SPA/161/2021
2022 Latest Caselaw 3389 UK

      IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

        THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                               AND
         THE HON'BLE SRI JUSTICE RAMESH CHANDRA KHULBE


                 SPECIAL APPEAL NO. 161 OF 2021

                        19th OCTOBER, 2022

Between:

Union of India & others                  ......          Appellants


and


Assistant Sub Inspector
No. 860030295 Narayan Singh
                                         ......          Respondent

Counsel for the appellants : Mr. V.K. Kaparuwan, proxy counsel on behalf of Mr. Pankaj Chaturvedi, learned Standing Counsel for the Union of India / appellants

Counsel for the respondent : Mr. Pradeep Hairiya, learned counsel

The Court made the following:

JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)

The present Special Appeal is directed against

the judgment rendered by the learned Single Judge in

Writ Petition (S/S) No. 608 of 2019, dated 04.12.2020.

By the impugned judgment, the learned Single Judge

allowed the writ petition preferred by the respondent /

writ petitioner.

2) Brief facts of the case are that the respondent

was appointed in Indo Tibetan Border Police (ITBP) on

19.09.1986; he was dismissed from service vide order

dated 04.06.1998. He challenged his dismissal by

preferring Writ Petition (S/S) No. 338 of 2000 (Old No.

6731 of 1999) before the High Court of judicature at

Allahabad. After creation of the High Court of

Uttarakhand, the said petition was transferred to this

Court. The Division Bench of this Court set aside the

dismissal order vide judgment dated 04.08.2004 on the

ground that the punishment of dismissal was

disproportionate and shocking in nature. The Court

proceeded to substitute the penalty imposed upon the

respondent from dismissal to reduction in rank, i.e.,

from the rank of Head Constable to the rank of

Constable. The said reduction in rank was to continue

for two months from the date of production of the

certified copy of the order, where after the respondent

was to be reverted back to the higher rank of Head

Constable. In compliance of the said judgment, the

respondent was reinstated in service on 16.08.2004 on

the post of Constable / G.D. However, he was reinstated

in provisional pay of Rs.3350/- per month equal to

regular pay prevailing on 01.11.1997 under the pay

scale of Rs.2750-70-3800-75-4400. After completion of

two months, i.e., on 15.10.2004, he was fixed in the

provisional pay on the post of Head Constable / G.D.,

i.e., Rs.3370/- per month equal to the regular pay as on

10.10.1997 under the pay scale of Rs.3200-85-4900.

3) The respondent filed a clarification application

No. 183 of 2012 in the disposed of Writ Petition (S/S)

No. 338 of 2000. The clarification sought by the

respondent was in relation to the salary payable to him

from the date of his dismissal, to the date of

reinstatement in service. The said application was

disposed of by the Court on 03.04.2012 with the

following observation :

"A disciplinary proceeding resulted in passing of an order of dismissal of the petitioner. In a writ petition, the order of punishment was altered by providing that the writ petitioner shall be punished by reverting him from the post of head constable to the post of constable for two months, where after, the petitioner shall be given the rank of head constable. This order is so clear that there is no question of giving any clarification in relation thereto. While dealing with the matter and directing in the manner as above, the Division Bench allowed reinstatement, but did not give any direction in relation to the period the petitioner remained out of employment from the date of his dismissal and until the date of passing the order of the

Division Bench and, accordingly, it must be, in Law, deemed that the Division Bench left the matter there. If such a situation is dealt with by the Rules governing the service conditions of the petitioner, it goes without saying that the matter has to be dealt with in terms of those Rules. However, the order, at the same time, in so many words directed reinstatement of the petitioner and, accordingly, the status of the petitioner is required to be ascertained on the basis thereof read with the relevant provisions of the Service Rules. We, accordingly, find no scope to give any clarification to the order as above."

(emphasis supplied)

4) The petitioner was aggrieved by the non-

payment of salary for the period that he remained

dismissed from service, and also by the fixation of

provisional salary, instead of regular salary, after his

reinstatement. The learned Single Judge has allowed

the writ petition thereby directing the appellant to grant

him regular salary, and to pay arrears of difference

between the regular salary and the provisional salary.

