M. Ravinder Rao vs Government Of A.P., Rep By ...
2022 Latest Caselaw 1791 Tel

            HONOURABLE SRI JUSTICE P.NAVEEN RAO
                             &
            HONOURABLE DR. JUSTICE G.RADHA RANI


                 WRIT PETITION NO.26693 OF 2003

                         Date: 08.04.2022

Between:

M.Ravinder Rao s/o. Bhim Rao, Aged about 40 years,
Ex-Superintendent, Sub-Jail, Jagatial,
Karimnagar.

                                                       ..... Petitioner
           and

Government of A.P., rep.by its Secretary,
Home (Prisons) Department, Secretariat Building,
Hyderabad and others.

                                                     .....Respondents

The Court made the following:

PNR,J & Dr.GRR,J WP No.26693 of 2003

HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE DR. JUSTICE G.RADHA RANI

WRIT PETITION NO.26693 OF 2003

ORDER: (per Hon'ble Sri Justice P.Naveen Rao)

Petitioner recruited as Deputy Jailor and joined service on

01.04.1986. On 04.07.1995 he applied to grant leave on health

grounds. By proceedings dated 11.07.1995, leave was sanctioned from

12.07.1995 to 31.07.1995. After expiry of leave, petitioner claimed to

have applied for extension of leave. The submission of application for

extension of leave and not granting leave are the sticky issues, on which

the subsequent proceedings were set in motion. On 21.08.1995 charge

memo was drawn and issued alleging that petitioner unauthorizedly

absent from duty without prior sanction of leave. It is alleged that

petitioner did not respond to the said charge memo.

2. On 11.12.1995 show-cause notice was issued narrating the

events leading to the said show-cause notice and holding that he was

found to be unauthorizedly absent for the period beyond 31.07.1995,

disciplinary authority proposed to impose punishment of dismissal from

service and called upon his explanation as to why said punishment

should not be imposed. In response to this show-cause notice, by

representation dated 01.01.1996, while explaining reasons for his

absence beyond 31.07.1995, petitioner also stated that he applied for PNR,J & Dr.GRR,J WP No.26693 of 2003

extension of leave, that as his application for extension was not

rejected, he assumed that leave was sanctioned and therefore it cannot

be called as unauthorized absence. Though explanation was brief, he

also sought two documents shown therein and requested additional

time after the documents were supplied for more detailed explanation.

According to the respondents, by letter dated 07.03.1996, documents

sought by the petitioner were supplied, but he did not furnish further

explanation. Having waited for considerable time, by orders dated

09.05.1996, order of dismissal from service was imposed. Appeal

preferred by the petitioner was rejected by the appellate authority on

29.03.1997. The revision dated 07.07.1997 preferred before the

Government is not acted upon by the Government.

3. In those circumstances, petitioner filed O.A.No.2116 of 2001

before the A.P.Administrative Tribunal. The Tribunal dismissed the said

O.A., holding that as petitioner was unauthorizedly absent, and did not

respond to the notices issued, the order of dismissal was validly passed.

Further, since petitioner did not participate in the departmental

proceedings, there was no need to supply copy of the report of the

Enquiry Officer and that there was no violation of provisions of the

Telangana State Civil Service (Classification, Control and Appeal) Rules,

1991 (for short, 'Rules, 1991') and accordingly affirmed the punishment

imposed.

PNR,J & Dr.GRR,J WP No.26693 of 2003

4. Heard learned senior counsel Sri V.Ravi Kiran Rao for the

petitioner and the learned Special Government Pleader for Home for

respondents.

5. Learned senior counsel for petitioner made the following

submissions:

(i) Since leave was sanctioned from 12.07.1995 to 31.07.1995

and petitioner applied for extension of leave, when extension application

was not rejected and no memo was issued to the petitioner to join back

to the duty, his absence after 31.07.1997 cannot be said as

unauthorized.

