Court No. - 39
Case :- WRIT - A No. - 38698 of 2015 Petitioner :- Than Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- D.K. Singh,V.K. Singh Counsel for Respondent :- C.S.C.,Jyoti Prakash
Hon'ble Ashwani Kumar Mishra,J.
1. This writ petition is directed against an order dated 9.4.2015, contained in Annexure-4 to the writ petition, whereby petitioner has been denied continuity of service and back wages for the period in question.
2. Shorn of unnecessary details, the facts relevant are that there exists an institution known as Sri Prahlad Smarak Inter College Chaupla, Etawah (hereinafter referred to as 'the institution') recognized under the provisions of the U.P. Intermediate Education Act, 1921. The institution was a Junior High School till the year 1982. It was upgraded to High School level in 1983. Petitioner claims to have been appointed on 1.7.1982 when the institution was a Junior High School. His services were later regularized by an order of the Inspector on 27.2.1985.
3. It appears that with the change of Management of the institution in 1994 the services of petitioner were terminated on 2.7.1996, on the ground that petitioner's appointment was dehors the rule since petitioner was related to the then Principal/Manager of the institution. It was also alleged that petitioner had manipulated records and he also remained unauthorizedly absent from 1994 onwards. The order of termination was challenged by filing Writ Petition No.26482 of 1996. The writ petition was decided on 14.7.2005 requiring the authorities to re-visit the issue. The District Inspector of Schools, however, approved the termination vide his order dated 1.2.2006. It is against this order dated 1.2.2006 that petitioner preferred Writ Petition No.15746 of 2006. This writ petition has been allowed vide judgment annexed as Annexure-3 to the writ petition. This Court specifically reversed two out of the three grounds taken to terminate the petitioner i.e. appointment of petitioner was dehors the rule and also that petitioner had manipulated documents. It was only with respect to the third charge relating to unauthorized absence that the matter was remitted to the Inspector for a fresh consideration. The Inspector, accordingly, has examined the issue and passed the order dated 9.4.2015, which is impugned in this petition. This order records that petitioner would not be entitled to continuity in service as also back wages since one Sobaran Singh, who was substantively appointed as Peon, had been promoted to the post of Clerk and had actually worked during the period of petitioner's absence. The order therefore records that two persons cannot be paid salary against one post.
4. The order is assailed by contending that petitioner's termination has already been set aside by this Court and the limited issue that required consideration was with respect to the alleged unauthorized absence. It is stated that no substantive appointment against the post held by petitioner was made and the officiating promotion granted to Sobaran Singh was with the specific condition that it shall remain subject to the pending writ petition. Learned counsel for petitioner further submits that plea of unauthorized absence has otherwise not been substantiated, and therefore denial of salary as well as continuity of service, in the facts and circumstances, is wholly unjustified.
5. Learned Standing Counsel, on the other hand, submits that salary out of State funds has actually been paid to Sobaran Singh on the post in question while petitioner remained out of service, and therefore, it would not be appropriate for the State to release salary to two persons against one post.
6. Facts, as have been narrated above, are not in issue. It is apparent that the order of termination dated 2.7.1996 was immediately challenged by filing writ petition before this Court. The subsequent Writ Petition No.15746 of 2006, challenging the grant of approval to termination has already been allowed. While disposing of the writ petition, this Court observed as under on 4.8.2014 in Writ Petition No.15746 of 2006:-
"However, in the present matter, the counter affidavit has also been filed by the committee of management and clearly supporting the claim of the petitioner with categorical averment that the petitioner was initially inducted on 01.07.1982 and at that point of time the Institution was junior high school and there were no service rules in respect of class-III and class-IV employees and for the first time in the year 1984 rules were framed for providing service conditions for class-III and class-IV employees.
It is highly important to mention that while passing the impugned order dated 01.02.2006, the DIOS Etawah has categorically noticed to the extent that petitioner was inducted in the Institution on 01.07.1982 and on account of certain administrative and financial irregularities, he was placed under suspension and finally his services were terminated. This is admitted situation that there were no regulation for class-III and class-IV employees at relevant point of time and further there were no occasion to make any observation by the DIOS regarding relation of the petitioner to the then principal of the Institution or the management. So far as financial irregularity part is concerned, he had already been acquitted in the criminal proceedings. Therefore, at this stage, only with regard to third charge which deals to the absence of petitioner from the Institution is to be looked upon by the DIOS and other two issues have already been set at rest as indicated above.
In view of above, the impugned order dated 8.7.96 passed by the respondent No. 3 and the order dated 1.2.06 passed by the respondent No. 2 are unsustainable and are hereby quashed.
