Ali Hussain vs State of U.P. and Others

Pankaj Mithal, J.—The one and the only question which arises and has been raised in this petition under Article 226 of the Constitution of India is whether the Petitioner whose termination was set aside is entitled to back wages for the period from the date of his termination till his reinstatement even though he had not worked during this period.

The Petitioner Ali Hussain has joined P.A.C. on 27.10.1966. On 22.5.1973 a Case Crime No. 506/73 was registered against him on account of his participation in the P.A.C. revolt of 1973. In the Sessions Trial No. 556/74, State v. Ram Awadh and others, the Petitioner was acquitted on 23.12.1981 of the criminal charges. The State Government filed an appeal No. 2262/82 against his acquittal. The appeal was dismissed by the High Court vide judgment and order dated 21.12.1992. Further, the SLP of the State Government in the Hon''ble Supreme Court was also dismissed on 4.8.1994. In the meantime due to his involvement in revolt, the Inspector General of P.A.C., Bareilly dismissed him from service on 14.11.1973. The termination order was challenged by the Petitioner before U.P. State Public Services Tribunal. The claim of the Petitioner was dismissed on 20.1.1981. Against the order of the Tribunal, the Petitioner filed a Writ Petition No. 8063/81. The said writ petition was partly allowed by the High Court vide judgment and order dated 18.3.1998. The High Court set aside the order of the Tribunal dismissing the claim of the Petitioner and quashed the order of dismissal of the Petitioner dated 14.11.1973 with the direction to reinstate the Petitioner in service within two months but no direction was given for payment of back wages rather the matter of payment of back wages was relegated for decision to the State Government, i.e., Dy. Director General of P.A.C., Lucknow. In pursuance of the order of High Court, the Petitioner was reinstated on 7.10.1998 and his representation for back wages from 14.11.1973 up to 7.10.1998 was rejected vide order dated 20.2.2003 on the ground that since the Petitioner had not worked during the aforesaid period he is not entitled for any back wages.

The Petitioner has, therefore, challenged the order dated 20.2.2003 rejecting his representation for back wages and has prayed for payment of back wages for the period 14.11.1973 to 7.10.1998. The Petitioner by an amendment which was allowed on 3.7.2006 has also challenged the Government order dated 15.4.2004 which provides for non-payment of back wages to all P.A.C. personnel whose services were terminated on account of their participation in the P.A.C. revolt of 1973 but were subsequently reinstated on the principle of ''No work No pay''.

I have heard Sri Bipin Bihari, learned Counsel appearing for the Petitioner and learned standing counsel.

Learned Counsel for the Petitioner has argued that once the termination order of the Petitioner has been set aside on merit, the Petitioner is entitled to be reinstated in service with full back wages and there is no justification for denying the payment of back wages as there was no fault on the part of the Petitioner. Learned Counsel for the Petitioner further contended that in similar circumstances in a very large number of cases relating to P.A.C. revolt of 1973 itself many of the employees have been reinstated with full benefits of service and back wages. Therefore, the action of the Respondents in not awarding back wages to the Petitioner is arbitrary and discriminatory in nature. On the other hand, learned standing counsel has submitted that the Petitioner has not worked for the period from 14.11.1973 to 7.10.1998 and therefore he cannot be paid back wages for the said period. Moreover, the Petitioner has no where pleaded in the writ petition that he was not gainfully employed elsewhere during that period and as such he is not entitle to any relief with regard to back wages. Learned standing counsel has placed reliance upon two decisions of this Court wherein in respect of P.A.C. revolt of 1973 similarly situate employees were refused relief with regard to payment of back wages.

