Hon'ble Mrs. Rekha Dikshit,J.
(As per Hon'ble Anil Kumar, J.) Heard Sri O.P. Tiwari, learned counsel for appellant, Sri U.N. Mishra, learned counsel for respondents and perused the record.
By means of present special appeal the appellant has challenged the order dated 05.03.2013 passed in Writ Petition No. 2285 (SS) 2007 (Dharam Avtar Srivastava Vs. District Judge, Unnao and others) by which the order of compulsory retirement of the appellant dated 30.03.2007 passed by District Judge, Unnao has been set aside, however, it was held that the petitioner is not entitled for any backwages.
Facts in brief of the present case are that the order of compulsory retirement dated 30.03.2007 passed by District Judge Unnao has been challenged by the petitioner on three counts: (a) it was a malicious action on the part of opposite party (b) the record of the petitioner did not warrant a compulsory retirement and (c) that compulsory retirement has been resorted to as a measure of punishment which cannot be done.
By order dated 05.03.2013, the writ petition has been allowed, relevant observations are as under:-
"Learned counsel for the petitioner has also taken the attention of the court towards para no. 28 of the counter affidavit filed by the opposite party. In this paragraph the opposite parties have blundered and admitted that action of compulsory retirement was in-fact a punitive action on their part. They have stated that this was the minimum punishment which has been awarded to the petitioner. Compulsory retirement can not be resorted to as a punishment. It has been so held in the case of Ram Ikbal Sharma reported in 1990 (3) Supreme Court Cases 504. He referred to para 20,22,32 of the aforesaid judgment. Compulsory retirement is not a punishment. This exercise to assess the over all suitablity of an employee to segregate 'the dead wood' from the more efficient and active persons of the department. On this legal score also the impugned order can not stand. The argument of Sri Sanjay Kumar succeeds from this count also.
The petitioner was allowed selection grade on 21.11.2001 by the Hon. High Court. Petitioner argues that once selection grade was given to him any adverse entry prior to that should not be counted. The petitioner has relied upon para no. 5 of the judgment reported in 1989 (4) Supreme Court Cases 664 ( Vidya N. M. vs. State of Orissa and others).
Lastly, he has argued that his record was not such which would have warranted compulsory retirement in normal course. He has drawn the attention of the court towards the entry of 1994 and 1995 awarded by the reporting officer. It lays down as under :
"He was in the habit of shirking work. Though he is competent and efficient. He is also not a reliable and trustworthy. No complaint about his integrity was received."
This entry fails to give any correct impression about the work of the petitioner. The petitioner has never been found guilty of any misconduct.
Learned counsel for the petitioner has argued that no serious misconduct was reported against him. He was never suspended and has had unblemished service throughout. He has very humbly prayed that employee of the rank of the petitioner stood no chance against the malafide intentions of the opposite party.
In such a situation where no objective assessment was made by the screening committee the only assessment of the District Judge can not be taken to be correct and the order of compulsory retirement was absolutely arbitrary, malafide, unreasonable and unjustifiable.
Accordingly, the judgment and order dated 30.3.2007, as contained in Annexure no. 1 to the writ petition, is hereby set aside.
The petitioner shall be reinstated in service with the benefit of continuity. However, since he has not worked during the period he was under compulsory retirement there will be no order for the payment of salary. Rest of the consequential benefits will be available to the petitioner.
So far as the appointment of three persons is concerned it has been concluded by this court that they were illegal. These appointments could not have been made on the posts which were not available on the date of advertisement. Without advertising the posts, those persons were appointed subsequently when they did not constitute a waiting list but since their appointments are not under challenge in this writ petition the court would not like to pass any adverse order against them. Moreover, these persons are working since 2007 and to upset the whole position without there being any challenge to their appointment is neither desirable nor legal. Without touching their appointment this judgment will be restricted only to the merit of the petitioners case.