The matter is remanded back to the District Inspector of Schools to look into the matter and decide the claim of the petitioner afresh strictly as stated above and in accordance with law, preferably within a period of three months from the date of production of a certified copy of this order after affording opportunity to the necessary parties.
With the aforesaid observation, the writ petition is disposed of."
7. It was only with respect to the plea of unauthorized absence that the matter was required to be considered, afresh. The District Inspector of Schools in his order dated 9.4.2015 has returned a categorical finding that petitioner's absence was not unauthorized, inasmuch as the school had closed for Diwali vacation, whereafter the petitioner had fallen sick and had furnished intimation in that regard to the management. It is clearly observed that since leave was otherwise available to the petitioner, therefore, the authorities ought to have accepted the application submitted by petitioner for sanction of leave, instead of terminating his services. This order of Inspector dated 9.4.2015 is not challenged by the Managing Committee.
8. In view of the findings contained in the order of Inspector, referred to in the above paragraph, none of the three grounds survived to deny the relief claimed by petitioner. The termination order has otherwise been found unjustified by this Court on the first two grounds i.e. appointment being dehors the rules and on account of manipulation/stealing of relevant records. The Inspector having found the absence not to be unauthorized is not justified in denying relief of reinstatement alongwith continuity of service to the petitioner. The order of Inspector dated 9.4.2015, in so far as it denies continuity of service alongwith back wages to the petitioner, therefore, cannot be sustained and is set aside. The petitioner is held entitled to continuity of service from the date his services were terminated.
9. So far as the denial of back wages is concerned, learned counsel for the petitioner submits that petitioner was prevented by the Management from working in the institution, and once the termination itself is set aside, the denial of wages for such period would be wholly arbitrary. Sri H.P. Sahi, learned counsel for the petitioner, places reliance upon a judgment of the Apex Court in the case of Raghubir Singh Vs. General Manager, Haryana Roadways, Hissar, (2014)10 SCC 301, wherein following observations are made by the Apex Court in para 42 and 43:-
"42. Now, it is necessary for this Court to examine another aspect of the case on hand, whether the appellant is entitled for reinstatement, back wages and the other consequential benefits. In the case of Deepali Gundu Surwase V. Kranti Junior Adhyapak Mahavidyalaya (D. Ed) and Ors., this Court opined 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.
23. A somewhat similar issue was considered by a three Judge Bench in Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd. (supra) (SCC pp. 85-86, paras 9 &11):
9 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.
11. In the very nature of things there cannot be a strait-jacket 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.
24. Another three Judge Bench considered the same issue in Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi (supra) and observed (SCC p. 447, para 6):
6. 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. 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."
(Emphasis supplied by this Court) 43. The above critical analysis of law laid down by this Court in the case referred to supra, is very much relevant to the case on hand, which is neither discussed nor considered and examined by the courts below while answering the reference made by the State Government and passing the award, judgments & orders in a cavalier manner. Thus, the lives of the appellant and his family members have been hampered. Further, on facts, we have to hold that the order of termination passed is highly disproportionate to the gravity of misconduct and therefore shocks the conscience of this Court. Hence, we hold that the appellant is entitled for the reliefs as prayed by him in this appeal."
10. The contention advanced on behalf of petitioner appears convincing at the outset but a deeper examination persuades the Court to accept it in part only. It is not in dispute that payment of salary in the institution concerned is disbursed by the State under the provisions of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971. The post of Assistant Clerk being one, the State is required to release salary only against one post. After the order of termination was passed by the authority concerned it was Sobaran Singh who was granted conditional promotion and he actually worked as Assistant Clerk and also drew salary. It would be unjust for this Court to direct recovery of the salary for the post of Clerk from Sobaran Singh, as he has admittedly worked during this period. In the absence of post it would not be open for this Court to direct salary for the period during which petitioner was prevented from working as it would amount to payment of salary to two persons against one post. The petitioner would also be justified in complaining about denial of salary since he was prevented from working, although he was available for work. The equities, therefore, needs to be balanced.
11. Having considered all such aspects, this Court is of the opinion that while granting relief of reinstatement alongwith continuity of service, the petitioner is entitled to be adequately compensated in lieu of denial of back wages for the period in question. A consolidated sum of Rs.2 lacs towards back wages would be paid to the petitioner by the State. It would, however, be open for the State to recover such amount from the then Management responsible for illegally denying work to petitioner. The petitioner would also be entitled to correct fixation of his salary etc. on account of continuity in service. The needful action at the level of respondents would be undertaken within a period of three months from the date of presentation of certified copy of this order.
12. Writ petition, accordingly, is allowed. No order is passed as to costs.
Order Date :- 29.11.2019 Anil