(ii) Once decision was taken to initiate disciplinary action and

more so, when disciplinary authority intend to impose major

punishment of dismissal from service, procedure required by Rule 20 of

the Rules, 1991 has to be strictly followed, even if no explanation is

offered by the petitioner. Rule 20(5)(b) mandates conducting enquiry

into the allegations of misconduct. In the instant case, no enquiry was

conducted and there was no report of enquiry holding charge as proved.

(iii) He submits that the disciplinary authority cannot presume

that the charge of unauthorized absence is deemed to have been

established merely because petitioner did not respond to charge memo

without even conducting enquiry and on the assumption/presumption

disciplinary authority cannot hold petitioner guilty of misconduct.

PNR,J & Dr.GRR,J WP No.26693 of 2003

(iv) He further submits that though petitioner raised several

grounds, appellate authority has not dealt with the grounds urged in

the appeal and without assigning reasons rejected the appeal and,

therefore, the order of appellate authority is also liable to be set aside

on that ground alone.

(v) He further submits that Article 311 of the Constitution of

India safeguards a permanent employee against being removed or

dismissed from service without following due procedure. It is not a case

of not reasonably practicable to hold enquiry to dispense with

conducting of enquiry to dismiss the Officer on the allegation of

unauthorized absence for few weeks.

(vi) He submits that there is clear violation of procedural

requirements in imposing punishment at every stage vitiating the

disciplinary action.

6.1. According to the learned Special Government Pleader, after

completion of leave period, on 02.08.1995 telegram was sent to the

petitioner directing him to report to duty. This telegram was returned

saying that the addressee was not living in the village. Notices sent to

the said address in the village were also returned un-served. According

to the learned Special Government Pleader, telegram and notices were

sent to the address available with the Department, but later

conveniently petitioner has shown different address in his further PNR,J & Dr.GRR,J WP No.26693 of 2003

correspondence. This would show that he deliberately and wilfully

avoided receiving the telegram and notices and remained

unauthorizedly absent till charge memo was drawn and subsequently

also. Therefore, his conduct in not reporting to duty after expiry of

leave, not responding to the telegram and notices, would amount to

deliberate and wilful disobedience of the orders of the superior authority

and wilful and deliberate unauthorized absence. Leave granted to him

expired on 31.07.1995 and since no leave was granted for subsequent

period, it was mandatory for him to report to duty and subject himself

to medical examination and then only he could have asked for extension

of leave.

6.2. Learned Special Government Pleader though fairly submits that

the procedure prescribed by Rule 20 was not observed, but the conduct

of the employee is also relevant to consider and in the facts of the case,

when it is glaring that he remained unauthorizedly absent after expiry

of leave period, the conclusion arrived at by the disciplinary authority

cannot be faulted.

6.3. He would submit that even assuming that disciplinary action is

vitiated due to non-compliance of procedural requirements, ordinarily

the matter should be remitted to conduct disciplinary proceedings. At

any rate, while granting relief the aspect of petitioner deliberately not

acknowledging the notices and deliberately not reporting to duty after PNR,J & Dr.GRR,J WP No.26693 of 2003

expiry of leave, require consideration to assess the conduct of the

petitioner.

6.4. He would submit that the petitioner has rendered only short

service before he was removed from service. Therefore, he is not

entitled to back-wages. In support of his contention, learned Special

Government Pleader placed reliance on the decisions of Hon'ble

Supreme Court in Allahabad Bank and others Vs. Krishan Pal

Singh1 and Pradeep Vs. Manganese Ore (India) Limited and others2.

7. We have gone through the record placed before us. From the

material on record it is seen that by proceedings dated 11.07.1995,

leave for 20 days was granted, which expired on 31.07.1995. As can be

seen from the letter addressed by the District Sub-Jails Officer,

Karimnagar to the Superintendent of Osmania General Hospital,

Hyderabad on 07.11.1995, petitioner applied for extension of leave

initially upto 31.08.1995 and later further period upto 31.10.1995. The

District Sub-Jails Officer entertained a doubt whether leave sought by

the Officer can be considered as the total period of Commuted Leave on

medical grounds exceeded 90 days. He therefore requested the

Superintendent of Osmania General Hospital to examine the petitioner

on his health status and furnish his opinion. Further, Superintendent

of Osmania General Hospital issued letter dated 18.11.1995 to the

2021 SCC ONLINE SC 751

[Civil Appeal No.7607 of 2021 (arising out of SLP (C) No.21346 of 2017)].