The law with regard to the payment of back wages on reinstatement has undergone a sea change. Previously, direction to pay full back wages on reinstatement used to be a regular feature. However, lately a pragmatic approach had been adopted and it has been laid down that the payment of full back wages is not mechanical and automatic and no precise formula can be laid down for awarding back wages and it would depend upon the facts and circumstances of each case. Hon''ble Supreme Court in one of the latest decision U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, after considering all previous decisions in this regard observed that the payment of full back wages which used to be normal result of reinstatement is not automatic nor it should be granted mechanically only for the reasons that the termination was held to be invalid. A similar view was expressed by Hon''ble Supreme Court in M.L. Binjolkar Vs. State of Madhya Pradesh, wherein it was observed as follows:

The earlier view was that whenever there is interference with the order of termination or retirement, full back-wages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors and the Court has to weigh the pros and cons of each case and to take a pragmatic view....

In Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd. and Others, it has been held that though the relief of reinstatement with continuity in service can be granted when termination is found to be invalid, it does not lay down in absolute terms that the right to claim back wages must necessarily follow reinstatement in service.

Hon''ble Supreme Court followed the above decision in Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya and Another, , and emphasized that in granting the relief of back wages application of mind is imperative. In other words, the payment of full back wages cannot be a natural consequence of reinstatement.

In the case of Andhra Pradesh State Road Transport Corporation (A.P.S.R.T.C.) and Others Vs. Abdul Kareem, Hon''ble Supreme Court even denied continuity of service to the employee who was directed to be reinstated with continuity in service but without backwages.

It has further been laid down in Allahabad Jal Sansthan Vs. Daya Shankar Rai and Another, as under:

A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can be granted or denied. The labour court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration. It is not in dispute that Respondent 1 herein was appointed on an ad hoc basis ; his services were terminated on the ground of a policy decision, as far back as on 24.1.1987. Respondent 1 had filed a written statement wherein he had not raised any plea that he had been sitting idle or had not obtained any other employment in the interregnum. The learned Counsel for the Appellant, in our opinion, is correct in submitting that a pleading to that effect in the written statement by the workman was necessary. Not only no such pleading was raised, even in his evidence, the workman did not say that he continued to remain unemployed. In the instant case, the Respondent herein had been reinstated from 27.2.2001.

In the present case, the Petitioner has nowhere pleaded in the writ petition that he was sitting idle and was not gainfully employed during that period for which he is claiming back wages. The Petitioner has not even disclosed any where as to how he spent the said period and as to how he was able to manage his affairs for all these years without being employed elsewhere or doing any business etc. A faint and a vague attempt has been made by filing a supplementary affidavit stating in one sentence that after termination of service, the Petitioner was nowhere gainfully employed. However, the said averment in the supplementary affidavit is not enough and sufficient pleading to establish beyond doubt that the Petitioner had remained unemployed or without work or was not having any income during the period 14.11.1973 to 7.10.1998. It is absolutely beyond imagination to believe that the Petitioner had not been gainfully employed elsewhere for about 25 years continuously.

It was the cardinal duty of the Petitioner to have established beyond doubt that he was not gainfully employed during the period in dispute and the burden to prove the same was upon him only as it has been held by Hon''ble Supreme Court in State of M.P. and Others Vs. Arjunlal Rajak, , as follows:

The onus to prove that he had completed 240 days of work or he had not been gainfully employed within the said period was on the workman.

A similar view was also expressed in State of Madhya Pradesh Vs. Rameshwar, and it was laid down that initial burden lies upon the employee to prove that he was not gainfully employed and since the employee had neither pleaded nor placed any material to establish that he was not gainfully employed. It was not proper to grant back wages.

It is settled principle of law that the party has to plead his case and produce material to substantiate his pleadings and in the absence of the pleadings or incomplete pleadings, the Court is under no obligation to consider the point which has not been taken and substantiated. In Bharat Singh and Others Vs. State of Haryana and Others, Hon''ble Supreme Court observed that in a writ petition, the Petitioner must plead and prove relevant facts by evidence. If the facts are not pleaded and the evidence in support of such facts is not brought on record, the Court is not bound to entertain the point so raised in as much as in a writ petition not only the facts are required to be stated but the evidence in support thereof is also required to be pleaded and brought on record.