These observations against the appointment of the aforesaid three persons shall not be taken against them and their services will not be effected by this order. "
Sri O.P. Tiwari, learned counsel for appellant has challenged the impugned order dated 05.03.2013 passed in Writ Petition No. 2285 (SS) of 2007 by which the appellant has been deprived from the back wages on the following grounds:-
"I) While setting aside the order of compulsory retirement, it has been observed that the said order was passed without due application of mind as a result of which the petitioner was deprived of his livelihood at an age when he was unable to opt for any other service. So, in such a situation where a government servant is illegally and arbitrarily ousted from service and is prevented unlawfully form discharging the duties attached to his office, it would be unjust to deprive him of his due salary simply on the principle of no work and no pay.
II) The principle of ''No work No pay' is normally not attracted in a situation where the government servant suffers on account of illegal action of the State Authorities as the situation in the instant case, therefore, the order passed by Hon'ble Single Judge allowing the writ petition that the pension already paid to the petitioner during the intervening period would be treated as part of arrears of salary is contrary to principle of ''No work No pay'.
Because the order passed by the competent authority illegally has resulted into multiple losses to the petitioner's family and education of his children apart from the mental agony, and such a loss can only be compensated by allowing the claim of appellant's/petitioner's salary, so the impugned judgment deserves to be modified to this extent it deprive the appellant/writ petition from salary of the intervening period.
Once the Hon'ble Single Judge has found that the order of compulsory retirement was absolutely arbitrary, malafide, unreasonable and unjustifiable and there is no finding that there is no fault on the part of employee/petitioner then in these circumstances Hon'ble Single Judge should have awarded back wage. In support of his argument, learned counsel for appellant has placed reliance on the following judgments:-
1. Shobha Ram Raturi Vs. Haryana Vidhyut Prasaran Nigam Ltd. and others, 2016 (16) SCC 663.
2. Tamil Nadu Terminated Full time Temporary LIC Employees Association Vs. S.K. Roy, Chairman, Life Insurance Corporation of India and another, 2016 (9) SCC 366
3. Chairman Gwalior Development Authority and another Vs. Sandeep Tiwari and another, 2016 (1) SCC 797.
4. Pawan Kumar Agarwala Vs. General Manager II and Appointing Auhority, State Bank of India and others, 2015 (15) SCC 184
5. Fisheries Department State of Uttar Pradesh Vs. Charan Singh, 2016 (8) SCC 150.
6. K.S. Ravindran Vs. Branch Manager New India Assurance Company Limited, 2015 (7) SCC 222.
7. Tapash Kumar Paul Vs. Bharat Sanchar Nigam Ltd. and another, 2014 (15) SCC 313
8. Shiv Nandan Mahto Vs. State of Bihar and others, 2013 (11) SCC 626.
9. Roop Singh Negi Vs. Punjab National Bank and others, 2009 (2) SCC 570.
10. Somesh Tiwari Vs. Union of India and others, 2019 (2) SCC 592.
Accordingly, Sri O.P. Tiwari, learned counsel for appellant submits that the judgment passed by Hon'ble Single Judge so far it denied the back wages may be set aside and the same be awarded.
Sri U.N. Mishra, learned counsel for respondent/District Judge, Unnao submits that in the present case, no doubt, the order of compulsory retirement has been set aside by Hon'ble Single Judge by order dated 05.03.2013 but in the pleadings in the writ petition, petitioner has not stated anywhere that he was not gainfully employed during the intervening period i.e. from the date of compulsory retirement till passing of the judgment by Hon'ble Single Judge, so in view of the principle of "No Work No Pay" he is not entitled for any back wages. In support of his argument, he relied on the following judgments given by Hon'ble the Supreme Court:-
1. M.P. State Electricity Board Vs. Jarina Bee (Smt.), 2003 (6) SCC 141.
2. Munil Sharma Vs. State of Assam and Ors. 2016 (14) SCC 208.
3. P. Darupaiah (D) Thr. LRs. Vs. General Manager, Thruuvalluvar Transport Corporation Ltd, 2018 LAB. I.C. 197.
Thus, it is submitted by Sri U.N. Mishra, learned counsel for respondent that the judgment passed by learned Single Judge thereby not awarding the back wages to the appellant-petitioner is perfectly valid, special appeal is liable to be dismissed.