PNR,J & Dr.GRR,J WP No.26693 of 2003

petitioner directing him to appear before the Medical Board on

30.11.1995.

8. While on the one hand, immediate superior officer was directing

the petitioner to subject himself to medical examination to consider his

application to extend leave, within few days from the date of alleged

absence from duty, a charge memo was drawn alleging unauthorized

absence. No reasons are assigned why this course was adopted even in

the counter-affidavit. It is also interesting to notice that even after the

show-cause notice issued proposing to dismiss the petitioner from

service, the District Sub-Jails Officer vide his letter dated 16.04.1996

requested the Superintendent of Osmania General Hospital to inform

what happened on the medical examination aspect of the petitioner and

if no medical examination was conducted to examine the petitioner and

furnish his opinion. In response to this, the Superintendent has issued

letter dated 03/04.05.1996 calling upon the petitioner to appear before

the Medical Board on 15.05.1996. That being so, on 09.05.1996 the

order of dismissal from service was passed.

9. In the instant case, Court noticed serious infirmities, which

vitiate the entire disciplinary proceedings leading to punishment of

dismissal from service, as noted hereunder:

(i) As rightly contended by the learned senior counsel for

petitioner, whenever a decision is taken by the disciplinary authority to

conduct disciplinary action, which may result in imposing a major PNR,J & Dr.GRR,J WP No.26693 of 2003

punishment, Rule 20 of the Rules require observance of detailed

procedure. Rule 20 opens with "No order imposing any of the penalties

specified in clause (vi) to (x) of Rule 9 shall be made except after an

inquiry held, as far as may be, in the manner provided in this Rule and

Rule 21". Punishment of dismissal from service is specified in Rule

9(x). According to sub-rule (5), if no written statement is submitted by

the delinquent employee, the disciplinary authority can enquire into

articles of charge or he may appoint an enquiry officer to conduct

enquiry as specified in Rule 20. Sub-rule (6) also deals with the

situation where the delinquent employee does not participate in the

enquiry and authorizes the disciplinary authority to conduct ex parte

enquiry. Thus, even if employee did not offer his explanation to charge

memo and/or did not participate in the enquiry, it is mandatory to

conduct enquiry, as required by Rule 20, into allegations of misconduct,

more particularly when the disciplinary action would result in imposing

punishment of dismissal from service.

(ii) After enquiry is completed, as required by Rule 21, report of

enquiry officer has to be furnished to the delinquent employee, call for

explanation and on due consideration of the explanation, if any offered,

final order of punishment can be passed. No enquiry was conducted.

On the ground that employee did not submit explanation, the

disciplinary authority holds petitioner guilty of unauthorized absence PNR,J & Dr.GRR,J WP No.26693 of 2003

and straight away decided to dismiss him from service and post-

decision, calls for his explanation.

(iii) It is settled principle of law that mere absence from duty

does not per se amount to a major misconduct unless it is held as

deliberate and wilful absenteeism, more particularly for a long period or

frequent absenteeism. Therefore, the disciplinary authority requires to

go into the aspects as to why and in what circumstances employee was

absent, whether explanation offered by the delinquent employee is

satisfactory, whether the delinquent employee is in the habit of

frequently absenting from duty and whether the absence is for a shorter

period or a longer period. Depending on the finding recorded in the

departmental proceedings on the nature and period of absence, it is for

the disciplinary authority to impose appropriate punishment ranging

from censure to that of dismissal from service. Therefore, the basic

requirement for the disciplinary authority to take final decision to

impose appropriate punishment is finding of fact on the allegation of

unauthorized absence.

