Anita Nainwal vs District Judge, Pauri Garhwal

U.C. Dhyani, J. (Oral)—By means of present writ petition, the petitioner seeks following reliefs, among others:

(i) Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 01.01.2013, passed by District Judge, Pauri Garhwal (copy Annexure 7 to the writ petition).

(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondent to release the entire back wages in favour of the petitioner with penal rate of interest from the date of her termination till the date of her reinstatement.

It is a case of an employee of judgeship of Pauri Garhwal, who was given compassionate appointment after the death of her husband on 10.08.2006. When the matter relating to release of general provident fund of the deceased employee was being discussed in the chamber of the then learned District Judge, Pauri Garhwal on 14.09.2016, in the presence of the parents of the deceased, allegedly, the petitioner (wife of the deceased) raised the pitch of voice in pursuit of release of funds in her favour and thereby created furore, which, according to the then learned District Judge, amounts to indiscipline and misconduct. As per Annexure-2 to the writ petition, the petitioner-wife was pleading her entitlement to the release of general provident fund in her favour. She was on probation period and was a temporary employee. Perturbed by her behaviour and the language used by the petitioner, her services were terminated with immediate effect vide order dated 14.09.2016. Such an order was passed without conducting enquiry.

Such an order was challenged by the petitioner-wife before this Court. Writ Petition no. 1553 of 2006 (S/S) was decided by learned Single Judge on 28.06.2010 in favour of the petitioner-wife. The petition was allowed. The petitioner was directed to be reinstated, but was held to be not entitled for payment of any back wages from the date of her termination till the date of her reinstatement. It was added in the order that this period would be counted towards her length of service. (copy Annexure 3 to the writ petition).

The aforesaid judgment was challenged before Hon''ble Division Bench of this Court in Special Appeal no. 147 of 2010. The Hon''ble Division Bench allowed the appeal vide order dated 26.11.2010, setting aside that part of judgment and order, whereby it was directed that the appellant shall not be entitled to back wages from the date of her termination till the date of her reinstatement and directed the appointing authority to ascertain whether the appellant is entitled to such back wages or not? (copy Annexure 4 to the writ petition).

Appointing Authority, in compliance thereof, applied the principle of ''No work No pay'' and also relied upon a decision of Hon''ble Apex Court, in the case of Inderjit v. State of Punjab and another, reported in 2010 (12) SCC 529, holding that the petitioner-wife was not entitled to any back wages. This order was passed on 07.04.2011 (copy Annexure 5 to the writ petition).

Again aggrieved with the same, the petitioner approached this Court by way of filing Writ Petition no. 512 of 2011 (S/S). The writ petition was allowed by this Court. Impugned order dated 07.04.2011, passed by learned District Judge, Pauri Garhwal was set aside. The matter was remanded back to the learned District Judge for a decision afresh in the light of the directions given by the Hon''ble Division Bench of this Court vide order dated 26.11.2010. In compliance of the aforesaid judgment and order dated 27.06.2012, passed by learned Single Judge of this Court, in Writ Petition no. 512 of 2011 (S/S), the successor District Judge passed an order on 01.01.2013, relying upon yet another decision of Hon''ble Division Bench of this Court passed in Special Appeal No. 97 of 2011, Devendra Singh Bisht v. Uttaranchal High Court, through its Registrar and another, after describing the history of the case, dismissed the application of the petitioner-wife for release of back wages. The District Judge was primarily weighed by the fact that the petitioner misbehaved with the then District Judge one month after her appointment on compassionate ground. She was, therefore, not held to be entitled to back wages.

Now, order dated 01.01.2013, passed by the District Judge, Pauri Garhwal is under challenge in present writ petition.

Learned counsel for the petitioner relied upon a decision of Hon''ble Apex Court rendered in the case of Union of India v. Madhusudan Prasad, reported in (2004) 1 SCC 43. This Court finds that paragraph nos. 5 and 6 of said judgment are useful in deciding present writ petition. These paragraphs are being quoted herein below for convenience:

"5. It is true that when a reinstatement is ordered in appeal or review, the authorities can pass specific order regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty preceding the dismissal, removal or compulsory retirement, as the case may be. This is an enabling provision and the authorities can consider the relevant facts as to whether the employee should be denied the salary for the period he was kept under suspension preceding the removal, dismissal or compulsory retirement. The counsel for the appellant has placed a reliance on the decision of the Constitution Bench of this Court in Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727, where this Court held that the question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement, if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceeding and depending on the final outcome. If the employee succeeds in the fresh enquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any, and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the enquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh enquiry from the stage of furnishing the report and no more, where such fresh inquiry is held.

The above case was concerning an employee, who was found guilty in an enquiry but the report was not furnished to the employee and the show-cause notice was not served on him. In view of the facts and circumstances of the case, the Court directed that appropriate order should be passed regarding the back wages. In the instant case, the Appellate Authority directed reinstatement of the respondent and held that he was not entitled to get back wages for the period he was out of service. It may be noticed that the respondent was removed from service without any enquiry and he was not even given a show cause notice prior to his dismissal from service. There was fault on the part of the employer in not following the principle of natural justice. These relevant facts were considered and the learned Single Judge and also the Division Bench ordered the payment of back wages. We do not think this is a fit case where the Fundamental Rule 54 could have been invoked by the authorities. We find no merit in the appeal. The appeal is accordingly dismissed."