In M/s. Atul Castings Ltd. Vs. Bawa Gurvachan Singh, the Hon''ble Apex Court observed as under:

The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law.

In view of the above facts and dictum of law, in the absence of proper pleadings and material in support, it cannot be accepted that the Petitioner had remained unemployed and without any work for about 20 years so as to entitle him back wages for the period in dispute.

In support of his averments, learned Counsel for the Petitioner has placed reliance upon the decision of Hon''ble Supreme Court in the case of Ramesh Chander and Ors. v. Delhi Administration and others 1996 (15) SCSR 726: 1997 (1) AWC 2.28 (SC) (NOC). The said judgment and order of Hon''ble Supreme Court is distinguishable and has no application in the facts and circumstances of the present case as in that case reinstatement was ordered with back wages and all other consequential benefits on the ground of discrimination as some other similarly situate employees were given the benefit of back wages. However, in the present case, the High Court while, setting aside the order of termination has only directed for reinstatement without any order of payment of back wages. The point of discrimination, if at all was available to the Petitioner at that time, but it was not raised or if raised was not considered and decided in his favour. Therefore, the point of discrimination is not available to the Petitioner in this writ petition being barred by principles of constructive res judicata as enshrined by Section 11 Order II, Rule 3, Code of CPC The learned Counsel for the Petitioner has also placed reliance upon few decisions of the High Court wherein directions were issued for payment of back wages to the similarly situate P.A.C. personnel who have participated in the P.A.C. revolt of 1973. However, the said judgments and orders of the High Court are of no help to the Petitioner as in all of them directions were issued while setting aside the termination order for not only of reinstatement but for payment of back wages. In some cases, back wages were given under the threat of contempt of Court. Therefore, there is no discrimination.

Learned Counsel for the Petitioner has also relied upon another case of Hon''ble Supreme Court in Union of India etc. v. K. V. Jankiraman etc. 1991 (5) SLR 602: AIR 1991 (2) SC 2010, wherein it has been observed that the normal rule of "no work no pay" is not applicable where the employee was willing to work but was kept away from the work by the authorities and there was no fault on the part of the employee. The said case law is of no help to the Petitioner as it does not provide that in every case of reinstatement where there is no fault of the employee, the payment of back wages should be made. The High Court in its wisdom has not directed for payment of back wages and has left the matter at the discretion of the authority and the authority on due consideration on the principle of "no work no pay" and the policy decision had refused to award back wages. Therefore, the decision cannot be faulted with unless it is established to be arbitrary and unreasonable.

On the other hand, learned standing counsel has placed reliance upon the decision of this Court in Writ Petition No. 3676 of 2003, Ram Briksha Singh and Others Vs. State of U.P. and Others, . This matter also related to the similarly situate P.A.C. personnel wherein their claims for back wages were rejected even by the High Court as they had not pleaded that they were not gainfully employed for the period of which they were claiming the back wages, particularly, when there was no direction by the Court earlier for their reinstatement with full back wages.

In view of the above discussions and the facts that the Petitioner has failed to plead and prove that he was not gainfully employed from 14.11.1973 to 7.10.1998, the Petitioner is not entitled for payment of back wages as of right particularly when the Court in its wisdom had not exercised the discretion in his favour at the time when his writ petition against the order of termination was allowed in part. As there was no direction for payment of back wages therein on reinstatement and the claim for back wages has been rejected by the authorities on a uniform and a rational policy decision, it would not be proper to interfere in exercise of writ jurisdiction. Moreover, even in equity it would not be proper after 33 years to award back wages to the Petitioner for the period of 25 years, i.e., between 14.11.1973 to 7.10.1998 specifically when it is admitted that the Petitioner has not worked during the above period.

The writ petition, therefore, lacks merit and is, hereby, dismissed.