(iv) In the instant case, charge memo was drawn on 21.08.1995

by which date his application to extend leave was pending. Even before,

his application for extension was considered and rejected asking him to

attend to duties disciplinary authority could not have assumed that

petitioner was unauthorizedly absent; then hold him guilty and decide

to impose major punishment of dismissal from service. He has not even PNR,J & Dr.GRR,J WP No.26693 of 2003

consulted the Unit Head before taking such a drastic measure. Though

it is asserted by learned Special Government Pleader that a telegram

was issued directing petitioner to resume duty, but it was not served on

him. It appears, no further steps were taken before initiating

disciplinary proceedings.

(v) Even though delinquent employee did not respond to the

charge memo, but fact remains that in response to the final notice

issued by the disciplinary authority on 07.12.1995, petitioner

submitted his explanation briefly explaining the reasons for absence,

while requesting to supply two documents and also requesting to

provide some more time to file a detailed explanation. He has also

pointed out that his absence after 31.07.1995 was on health grounds,

that he applied for extension of leave and his applications were not

rejected. Therefore, this particular piece of explanation offered by him

was crucial to assess whether the absence of employee after 31.07.1995

was deliberate and wilful. In the final order, there was no discussion on

the explanation offered by the petitioner. There was no discussion on

the decision of the Unit Head dated 07.11.1995 and 16.04.1996 to

subject the petitioner to medical examination.

(vi) The Unit Head thought it fit to refer the petitioner for medical

examination vide his letters dated 07.11.1995 and 16.04.1996. Two

aspects can be noticed from this development. First, apparently Unit

Head was concerned about health of petitioner and views his absence PNR,J & Dr.GRR,J WP No.26693 of 2003

as not deliberate or wilful and second, this step was taken second time

after the show-cause notice dated 11.12.1995, the brief explanation of

petitioner dated 01.01.1996 and before order dated 09.05.1996

imposing punishment of dismissal from service. The immediate

superior authority is the best person to assess the conduct of an

Officer/employee and his inputs would aid the disciplinary authority to

take a decision. It is not on record whether Unit Head brought to the

notice of disciplinary authority these aspects or the disciplinary

authority sought inputs of Unit Head. Keeping a blind eye on these

aspects, the Disciplinary Authority has already decided to dismiss the

petitioner. Order of dismissal was passed even before petitioner was

subjected to undergo medical examination on 15.5.1996. It is also

apparent from this that whether absence of petitioner was deliberate

and wilful was not established. Petitioner's absence could have been

termed as deliberate and wilful if in the medical examination, it was

established that he was not suffering from serious ailment. It is

interesting to note that in the order of dismissal, there is discussion on

applications made by petitioner for extension of leave and the decision

of Unit Head to refer petitioner for medical examination.

(vii) Decision of Appellate Authority is vitiated on several counts:

(1) Though petitioner raised several grounds in his appeal

petition, the appellate authority failed to consider any of the grounds

and simply affirmed the decision of the disciplinary authority. Rule 37 PNR,J & Dr.GRR,J WP No.26693 of 2003

of the Rules require 'consideration of the appeal', which imply

consideration of grounds urged and taking a decision. Width of

consideration is elaborated in Sub-Rule 2. Sub-rule (2) requires

appellate authority to consider, (a) whether the procedure laid down in

these rules has been complied with and if not, whether such non-

compliance has resulted in the violation of any provisions of the

Constitution of India or in failure of justice; (b) whether the findings of

the disciplinary authority are warranted by the evidence on record; and

(c) whether the penalty or the enhanced penalty imposed is adequate,

inadequate or severe and pass orders.

(2) As against this mandate, the order of appellate authority is

cryptic and simply affirmed the decision of the disciplinary authority.

The relevant portion of the order dated 29.03.2007 reads as under:

"I have gone through the appeal and relevant records. I do not find any reasons to interfere with the action of Deputy Inspector General of Prisons (Telangana Region), Hyderabad. Hence the appeal is rejected".

