aside on the ground that there was no misconduct at all. It is not

a case where the allegations were grave in nature but because of

some technical flaw, the order of termination dismissal was found

unsustainable in law. It is also not a case where the appellant was

granted relief only on the ground that proper opportunity of

hearing was not afforded. Therefore, the appellant's conduct itself

having not been found to be one amounting to misconduct under

the service rules, the learned Single Judge had set aside the order

of dismissal.

The appellant belongs to Scheduled Caste. She was a low

paid employee. Further, the appellant acted promptly. After the

order of dismissal was passed on 18.09.2012, she preferred

departmental appeal which was dismissed on 19.12.2014.

Immediately, thereafter, she filed writ petition which came to be

decided in her favour on 19.08.2019. Therefore, the appellant

cannot be blamed for delay, if any, in decision of the case.

Hon'ble Supreme Court in the case of Deepali Gundu

Surwase Vs. Kranti Junior Adhyapak Mahavidyalya (D.ED.) and

Ors., after taking into consideration several decisions on the issue

of back wages, summarized law as below:

"38. The propositions which can be culled out from the aforementioned judgments are: 38.1 In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of

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the employer and similar other factors.

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.

38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.

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 victimizing 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

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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 sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrong doings by relieving him of the burden to pay to the employee/workman his dues in the form of fullback wages.

38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalized. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à- vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees.

38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."

The principles which have been laid down herein if applied to

the present case, we find that subject to the condition that the

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appellant was not gainfully employed, the appellant would be

entitled to full back wages.

Reliance placed on the decision of Hon'ble Supreme Court in

the case of Chief Regional Manager, United India Insurance

Company Limited Vs. Siraj Uddin Khan is misconceived on facts.

Their Lordship of the Hon'ble Supreme Court noted the

distinguishing feature of that case while considering whether the

principles laid down in the case of Deepali Gundu Surwase Vs.

Kranti Junior Adhyapak Mahavidyalya (D.ED.) and Ors. could be

applied. It was observed thus:

"16. We may notice some of the judgments of this Court where issue of back wages has been considered by this Court. This Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mhavidyalaya (D.Ed.) And Others, (2013) 10 SCC 324 was considering a case where the question was considered as to whether the appellant was entitled to wages for the period she was kept out of service forcibly by the management of school. In paragraph No. 22, following was laid down:-

"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life.

At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant

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statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."

17. We may hasten to add that present is not a case where respondent was kept away from the work on account of dismissal. Admittedly, the respondent attained the age of retirement on 20.06.2012 and order terminating his services was passed only on 26.06.2012, which was rightly held to be ineffective."

That was a case where the employee had continued in

service and the order of penalty came to be passed only after he

attained the age of superannuation. Therefore, in the peculiar

circumstances of that case, Hon'ble Supreme Court was of the

view that the learned Single Judge having itself not recommend

the entitlement of the employee to receive salary after 14.05.2009

to 20.06.2012 (the period of unauthorized absence) it ought to

have directed the employee to consider entitlement and take a

decision.

In view of the principles which have been laid down in the

case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak

Mahavidyalya (D.ED.) and Ors., and taking into consideration