Heard Sri Ajay Kishor Pandey, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
By means of this petition, the petitioner has prayed following reliefs:-
"i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 25/11/2017 passed by Opposite party no.3.
ii) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pay all back wages, increment with 12% interest and the seniority maintained at the time of joining."
Learned counsel for the petitioner has contended that since the impugned order of dismissal was illegal and arbitrary, therefore, it was quashed by this Court vide judgment and order dated 17.11.2016 passed in Service Single No.9088 of 2016; Dharmendra Kumar Yadav Vs. State of U.P. and others. Sri Pandey has further submitted that the judgment and order dated 17.11.2016 has not been assailed by the State Government by filing appeal before this Court or before the Hon'ble Supreme Court, therefore, the judgment and order dated 17.11.2016 has attained finality. Learned counsel for the petitioner has further submitted that even the reason indicated in the impugned order, which was quashed by this Court, has also lost its efficacy inasmuch as in the criminal case indicated in the impugned order, the petitioner has already been acquitted.
Learned Standing Counsel has, however, tried to defend the impugned order dated 25.11.2017 but on being confronted on the point that when the dismissal order has already been quashed by this Court treating the same as illegal and arbitrary, as to how the petitioner may be denied the benefit of arrears of salary w.e.f. the date of dismissal to his reinstatement, learned Standing Counsel could not explain the said anomaly of the impugned order dated 25.11.2017.
Having heard learned counsel for the parties and perused the material available on record, I am of the considered opinion that if the punishment order of dismissal has already been quashed by this Court and the order of this Court has attained finality, then it shall be presumed that the punishment order has lost its efficacy and it shall be treated as if it was not issued against the petitioner. Further, if the punishment order was declared non-est in the eyes of law, then the benefit of salary from the date of dismissal till the date of reinstatement may not be denied. This Court in re; U.P.S.R.T.C. and others Vs. Presiding Officer, Labour Court, Faizabad and another, 2019 (5) AWC 4287 (LB), has decided more or less the identical controversy holding that the employee whose punishment order has been set aside shall be entitled for all benefits. Paragraphs 20 to 24 of the aforesaid judgment are being reproduced herein below:-
"20. When an order of termination by way of punishment i.e dismissal or removal is set aside being in violation of principle of natural justice, such an order of punishment renders in nullity and legal consequence is that concerned employee was never terminated by way of removal or dismissal and has already continued in service. That being so, question of direction of reinstatement in fact is a misnomer. Since such a person in law continued in service without any interruption as if no order of termination was ever passed. It is only to avoid any administrative doubt that a direction of reinstatement is normally given but the nature of such an order is nothing but a declaration that termination of service by way of dismissal or removal is a nullity and the natural consequence is that incumbent concerned is deemed to continue in service as for he was never terminated. That being so, it is normal rule that incumbent is entitle for all consequential benefits as for he was never terminated. Consequently when an order of termination is set aside on the ground that it was not legally passed following the procedure laid down in law, the concerned employee is not supposed to be made to suffer for something for which he was not responsible inasmuch an illegal order obviously could have resulted due to negligence or illegality committed by concerned authorities i.e Enquiry Officer or Disciplinary Authority and above and for their fault employee concerned is not to be made to suffer otherwise it will amount to victimize a person for something for which he was not at fault even if order of termination is found to be illegal and void ab initio.
21. In Pawan Kumar Agrawala Vs General Manager-II and Appointing Authority, State Bank of India and others, 2015 (13) SCALE 45, Court having considered various earlier authorities on the subject said in para 38:-
"38. The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii) 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.
iii) 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. ...
iv) The cases in which the Labour Court/Industrial Tribunal ... 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.
v) 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 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 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.
vi) 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 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--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 of Hindustan Tin Works Private Limited (1979) 2 SCC 80.
vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433 that on reinstatement the employee/workman cannot claim continuity of service as matter 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." (emphasis added)
22. Thereafter in the penultimate para 20 in Pawan Kumar Agrawala (supra), Court held that findings of Enquiry Officer on the charges are vitiated on account of non compliance of the statutory Rules and the principles of natural justice. In the absence of evidence, order of reinstatement without full back wages is unjustified in law. Court after setting aside judgment of High Court, awarded reinstatement with full back wages for the period from date of removal till the date employee attained age of superannuation on the basis of periodical revisions of salary but after deducting amount of pension already paid from back wages.
23. In K.S. Ravindran Vs Branch Manager, New India Assurance Company Ltd., 2015 (7) SCC 222, Court referred to legal principles laid down in its earlier decision in Mohan Lal Vs Bharat Electronics Ltd., 1981 (3) SCC 225 and quoted the following observation:
"But there is a catena of decisions which rule that where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits."
(emphasis added)
24. Earlier, in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, 2013 (10) SCC 324, Court said;
"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."
(emphasis added) Considering the entirety of the issue and the decision of this Court in re; U.P.S.R.T.C. (supra), I find that the impugned order dated 25.11.2017 passed by opposite party no.3 is not sustainable in law, therefore, the same is liable to be set aside being arbitrary and violative of Article 14 of the Constitution of India.
Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 25.11.2017 passed by opposite party no.3. A writ in the nature of mandamus is issued commanding the opposite parties to make payment of full back wages to the petitioner with all consequential benefits including seniority etc., with promptness, preferably within a period of two months from the date of receipt of certified copy of this order, failing which the petitioner shall be entitled for the interest at the rate of 8% from the date the dues accrued till the date of its actual payment.
No order as to costs.
Order Date :- 30.7.2021 RBS/-
[Rajesh Singh Chauhan,J.]