JUDGMENT B.S. Chauhan and Arun Tandon, JJ.
1. Heard Sri Rajeev Mishra, Advocate holding brief of Sri Samir Sharma, Advocate on behalf of appellant and Sri H.N. Shukla, Advocate on behalf of petitioner-respondent.
2. This special appeal has been filed against the judgment and order of the Hon'ble Single Judge dated 11th February, 1994 passed in Civil Misc. Writ Petition No. 24341 of 1988 (Daya Shanker Dubey v. U.P. State Road Transport Corporation through its Managing Director, Lucknow and Ors.), whereby Hon'ble Single Judge has qushed the order dated 10th July, 1988, and has allowed the writ petition.
3. The facts giving rise to the present special appeal are as follows:
Petitioner-respondent Daya Shanker Dubey, was appointed as Conductor in U.P. State Road Transport Corporation (herein after referred to as the 'UPSRTC') in 1973. In respect of an incident, which took place on 12th January, 1971, he was placed under suspension pending departmental enquiry. He was reinstated under an order dated 17th April, 1973 after conclusion of the departmental enquiry, wherein punishment, (a) forfeiting the difference of salary for the period of suspension, (b) recording of adverse entry in the character roll of the petitioner, and (c) for recovery of the loss caused to the State Government, was imposed. Petitioner made a representation against the order of forfeiture of the salary amount before the Deputy General Manager. Under the letter dated 7th December, 1973 passed by the Regional Manager, the representation was allowed on the ground that opportunity of hearing has not been afforded to the petitioner by the Corporation before taking such decision. However, liberty to pass a fresh order in accordance with law was granted. The Corporation accordingly issued a notice to the petitioner dated 17th December, 1973 calling upon the petitioner to show-cause as to why difference of salary for the period of suspension be not forfeited. In pursuance to the show-cause notice so issued, the petitioner did not submit any reply nor joined the duty.
4. Petitioner filed a Civil Suit No. 252 of 1974 in the Civil Court, Mirzapur challenging the order of punishment dated 17th April, 1973. With the enforcement of U.P. Public Services Tribunal Act, the suit was transferred to the UP. State Public Service Tribunal and was registered as Claim No. 136/T(1)/78. The learned Tribunal dismissed the claim petition so filed vide judgment and order dated 25th October, 1979. Against the said judgment and order, the petitioner-employee filed a writ petition before this Court, which was also dismissed by the Division Bench vide judgment and order dated 4th September, 1980. After more than 7 years of the aforesaid judgement, petitioner-employee filed a writ petition before this Court being Civil Misc. Writ Petition No. 19201-A of 1987 alleging therein that he has not been permitted to join in pursuance to the order dated 17th April, 1973 referred to above and therefore, claimed reinstatement with full back wages. UPSRTC filed a counter affidavit and amongst others specifically stated that the petitioner has been absconding, he was gainfully employed elsewhere for more than 14 and half years and during that period, he has not actually worked in the employment of the Corporation. The Division Bench of this Court, however, disposed of the writ petition vide judgment and order dated 11st April, 1988, after observing that the petitioner may be paid salary and other emoluments from April, 1987 till date. The future salary was also directed to be paid qua the arrears of salary as claimed by the petitioner-employee for the period prior to April, 1987, it was directed that he may make a representation before the Deputy General Manager of UPSRTC, who inturn was directed to decide the same. Petitioner was directed to join at Allahabad within three weeks.
5. In pursuance to the judgement and order of the Division Bench of this Court referred to above, the petitioner filed a representation seeking salary for the period 1973 to 1987, that for a period of more than 14 years, the representation so made was rejected by the competent authority vide order dated 10th July, 1988. Feeling aggrieved by the aforesaid order, petitioner filed Civil Misc. Writ Petition No. 24341 of 1988. The writ petition has been allowed and the order dated 10th July, 1988, was quashed, under judgement and order dated 11 February, 1994. The Corporation has been further directed to pay back wages to the petitioner-employee for the period 18thJanuary, 1971 to 31st March, 1987. Against this judgement of the Hon'ble Single Judge, UP. State Road Transport Corporation has preferred Special Leave Petition No. 3589 of 1995, before the Hon'ble Supreme Court, which has been dismissed with the observation that the Corporation had the remedy by way of Intera Court Appeal (Special Appeal) before the Hon'ble High Court. Accordingly the present special appeal has been filed. The delay in filing of the present special has already been condoned under order of this Court dated 7th April, 1999.