The learned Single Judge has also directed payment of

salary to the petitioner for the period 04.06.1998 to

15.08.2004, during which period the petitioner did not

render service. The stand of the appellant - that he was

not entitled to salary for the said period on the principle

of "No Work No Pay", as he was not fully exonerated

while being reinstated in service by this Court, was

rejected.

5) The submission of learned counsel for the

appellants is that the respondent not having served for

the aforesaid period between 04.06.1998 to 15.08.2004,

he was not entitled to receive any salary, as his

reinstatement by the Court was not on account of his

guilt being washed away. It was on account of the fact

that the Court found the punishment imposed upon the

respondent to be disproportionate.

6) On the other hand, learned counsel for the

respondent has supported the impugned judgment. He

submits that the Division Bench while disposing of the

clarification application on 03.04.2012, had directed the

appellant to examine the position in accordance with the

rules governing the service conditions of the respondent,

and under the service conditions, as observed by the

learned Single Judge, there is no rule incorporating the

principle of "No Work No Pay". Thus, the respondent

was entitled to salary for the period that he remained

out of service, i.e., 04.06.1998 to 15.08.2004.

7) We have heard learned counsels and

considered their submissions. We have also perused the

impugned order and the record.

8) So far as the fixation of provisional salary of

the respondent, upon his reinstatement in terms of the

order of the Court is concerned, there was no basis for

the appellant to fix the provisional salary of the

respondent. He was a regular employee. His dismissal

had been set aside when he was directed to be

reinstated with reduction in rank. Therefore, from

04.06.1998, when he was dismissed, he stood

reinstated, though in the post of Constable / G.D. He

continued to remain in that post till 15.10.2004.

Thereafter, he regained his status as Head Constable /

G.D. We are, therefore, of the view that so far as the

grant of provisional salary to the respondent is

concerned, the same was not justified, and the learned

Single Judge was correct in directing the grant of regular

salary to the petitioner, and payment of the arrears of

difference between the regular salary and provisional

salary.

9) However, we are of the view, that the

direction issued by the learned Single Judge directing

that the respondent should be paid salary for the period

when he did not serve between 04.06.1998 to

15.08.2004, was not justified. As noticed above, while

allowing the writ petition preferred by the respondent,

being Writ Petition (S/S) No. 338 of 2000, the Court did

not give a clean slate to the respondent. His guilt was

not effaced. The Court did not find the conduct of the

respondent - on the basis of which he was dismissed

from service, to be blemishless. It is only the quantum

of punishment imposed upon the respondent that was

found to be disproportionate, and, therefore, the same

was substituted from dismissal to reduction in rank.

10) The respondent, admittedly, did not render

service between 04.06.1998 to 15.08.2004. He did not

serve during the said period on account of his own

misconduct. That being the position, the principle of "No

Work No Pay" was correctly applied by the appellant to

deny salary to the respondent for the said period. To

grant salary to the respondent for the period that he had

not worked, for which he was responsible, would amount

to granting premium on misconduct, which cannot be

permitted. The clarification issued by the Division

Bench, as extracted hereinabove, nowhere states that

the judgment rendered in Writ Petition (S/S) No. 338 of

2000, directed payment of arrears of salary for the period

that the respondent did not render service. In fact, the

clarificatory order observes that the Division Bench did not

give any direction in relation to the period the petitioner

remained out of employment from the date of his dismissal

and until the date of passing the order by the Division

Bench. The observation made by the learned Single Judge

that under the service rules there is no rule providing for

"No Work No Pay" is, even otherwise, not correct. In

service jurisprudence, dias non is a well known concept,

i.e., that the period for which the employee does not work

may be treated as not counted for any purpose, including

for the purpose of payment of salary.

11) For the aforesaid reasons, we set aside the

impugned judgment in so far as it directs payment of

salary to the respondent for the period 04.06.1998 to

15.08.2004.

12) The Appeal stands allowed to the aforesaid

extent.

________________ VIPIN SANGHI, C.J.

[

___________ R.C. KHULBE, J.

Dt: 19th OCTOBER, 2022 Negi