We have heard learned counsel for parties and gone through the record.
Before adjudicating and deciding the controversy involved in the present case, we fee appropriate to go through the judgment cited by learned counsel for parties.
In the case of Somesh Tiwari Vs. Union of India and others, 2019 (2) SCC 592, Hon'ble the Supreme Court held as under:-
"The High Court while exercising its jurisdiction under Article 226 of the Constitution of India must consider the fact of each case. Mechanical application of the normal rule "no work no pay" may in a case of this nature, be found to be wholly unjust. No absolute proposition of law in this behalf can be laid down.
This Court in Commissioner, Karnataka Housing in Commissioner, Karnataka Housing Board v. C. Muddaiah, [(2007) 7 SCC 689 ] laid down the law, thus :-
"32. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged.
We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case).
The bald contention of the appellant-Board, therefore, has no substance and must be rejected."
In the case of Shiv Nandan Mahto Vs. State of Bihar and others, 2013 (11) SCC 626, Hon'ble the Supreme Court held as under:-
" Having heard learned Counsel for the parties, we are constrained to observe that the High Court failed to examine the matter in detail in declining the relief to the Appellant. In fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the Appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension, as wrongly recorded by the High Court. The conclusion is, therefore, obvious that the Appellant could not have been denied the benefit of backwages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion, the Appellant was entitled to be paid full backwages for the period he was kept out of service.
Consequently, the appeal is allowed. The order passed by the Division Bench is quashed and set aside. The Appellant has already been reinstated in service. The Respondents are, however, directed to pay to the Appellant the entire full backwages from the period he was kept out of service till reinstatement. The full backwages shall be paid to the Appellant with 9% interest. Let the amount be paid to the Appellant within a period of three months from the date of receipt of copy of this order."
And Hon'ble Supreme Court in the case of Tapash Kumar Paul Vs. Bharat Sanchar Nigam Ltd. and another, 2014 (15) SCC 313, after considering the various judgments on the privisous judgment passed in the case of Telegarph Deptt. Vs. Satosh Kumar Seal 2010 (6) SCC 773; Jasbir Singh Vs. Haryana State Agriculture Mktg. Board, 2009 (15) SCC 327; BSNL Vs. Kailash Narayan Sharma Order dated 07.01.2014 (SC) in Civil Appeal No. 107 of 2017); Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya, 2013 (10) SCC 324, held that, One set of view is to the effect that if the termination of employee has been found illegal, the relief by way of reinstatement with back wages is not automatic even if the termination of employee is found to be illegal or in contravention to the prescribed procedure, placing reliance on the judgment given by three Judges Bench, namely, Hindustan Tin Works (P) Ltd. Vs. Employees, 1979 (2) SCC 80; Surendra Kumar Verma Vs. Central Govt. Industrial Tribunal-cum-Labour Court, 1980 (4) SCC 443, wherein Hon'ble Apex Court held as under:-
"It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavoured to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it they were forced to litigation up to the Apex Court now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them.
* * * In the very nature of things there cannot be a straitjacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular."
Another three-Judge Bench of Hon'ble Apex Court in Surendra Kumar Verma & Ors. v. Central Government Industrial Tribunal-cum- Labour Court, New Delhi & Anr., 1980 (4) SCC 443 observed as under:-
"... Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-à-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders. The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown.
True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted."
In the case of K.S. Ravindran Vs. Branch Manager New India Assurance Company Limited, 2015 (7) SCC 222, Hon'ble the Supreme Court held as under:-
" After considering the facts, circumstances and evidence on record, we are of the view that the Appellant is entitled for reinstatement with back-wages and other consequential benefits as per the principles laid down by this Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324, wherein it was held 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 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 concerned employee, 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. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
In the case of Fisheries Department State of Uttar Pradesh Vs. Charan Singh, 2016 (8) SCC 150, Hon'ble the Supreme Court held as under:-
"Thus, in view of the cases referred to supra, there was absolutely no justification on the part of the Industrial Tribunal to deny back wages to the Respondent even when it is found that the order of termination is void ab initio in law for non-compliance of the mandatory provisions Under Section 6N of the Act. Keeping in view the fact that the period of termination was in the year 1975 and the matter has been unnecessarily litigated by the employer by contesting the matter before the Industrial Tribunal as well as the High Court and this Court for more than 40 years, and further, even after the Award/order of reinstatement was passed by the Industrial Tribunal directing the employer to give him the post equivalent to the post of Tube-well Operator, the same has been denied to him by offering the said post which is not equivalent to the post of Tube-well Operator and thereby, attributing the fault on the Respondent for non reporting to the post offered to him, which is once again unjustified on the part of the employer.