6. Learned Counsel appearing for the appellant submits that from the records of the first writ petition filed by the petitioner-respondent (dismissed in 1980), as also from Civil Misc. Writ Petition No. 24341 of 1988 and from the records of the present special appeal, it is established beyond doubt that the petitioner did not make any application for his being permitted to join subsequent to the order of reinstatement dated 17th April, 1973 for years together. Now it is stated that the petitioner took 14 and half years to approach this Court alleging therein for the first time that he has not been permitted to join the duty, despite his willingness to do so. It is further pointed out that from the records it is established that first application was made by the petitioner for being permitted to join is dated 13th November, 1981 (a copy whereof is already on record of writ petition No. 19201 of 1987. In the said application, there is an admission on behalf of the petitioner that he has not joined the duty under the hope that charges levelled against the petitioner will be set aside by the Court but he did not succeed. He therefore, submits that while passing the impugned judgment, the Hon'ble Single Judge was not justified in recording a finding that the petitioner has not been permitted to join by the Corporation. He further points out that there has been no explanation whatsoever on the part of the petitioner in respect of delay of 14 and half years in approaching this Court for reinstatement as well as for not seeking such a relief in his first writ petition, which was dismissed in 1980. This is in itself sufficient to establish that during this period petitioner had himself not worked with Corporation. The judgment and order of the Hon'ble Single Judge directing full payment of salary to the petitioner-employee is therefore, legally not justified. Even otherwise, it is contended that the issue as to whether the petitioner had reported for duties and had not been permitted to join between 1971 to 1987 is purely an issue of fact, which could not have been examined and decided by the Hon'ble Single Judge in writ jurisdiction under Article 226 of the Constitution of India. Remedy, if any, available to the petitioner-employee in that regard was by way of reference under Section 4-K of the Industrial Disputes Act. Which according to the appellant would also be barred in view of laches and inordinate delay.
7. Sri H.N. Shukla, learned Counsel appearing for the petitioner-respondent on the contrary submits that the Division Bench of this Court while deciding the Writ Petition No. 19201-A of 1987, had held that the petitioner was not absconded, nor has been punished, and therefore, he was directed to be reinstated, the corporation cannot be permitted to reopen the final judgment of the Division Bench judgment of this Court, and to allege that the petitioner-employee had refused to join the Corporation or was gainfully employed elsewhere. He therefore, submits that the order of the Hon'ble Single Judge may not be interfered with.
8. At the very outset, we may record that the issue as to whether an employee has been gainfully employed and has not been reported for duties specifically in respect of a case like at hand, where an employee has taken more than 14 and half years to approach this Court, cannot be examined by this Court under Article 226 of the Constitution of India. These issues of facts need examination of oral as well as documentary evidence and can be more appropriately tried by a Labour Court on a reference under Section 4-K of the U.P. Industrial Disputes Act.
9. In such circumstances, we are of the firm opinion that the Hon'ble Single Judge was not justified in entertaining the present writ petition and granting the relief as has been prayed, in favour of the petitioner-employee.
10. Even otherwise, we may record that from the application made by the petitioner dated 13th November, 1981 enclosed as Annexure-6 to the writ petition No. 19201 of 1987, it is apparently an admitted case of the petitioner that he had not joined the service under the hope that the charges levelled against him will be set aside by the Court, but he did not succeed. Hence he made the application in 1981 for the first time with prayer that he may be given charge of his duties and the amount of salary during the suspension period may also be paid to him. Relevant paragraphs of the application as well as prayer clause of this application are being reproduced herein below:
That the applicant has not yet joined the service and was under hope that the charges levelled against him will be set aside by the Court but he did not succeed, hence, this application.
Prayer.
It is, therefore, most respectfully prayed that the office of the Corporation at Mirzapur be directed to give charge to the applicant of his duties and the amount of the salary during the suspension period may also be paid to the applicant at an early date in the interest of justice.
11. From the aforesaid, it is apparently clear that it was not the case of the petitioner-employee upto the year 1981 that he has been refused reinstatement or joining by the Corporation, as a matter of fact he admits that he did not join the service for the reasons disclosed in aforesaid quoted paragraph. However, the prayer made in the application also reflects that the petitioner did not ask for salary for the period he had been absent i.e. since 1973. The petitioner also did not seek any such relief in the first writ petition which was filed in 1979/1980 against the order of Tribunal and has been dismissed. The aforesaid facts are in themselves sufficient to establish that the petitioner had not reported for duties on his own and therefore, did not perform his duties with the Corporation. Even after making the application dated 13th November, 1981, he has taken more 7 years to approach this Court by means of Civil Misc. Writ Petition No. 24341 of 1988, in respect of the said period for which there is little or no explanation available on record.
12. In the totality of the circumstances, as noticed herein above, we may record that the petitioner has actually not worked in the employment of the Corporation between 1973 to 1987 and therefore, he is not entitled for any salary for this period on the principle "No Work, No Pay".
13. The findings recorded by the Hon'ble Single Judge under the impugned judgment are based on no evidence and are an outcome of mere survives and conjunctures. The Hon'ble Single Judge has failed to appreciate that the Division Bench of this Court vide order dated 11St April, 1988 while directing the reinstatement of the petitioner (without recording any finding as to whether the petitioner was absconding or not), permitted him to make a representation qua salary for the period 1973 to 1987. The representation made by the petitioner had been rejected on facts, which should never be dealt with by the Hon'ble Single Judge, as has been done in the facts of the case.
14. We have serious doubts as to how the Court could have directed reinstatement in a writ petition filed after more than 14 and half years Joy an employee without recording any finding as to whether any attempt was made by the employee to resume his duties and as to whether he had actually absconded from service or not. However, we cannot reopen the said controversy, as the direction has been issued by being a Coordinate Bench.
15. Accordingly the impugned judgment and order of the Hon'ble Single Judge dated 11th February, 1994 passed in Civil Misc. Writ Petition No. 24341 of 1988 cannot be legally sustained and is hereby quashed.
The Special Appeal is accordingly allowed. No order as to costs.