(3) Thus, order of the appellate authority is not in compliance

with the requirements of Rule 37 of the Rules, 1991, besides being non-

compliance of the basic requirement of consideration of the grounds

raised in the statutory appeal before affirming an order of dismissal

from service.

PNR,J & Dr.GRR,J WP No.26693 of 2003

(viii) The petitioner being Government employee, he has the

protection of Article 311 of the Constitution of India. Article 311

mandates that no permanent employee can be dismissed from service

without following due process. Exceptions carved out in the second

proviso to clause-2 are attracted if those conditions are fulfilled. In the

case on hand, on the allegation of absence of the petitioner from duty

for a short period, the question of 'not reasonably practicable to conduct

enquiry' as required by clause (b) of second proviso to Article 311 (2) of

the Constitution of India, is not attracted.

(ix) The letter dated 07.11.1995 of the Unit Head shows that

petitioner had applied for extension of leave. It is not the case of

respondents that his leave applications were rejected and petitioner was

asked to join duty. On the contrary, immediate superior authority

entertained a doubt whether leave on medical grounds beyond 90 days

can be granted and sought for opinion on health status. Therefore, it

cannot be said that absence was without application for extension of

leave on health grounds and wilful and deliberate.

(x) In response to the averments made in paragraphs 11 to 14

of the affidavit filed by the petitioner, the deponent to the counter-

affidavit states that even though petitioner was asked to undergo

medical examination and even after he received notices, he did not

appear before the Medical Board. This statement clearly points out that

the disciplinary authority was aware that petitioner was directed to be PNR,J & Dr.GRR,J WP No.26693 of 2003

examined about his health condition by the Medical Board, but

strangely simultaneously disciplinary proceedings were pursued and

even before the petitioner was to undergo medical examination, the

order of dismissal from service was passed.

(xi) Final nail in the coffin is, the manner in which disciplinary

action was handled. It smacks of arbitrary exercise of power and

authority, vindictive and shows total non-application of mind.

10. From the above analysis, it is palpable that the decision making

process to visit on the employee the punishment of dismissal from

services is per se vitiated.

11. No employee can remain absent from duty without permission. He

can absent from duty only by submitting leave application and only

after leave is sanctioned. Without prior intimation and sanction of leave,

if employee does not attend to duties, such absence may be treated as

unauthorised, may amount to misconduct and warrant disciplinary

action. However, gravity of misconduct depends on period of absence

and conduct of employee. Different yardsticks may apply if absence was

in continuation to sanctioned leave. Thus, mere absence from duty

does not automatically amount to grave misconduct. Only if absence is

wilful, deliberate and without any justification, it would be a grave

misconduct. Thus, it is necessary for the disciplinary authority to find

out first whether the absence was deliberate and wilful. For this, PNR,J & Dr.GRR,J WP No.26693 of 2003

enquiry is necessary. If the absence was proved to be deliberate and

wilful, the next question is what punishment can be imposed. On a

proved allegation of unauthorized absence punishment may vary

depending on various aspects.

12. "Extent of penalty depends upon the nature of service, the

position held by the employee, the period of absence and the cause/

explanation for the absence." [Paragraph-14, STATE OF PUNJAB Vs

P.L.SINGLA : (2008) 8 SCC 469)]. "Unauthorized absence cannot be put

in straitjacket formula for imposing punishment. It will depend upon

many a factor as has been laid down in P.L.Singla" (Paragraph-27,

CHENNAI METROPOLITAN WATER SUPPLY AND SEWERAGE BOARD AND

OTHERS Vs T.T.MURALI BABU- [(2014) 4 SCC 108].

13. There is no discussion in the order of punishment as to the

conduct of petitioner prior to initiation of disciplinary proceedings

resulting in imposing punishment of removal, nor there any discussion

on endeavour made to secure the presence of employee and despite

repeated instructions to attend to duty, the employee refused to resume

his work. It is not alleged that petitioner was in the habit of absenting

from duty. It is also not placed on record that he was indulging in

misconduct earlier and was imposed punishments. Perforce, application

of mind to the issue and taking conscious decision is paramount. The

same is palpably missing. The whole exercise appears as vindictive.