21. Thus, the principle "no work no pay" as observed by this Court in the catena of cases does not have any significance to the fact situation of the present case as the termination of the services of the workman from the post of Tube-well Operator is erroneous in law in the first place, as held by us in view of the above stated reasons.
22. The Respondent and his family members have been suffering for more than four decades as the source of their livelihood has been arbitrarily deprived by the Appellant. Thereby, the Right to Liberty and Livelihood guaranteed Under Articles 19 and 21 of the Constitution of India have been denied to the Respondent by the Appellant as held in the case of Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors. (1985) 3 SCC 545, wherein this Court has held thus:
32. As we have stated while summing up the Petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the Petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P."
In the case of Pawan Kumar Agarwala Vs. General Manager II and Appointing Auhority, State Bank of India and others, 2015 (15) SCC 184, Hon'ble the Supreme Court held as under:-
"For the reasons stated supra, we have examined the case threadbare on the basis of the material placed on record and rival legal contentions urged on behalf of the parties, we hold that the finding of the enquiry officer on the charges is vitiated on account of non-compliance of the statutory Rules and the principles of natural justice. In the absence of evidence, the order of reinstatement sans full back wages is unjustified in law. At best, the High Court should have made deduction of the amount of pension received by the Appellant after awarding full back wages for the period in question. In not doing so, the orders of the learned Single Judge and the Division Bench of the High Court are liable to be set aside with regard to non-grant of full back wages. "
In the case of Chairman Gwalior Development Authority and another Vs. Sandeep Tiwari and another, 2016 (1) SCC 797, Hon'ble the Supreme Court held as under:-
"We see no justifiable reason warranting payment of back wages to the respondents, who were appointed without following any procedure of law and moreover, the High Court has not assigned any reason for which 50% back wages have been granted to the respondents. In the circumstances, the directions given by the High Court regarding payment of of back wages are set aside.
In the case of Tamil Nadu Terminated Full time Temporary LIC Employees Association Vs. S.K. Roy, Chairman, Life Insurance Corporation of India and another, 2016 (9) SCC 366, Hon'ble the Supreme Court held as under:-
"Mr. Mukul Rohatgi, the learned Attorney General appearing on behalf of the review Petitioner-LIC contends that this Court, while passing the judgment and order dated 18.03.2015, failed to appreciate that the Tulpule and Jamdar awards stood substituted by the "Terms of Compromise" way back on 01.03.1989, which stood finally disposed of vide judgment and order dated 07.02.1996 passed by this Court in Civil Appeal No. 1790 of 1989. It is further contended that this Court failed to appreciate the effect of settlement of an award, in the light of the decision of this Court in the case of Herbertsons Ltd. v. Workmen (1976) 4 SCC 736, which has further been followed by this Court in the cases of Transmission Corpn., A.P. Ltd. v. P. Ramchandra Rao (2006) 9 SCC 623 and ITC Ltd. Workers Welfare Assn. v. ITC Ltd. (2002) 3 SCC 411.
