Heard learned counsel for the petitioner as well as learned Standing Counsel.
The petitioner proceeded on leave which was sanctioned Earned Leave in the year 1974, and thereafter, he did not report for duty. The services of the petitioner was terminated in 1978 for unauthorized absence. The petitioner had challenged the termination order by filing Claim Petition No. 142/7/V/80 of 1979 before the State Public Services Tribunal, U.P. which was dismissed by the Tribunal vide judgment and order dated 08.12.1981. Petitioner aggrieved by the said order preferred Writ Petition No. 524 of 1982 before this Court which was allowed vide judgment and order dated 12.04.1989. In pursuance of the order of this Court, the petitioner was re-instated by order dated 16.02.1990. The re-instatement order clearly stated that the petitioner's claim for salary for the period under termination shall be subject to the result of the out come of the pending disciplinary proceedings. The petitioner again approached the Tribunal by filing Claim Petition No. 248 of 1991 as no action was taken by the respondents in completing the enquiry. Thereafter, the petitioner was issued a charge-sheet and the enquiry was completed and enquiry report dated 21.02.1992 was served. In the meantime, the Tribunal vide judgment and order dated 01.03.1995 directed the enquiry officer to conduct the enquiry by an officer who is well versed with the procedure for holding departmental enquiry. Petitioner again preferred Writ Petition No. 3530 (SS) of 1995 before this Court. During the pendency of the writ petition, an order dated 09.02.1996 was passed by the appointing authority on the basis of enquiry report dated 30.06.1995 stating that the petitioner was not entitled for salary for the period 16.04.1974 to 30.12.1978 and for the period 31.12.1978 to 06.03.1990 on the basis of the rule of 'No work No pay' as the petitioner absented unauthorizedly without permission. Aggrieved by order dated 09.02.1996, the petitioner filed another Writ Petition No. 5054 (SS) of 1996 and the same was dismissed on the ground of alternative remedy. Petitioner thereafter filed Claim Petition No. 2596 of 1997 before the Tribunal for quashing of order dated 09.02.1996 and for refund of amount of Rs. 4584.79/-, deducted from monthly salary of the petitioner. The claim petition was decided by the Tribunal vide order dated 22.04.2004 wherein the Tribunal observed that the order dated 09.02.1996 deserved to be set aside only to the extent of recovery of Rs. 4584.79/-. Aggrieved by said order, petitioner filed Writ Petition No. 1320 of 2002 challenging the said order.
This Court heard the both the petitions i.e. Writ Petition No. 1320 of 2002 and 3530 of 1995 and by a common judgment and order dated 10.07.2007 held as under:-
"However with respect to entitlement of the petitioner for the aforesaid period, we, at this stage, do no express any final opinion since the matter is yet to be decided afresh by the authorities concerned and therefore we leave it open to the authorities to take a decision in the light of law as discussed above.
Before parting it may also be observed that during the pendency of this matter, petitioner has already attained the age of superannuation on 30.06.2001.
In the result, both the writ petitions are disposed of finally with the directions that the competent authorities shall take a final decision as required by the Tribunal vide judgment dated 01.03.1995 passed in claim petition no. 248 of 1991 and order dated 22.04.2002 passed in claim petition no. 2596 of 1997 within a period of three months from the date of production of certified copy of this order. Consequently, they will also take a decision in respect of entitlement of the petitioner for salary for the period he remained out of service i.e. 31.12.1978 to 06.04.1990. The said decision would also be taken within the aforesaid period in the light of the observations made above and law laid down in the cases as discussed above. The petitioner is not entitle for any arrears of salary for the period from 16.04.1974 to 30.12.1978 and the decision of the authorities and the Tribunal to this extant confirmed. Pensionary benefits of the petitioner shall also be calculated accordingly as consequence of the aforesaid final order passed in prusuance of this order within a further period of four months thereafter and the amount found payable to the petitioner shall be paid to him within further three months thereafter."
In pursuance of said judgment and order, the respondents have passed the impugned order dated 20.10.2007. Aggrieved by the said order, the petitioner has preferred this writ petition and has also sought a writ of mandamus for payment of arrears for the period 31.12.1978 to 06.03.1990.
The contention of learned counsel for the petitioner is that petitioner was ready to work for the said period but he was not allowed to work but there is no pleading in entire writ petition to that effect explaining his absence.
Learned Standing Counsel in rebuttal stated that the petitioner is not entitled for payment from 1978 to 1990 as petitioner was not present during the said period and impugned order rightly does not permit the petitioner payment of salary as the petitioner had unauthorizedly absented from duty and there is no pleading regarding his absence, argument or evidence cannot be led without pleadings. Since the petitioner has superannuated on 30.06.2001 no enquiry can be held. The petitioner has placed reliance on the judgment dated 10.07.2007 by stating that the respondents have not complied with the direction of the said judgment as well as the orders of the Tribunal and no decision has been taken regarding entitlement of salary for the period between 1978 to 1990. The contention is wholly misconceived. The Tribunal vide its order dated 22.04.2004 only set aside the order dated 09.02.1996 to the extent of recovery sought to be made from the salary of the petitioner. The rest of the impugned order was upheld which has already decided payment of salary for the period 1978 to 1990. The respondents have not recovered Rs. 4584.79 from the petitioner in pursuance of the Tribunal's order. The Tribunal's order, therefore, fully stands complied with. The Second part of the High Court's order dated 10.07.2005 only required that the decision be taken by the authorities regarding payment of salary for the period 1978 to 1990. The authorities have taken a decision for entitlement of salary for the period 31.12.1978 to 06.03.1990 on the basis of their earlier order dated 09.02.1996 which has been upheld by the Tribunal to that extent and only recovery from salary has been quashed. The respondents in compliance have rightly stated that non-entitlement of salary for the aforementioned period will be as per order dated 09.02.1996.