PNR,J & Dr.GRR,J WP No.26693 of 2003

The action taken was on a petty misconduct and appears to be a

camouflage to throw the petitioner out of employment.

14. For all the aforesaid reasons, the order of dismissal from service

cannot be sustained and is accordingly set aside.

15. Having noticed that the procedure adopted by the disciplinary

authority and the appellate authority and the manner in which the

orders are passed is not in accord with law, ordinarily the matter

should be remitted to the stage of charge memo. However, the facts in

this case present a different picture. The absence relates to the year

1995 and the disciplinary action resulted in imposing punishment of

removal from service in the year 1996. Without appreciating the issue in

proper perspective the Tribunal dismissed the Original Application.

This writ petition is pending since 2003.

16. Remanding the matter would mean that the disciplinary authority

should go back to the drawing board to start the exercise afresh from

the stage of charge memo. The employee has to face the ignominy of

protracted disciplinary action for no fault of him, that too on the

allegation of absence for few weeks followed by sick leave.

17. Thus, it is an eminently fit case where Court should give quietus

to the litigation. Opting to this course require consideration of two

aspects. Firstly, on disciplinary action per se and secondly on back-

wages and other service benefits.

PNR,J & Dr.GRR,J WP No.26693 of 2003

18. In the normal circumstances, the disciplinary action could have

resulted in a minor punishment/less severe punishment. Petitioner has

already suffered enough, much more than a reasonable punishment

imposed in normal course on such allegation could have resulted in.

His prime life was scuffed due to indiscretion of the disciplinary

authority and he was deprived of rendering service to the State for such

a long time for no fault of him. In the earlier paragraphs Court noticed

illegalities running through the entire disciplinary action. It is

apparently a vindictive action more than to discipline a young brat

officer. Therefore petitioner deserves complete exoneration from the

disciplinary action.

19. The next issue is how to regulate the service, wages and

allowances for the period from the date of dismissal till the date he

attained age of superannuation and post reinstatement benefits.

20. Learned senior counsel contended that due to illegal and arbitrary

actions of respondents, petitioner was put to untold hardship and

suffering for more than 25 years; he struggled hard to eke-out a living

and taking responsibilities of the family, more particularly growing

children. As averred in the additional affidavit filed by the petitioner, he

initially tried to support his father by working in the agricultural farms

but he could not earn any money from the said agricultural activity. As

the burden of taking care of the family was increasing each day, he has PNR,J & Dr.GRR,J WP No.26693 of 2003

migrated to Hyderabad to do some activity on his own but he sustained

heavy losses. Ultimately, he joined in a proprietary concern, by name,

'Perfect Metaprint Industry' in the year 2013 and has been working in

the said firm for the last more than 9 years and earning 50,000/- per

month. In support of his claim on earnings, he filed income tax

returns. According to learned senior counsel, petitioner had to borrow

money to pay for the education of his son who was pursuing

Engineering and loans are yet to be cleared. He would therefore submit

that petitioner is entitled to back-wages for the entire period of out of

employment. On payment of back-wages and other benefits, learned

senior counsel placed reliance on Deepali Gundu Surwase v. Kranti

Junior Adhyapak Mahavidyalaya3 and Jayantibhai Raojibhai Patel Vs

Municipal Council, Narkhed and others4.

21. The issue of regulation of back-wages, for the period of out of

employment and granting consequential benefits was considered by the

Hon'ble Supreme Court in several decisions.

22. In Deepali Gundu Surwase (supra), the Hon'ble Supreme Court

culled out the propositions from the precedent decisions. To the extent

relevant paragraphs-22, 38 to 42 read as under:

"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

(2013) 10 SCC 324 4 (2019) 17 SCC 184 PNR,J & Dr.GRR,J WP No.26693 of 2003

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 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.

xxxx

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 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.