The review Petitioner-LIC has not submitted anything on record to suggest that the impugned judgment and order suffers from an error apparent in law. While in the review petitions the factual and legal submissions urged in the Civil Appeal have been reiterated, in the written submissions placed before us, the emphasis shifted to the practical difficulty in implementation of the order of this Court. It has been well settled by this Court that a mere repetition of the same arguments which were urged in the appeal and have been rejected, is not sufficient to justify the exercise of power of review Under Article 137 of the Constitution by this Court. "
In the case of Shobha Ram Raturi Vs. Haryana Vidhyut Prasaran Nigam Ltd. and others, 2016 (16) SCC 663, Hon'ble the Supreme Court held as under:-
"The denial of back wages to the Appellant by the High Court vide its order dated 14.09.2010 was assailed by the Appellant by filing Letters Patent Appeal No. 489 of 2011. The High Court rejected the claim of the Appellant, while dismissing the Letters Patent Appeal on 26.5.2011. The orders dated 14.09.2010 and 26.5.2011 passed by the High Court limited to the issue of payment of back wages, are subject matter of challenge before this Court.
Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31.12.2002 was set aside, the Appellant was entitled to all consequential benefits. The fault lies with the Respondents in not having utilised the services of the Appellant for the period from 1.1.2003 to 31.12.2005. Had the Appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1.1.2003 to 31.12.2005, the Respondent cannot be allowed to press the self serving plea of denying him wages for the period in question, on the plea of the principle of "no work no pay"."
In the case of M.P. State Electricity Board Vs. Jarina Bee (Smt.), 2003 (6) SCC 141, after placing reliance in the case of P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar (JT 2001(1) SC 336), Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and Another (2002 AIR SCW 3008) and Indian Railway Construction Co. Ltd. v. Ajay Kumar (JT 2003(2) SC 295), it has been held as under:-
"In P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar (JT 2001(1) SC 336), this Court found fault with the High Court in setting aside the award of the Labour Court which restricted the back wages to 60% and directing payment of full back wages. It was observed thus: "The labour court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the labour Court.
It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect."
Again at paragraph 12, this Court observed: "Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety."
The position was reiterated inHindustan Motors Ltd. v. Tapan Kumar Bhattacharya and Another (2002 AIR SCW 3008)(2002 AIR SCW 3008) and Indian Railway Construction Co. Ltd. v. Ajay Kumar JT 2003(2) SC 295.
Applying the legal principles, the inevitable conclusion is that the High Court committed an error in holding that the award of full back wages was the natural consequence. "
In the case of Munil Sharma Vs. State of Assam and Ors. 2016 (14) SCC 208, Hon'ble the Apex Court has held that Court cannot grant back wages automatically in case if the impugned order of punishment of dismissal is set aside but while doing it should take into consideration that in absence of any material on record before granting the same Court must be considered that there should be same material on record that he remained unemployed during the period on which his services were terminated.
In the case of P. Darupaiah (D) Thr. LRs. Vs. General Manager, Thruuvalluvar Transport Corporation Ltd, 2018 LAB. I.C. 197, Hon'ble the Apex Court held as under:-
" Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.
The law on the question of award of back wages has taken some shift. It is now ruled in cases that when the dismissal/removal order is set aside/withdrawn by the Courts or otherwise, as the case may be, directing employee's reinstatement in service, the employee does not become entitled to claim back wages as of right unless the order of reinstatement itself in express terms directs payment of back wages and other benefits. (See M.P. State Electricity Board vs. Jarina Bee(Smt.), (2003) 6 SCC 141). (See also Sukhdev Pandey vs. Union of India (2007) 7 SCC 455) So far as the judgment cited by Sri U.N. Mishra, learned counsel for respondent in support of his contention that if order of compulsory retirement is set aside by the Court then writ petitioner is not automatically entitled for back wages and he has placed reliance on the judgment passed by Hon'ble the Apex Court in the case of M.P. State Electricity Board Vs. Jarina Bee (Smt.), 2003 (6) SCC 141, P. Darupaiah (D) Thr. LRs. Vs. General Manager, Thruuvalluvar Transport Corporation Ltd, 2018 LAB. I.C. 197 are concerned they are not applicable to the facts of the present case because both the judgments are arising out of controversy issues is form the Industrial Disputes Act, 1947 and the punishment order, dismissal/removal of the employee in the said cases were set aside but they were not awarded back wages by Hon'ble the Supreme Court as under the Industrial Disputes Act there is a proviso to Section 17(B) of the Industrial Disputes Act by virtue of which after setting aside of the dismissal/removal order of an employee, he has to file an affidavit indicting that he is not gainfully employed anywhere during the intervening period only in order to get the back wages. The said requirement statutory one due to proviso of Section 17(B) of the Industrial Dispute Act. However, the said position does not exist in the present case.