The learned counsel for the petitioner has relied upon the judgment of this Court in Special Appeal No. 186 of 13, Kshetrapal Singh Versus State of U.P. and others, decided on 31.07.2013, decision in Writ Petition No. 1583 of 2004, Union of India through Secretary Department of post and other Versus Chandra Shekhar Pandey and Supreme Court's judgment dated 02.07.2013 passed in Civil Appeal No. 5527 of 2012, State of U.P. Versus Dayananad Chakravarti.
The aforementioned judgments do not help the petitioner in any way as the facts are entirely different and on different subjects. The Supreme Court's judgment pertains to the employees of the Nigam regarding the age of superannuation, Chandra Shekhar Pandey's case (supra) pertains to extra departmental Branch Post Master and Kshetrapal's Judgment pertains to when fresh enquiry would be conducted and the entitlement of salary would depend upon the out come of the fresh enquiry. In the fresh enquiry, the recovery was ordered and it was held that the petitioner had absented himself unauthorizedly and was not entitled for the payment of salary for the said period.
The Tribunal had only set aside the recovery sought to be made from the salary and the other findings of the enquiry was upheld. It is on the basis of the Tribunal's direction and the orders passed by this Court, the impugned order only reiterates the earlier order dated 09.02.1996 for not making payment of salary for the aforementioned period.
Hon'ble the Apex Court in the case of Maharashtra v. Reshma Ramesh Mehere & another, (2008) 8 SCC 664, in paragraph No. 24 held as under:-
"It is true that once the order of termination of service of an employee is set aside, ordinarily the relief of reinstatement is available to him. However, the entitlement of an employee to get reinstated does not necessarily result in payment of full or partial back- wages, which is independent of reinstatement. While dealing with the prayer of back-wages, factual scenario, equity and good conscious, a number of other factors, like the manner of selection; nature of appointment; the period for which the employee has worked with the employer etc.; have to be kept in view. All these factors and circumstances are illustrative and no precise or abstract 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 the each case."
Hon'ble the Supreme Court in the case of J.K. Synthetics Ltd. v. K.P. Agrawal & another, (2007) 2 SCC 433 in paragraph Nos. 15 to 18 held as under:
"15. But the manner in which 'back-wages' is viewed, has undergone a significant change in the last two decades. They are no longer considered to be an automatic or natural consequence of reinstatement. We may refer to the latest of a series of decisions on this question. In U.P. State Brassware Corpn. Ltd. vs Udai Narain Pandey [2006 (1) SCC 479], this Court following Allahabad Jal Sansthan Vs. Daya Shankar Rai [2005 (5) SCC 124], and Kendriya Vidyalaya Sangathan vs. S.C. Sharma[2005 (2) SCC 363] held as follows :"
"A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance."
No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of section 6- N of the U.P. Industrial Disputes Act.. While granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages cannot therefore be the natural consequence. In General Manager, Haryana Roadways vs. Rudhan Singh [2005 (5) SCC 591], this Court observed :
"There is no rule of thumb that in every case where the Industrial Tribuanl gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year."
In U.P. State Brassware Cropn. Ltd. (supra), this Court observed:
18. Coming back to back-wages, even if the Court finds it necessary to award back-wages, the question will be whether back-wages should be awarded fully or only partially (and if so the percentage). The depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding backwages, in addition to the several factors mentioned in Rudhan Singh (supra) and Udai Narain Pandey (supra). Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may. emphasis supplied) In the case of A.P. SRTC & another v. S. Narsagoud, (2003) 2 SCC 212, Hon'ble the Supreme Court while considering the matter in respect of the grant of back wages held that it is found that when an employee remains unauthorizedly absent from duty, he cannot claim the relief though he has been reinstated in service.
The law on the subject is clear that there is no automatic payment of backwages. In the facts of the present case, the petitioner was reinstated after his termination was set aside but there was no orders pertaining to payment of back wages which was left to the out come of the on going enquiry against the petitioner and after enquiry petitioner was found guilty of being absenting unauthorizedly without leave and permission. The Tribunal has upheld the out come of the enquiry except recovery from pay. The authorities have rightly passed the impugned order declining to make payment for salary for the period 1978 to 1990 as the petitioner had unauthorizedly absented himself from duty without leave and permission. This Court is also not inclined to grant the relief as there is no pleading that the petitioner was not gainfully employed or engaged in gainful business or venture and that he did not have any income and further there is no explanation regarding his unauthorized absence.
The writ petition is devoid of merits and is accordingly dismissed.
No order as to costs.
Order Date :- 11.2.2014 kkm/