PNR,J & Dr.GRR,J WP No.26693 of 2003

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 victimising 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 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 the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back 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 finalisation 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 penalised. 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 (P) Ltd. v. Employees [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53] .

38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal [(2007) 2 SCC 433 : (2007) 1 SCC (L&S) 651] 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 [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53] , [Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443 : 1981 SCC (L&S) 16] 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.

xxxxx

41. In view of the above discussion, we hold that the learned Single Judge of the High Court committed grave error by interfering with the order passed by the Tribunal for payment of back wages, ignoring that the charges levelled against the appellant were frivolous and the inquiry was held in gross violation of the rules of natural justice."

23. In J.K.Synthetics Ltd. v. K.P.Agrawal,5 Hon'ble Supreme Court

held that if the termination is set aside and as a consequence employee

being exonerated or being found not guilty of the misconduct, the court

(2007) 2 SCC 433 PNR,J & Dr.GRR,J WP No.26693 of 2003

reaches a conclusion that the inquiry was held in respect of a frivolous

issue or petty misconduct, as a camouflage to get rid of the employee or

victimize him, and the disproportionately excessive punishment was

imposed, the principles relating to back wages would be the same as

those applied in the cases of an illegal termination.

24. Broadly, the principle that can be culled out from the precedent

decisions is, "if termination/dismissal/removal from service is found to

be ex facie illegal, unjustified, ordinarily the employee is entitled to all

benefits including continuity of service, advancement in service and

back-wages. However, Hon'ble Supreme Court also advised caution in

granting consequential benefits, more particularly on relief of

advancement in service. From the decisions cited at the bar, it is seen

that depending on the facts of a given case, appropriate back wages and

other benefits need to be granted.

25. In the case on hand, we have found that the termination was ex

facie illegal and was actuated with desire to victimize and is vindictive.

At any rate on the allegation of a short period of unauthorized absence,

followed by sanctioned leave, the punishment of dismissal was

disproportionate and is excessive. In the facts of this case, Court opines

that at this stage no punishment is warranted on a frivolous allegation

of unauthorized absence. Therefore, we are of the opinion that liberal

approach is required to be adopted with reference to the consequential

benefits.

PNR,J & Dr.GRR,J WP No.26693 of 2003

26. The petitioner is fair in submitting what he has done after his

termination. According to petitioner at least from 2013 he is gainfully

employed by drawing good amount of monthly allowances from private

employer. It appears, petitioner was not gainfully employed, was

struggling to eke-out living and subjected to lot of financial hardships

for the period from 1996 to 2013, for about 17 years, which was a

crucial period to look after his family and to educate his children. For

this period petitioner is entitled to pay and allowances.

27. However, calculation of actual benefits is a tedious exercise.

Instead, we deem it appropriate to fix a consolidated amount of

20 lakhs (Rupees twenty lakhs only) as pay and allowances for the

entire period of out of employment.

28. Further, petitioner is entitled to continuity of service for the

purpose of settlement of retirement benefits, earned leave etc. Petitioner

is entitled to retirement benefits and monthly pension.

29. The issue of promotion depends on the service put in, assessment

of suitability, eligibility and various other factors. Therefore, we leave it

open to the petitioner to stake a claim on his entitlement for

advancement in service. We only make an observation that in the event

petitioner making application to grant promotions, same should be

considered objectively and appropriate decision be taken thereon within PNR,J & Dr.GRR,J WP No.26693 of 2003

a period of three months from the date of submission of such

application.

30. The Writ Petition is accordingly allowed. Pending miscellaneous

applications, if any, stand closed.

______________________________ JUSTICE P.NAVEEN RAO

______________________________ DR.JUSTICE G.RADHA RANI Date: 08.04.2022 Kkm/tvk PNR,J & Dr.GRR,J WP No.26693 of 2003

HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE DR. JUSTICE G.RADHA RANI

WRIT PETITION NO.26693 OF 2003

Date: 08.04.2022 Kkm/tvk