Further, in all three cases cited by Sri U.N. Mishra, learned counsel for respondents, Hon'ble the Apex Court while passing all the judgments, namely, M.P. State Electricity Board Vs. Jarina Bee (Smt.), 2003 (6) SCC 141; Munil Sharma Vs. State of Assam and Ors. 2016 (14) SCC 208 ; P. Darupaiah (D) Thr. LRs. Vs. General Manager, Thruuvalluvar Transport Corporation Ltd, 2018 LAB. I.C. 197 had not taken into consideration three Judges Bench judgments of Hon'ble Supreme Court in the case of Hindustan Tin Works Pvt. Ltd. employees (Supra) and Surendra Kumar Sharma (Supra) wherein it was held as under:-
"In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted."
The pri nciple has been laid down keeping in view the public interest that a Government servant who does not discharge his duty is not allowed pay and arrears at the cost of public exchequer. It cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court. Denial of salary on the ground of 'no work no pay' cannot be treated as a penalty (See State of U.P. vs. Madhav Prasad Sharma (2011) 1 JT 326) and mechanical application of normal Rule "no work no pay" may in some cases be found to be wholly unjust. No absolute proposition of law in this behalf can be laid down. (See Somesh Tiwari v. Union of India (2009) 2 SCC 592) While dealing with the prayer for back wages, factual scenario, equity and good conscience and a number of other factors; like the manner of selection; the nature of appointment; the period for which the employee had worked with the employer, etc. have to be kept in mind. All these factors are illustrative and no precise formula can be laid down as to under what circumstances full or partial back wages should be awarded. It depends upon the facts and circumstances of each case. (See Kanpur Electricity Supply Company Limited v. Shamim Mirza (2009) 1 SCC 20).
In other words, it can be said that legal position is fairly settled by a catena of decisions that direction to pay back wages in its entirety is not automatic consequent upon declaration of dismissal order bad in law. The concept of discretion is inbuilt in such exercise. The court is required to exercise discretion reasonably and judiciously keeping in view the facts and circumstances of the case. Each case, of course, would depend on its own facts and no straight jachket formula can be evolved.
In the instant matter, the position is that the appellant-petitioner was compulsorily retired by an order dated 30.03.2017 passed by District Judge, Unnao, challenged by him by filing Writ Petition No. 2285 (SS) of 2007 by order of reinstatement was set aside by learned Single Judge on the ground that no objective assessment was made by the screening committee the only assessment of the District Judge can not be taken to be correct and the order of compulsory retirement was absolutely arbitrary, malafide, unreasonable and unjustifiable. However, he was reinstated in service with benefit of continuity, however he was denied back wages for the intervening period on the ground that he has not asked during the said period.
Accordingly, taking into consideration the law as laid down by Hon'ble the Apex court in the Full Bench judgment, namely, Hindustan Tin Works Pvt. Ltd. employees (Supra) and Surendra Kumar Sharma (Supra) which governs the filed in question, looking into the facts and circumstances of the case, the Court may mould the relief in respect to grant of back wages to ordinary relief to be awarded must be reinstatement with back wages, we think fit and proper that the interest of justice will sub-serve in the present case if the appellant-petitioner may be given 50% of back wage for the period from the date of compulsory retirement till the same was set aside by order dated 05.03.2013 passed in Writ Petition No. 2285 (SS) of 2007.
In the result, special appeal is partly allowed with the observations that the judgment and order dated 05.03.2013 passed in Writ Petition No. 2285 (SS) of 2007 by learned Single Judge is modified to the extent that appellant-petitioner is entitled for 50% of back wages from the date of compulsory retirement till the date of passing of the judgment under challenge in the present special appeal.
No order as to costs.
(Rekha Dikshit J.) (Anil Kumar, J.) Order Date :- 30.08.2018 Ravi/