[Emphasis supplied]

Like Madhusudan Prasad''s case (supra), the instant case is also an illustration of non-observance of principle of natural justice. The petitioner was removed from service without any enquiry and she was not even issued a show cause notice prior to her termination from service, as were the facts of Madhusudan Prasad''s case (supra). The Hon''ble Apex Court did not interfere with the order directing payment of back wages to the respondent. This decision of Hon''ble Apex Court helps the petitioner in the case in hand, as the facts of that case appear to be identical to the present case.

The decision of A.L. Kalra v. Project and Equipment Corporation of India Ltd., (1984) 3 SCC 316, was next placed before this Court. Paragraph 33 of the said decision is important in the context of present petition and is being reproduced herein below for convenience:

"33. When removal from service is held to be illegal and invalid, the next question is whether: the victim of such action is entitled to back wages. Ordinarily, it is well- settled that if termination of service is held to be bad, no other punishment in the guise of denial of back wages can be imposed and therefore, it must as a necessary corollary follow that he will be entitled to all the back wages on the footing that he has continued to be in service uninterruptedly. But it was pointed out in this case that the appellant was employed as Factory Manager by M/s KDR Woollen Mills, A-90, Wazirpur Industrial Area, Delhi from where he resigned with effect from August 8, 1983. It was also submitted that he was drawing a salary of Rs. 2500 per month. Now if the appellant had procured an alternative employment, he would not be entitled to wages and salary from the respondent. But it is equally true that an employee depending on salary for his survival when he is exposed to the vagaries of the court litigation cannot hold on to a slender distant hope of judicial process coming to his rescue and not try to survive by accepting an alternative employment, a hope which may turn out to be a mirage. Therefore, the appellant was perfectly justified in procuring an alternative employment in order to keep his body and soul together as also to bear the expenses of litigation to vindicate his honour, integrity and character."

[Emphasis supplied]

It is the definite statement of learned counsel for the petitioner that the petitioner was not in gainful employment during the period she was out of service. Petitioner was not on alternative employment when she was terminated under the orders of learned District Judge, Pauri Garhwal. In the absence of denial by the other side, this Court finds no reason not to believe such a statement.

The decision rendered by Hon''ble Apex Court in the case of Manorma Verma (Smt) v. State of Bihar and others, 1994 Supp (3) SCC 671, brings down the curtain to settle the controversy of grant of back wages, as highlighted in paragraph 4 of its decision, the relevant portion of which reads as under:

"4. We do not see any justification for the High Court not allowing the appellant back wages after it came to the conclusion that the termination was illegal. Ordinarily, the consequential order of grant of back wages must follow, unless there are reasons on record which would justify a departure from the normal order. We do not see any reasons on record to come to the conclusion that the appellant was not entitled to back wages. There is also nothing on record to show that during the period she was out of service, she was gainfully employed elsewhere. In the circumstances we allow this appeal and set aside that part of the High Court''s order by which the appellant was denied back wages and award her back wages from the date of termination of service till she was reinstated in service under the impugned order of the High Court. The appellant will be paid her back wages within three months from today. There will be no order as to costs.

[Emphasis supplied]

The mandate of Hon''ble Apex Court is, therefore, that ordinarily, the consequential order of grant of back wages must follow, unless there are reasons on record which would justify a departure from the normal practise.

This Court does not see any reason on record to come to the conclusion that the appellant is not entitled to back wages. There is also nothing on record to show that during the period she was out of service, she was gainfully employed elsewhere.

The facts of Devendra Singh Bisht''s case (supra) are more alarming than the facts of present case, inasmuch as, allegedly, the appellant in Special Appeal no. 97 of 2011, titled as Devendra Singh Bisht v. Uttaranchal High Court and another, which pertained to the Judgeship of District Pithoragarh, the appellant was having adulterous relationship with a woman. This allegation was enquired by initiating a disciplinary proceeding against the appellant. The disciplinary proceedings resulted in punishing the appellant, initially by a dismissal order, passed by the disciplinary authority, and later, by an order passed by the appellate authority directing withholding of three increments with cumulative effect. This order reached finality. The finding of fact, therefore, was that the appellant was living in adultery with a woman.

In the instant case, neither the charges levelled against the petitioner are so alarming or grave nor was she subjected to disciplinary proceedings before passing the order of termination from service, by the then learned District Judge, Pauri Garhwal.

The genesis of Devendra Singh Bisht''s case (supra) was a letter written by Civil Judge (Junior Division), Didihat, District Pithoragarh brought to the notice of District Judge, Pithoragarh that the appellant has misbehaved in a drunken condition with people living in the vicinity of the residence of the appellant, and that, he was living in adultery with a woman. The appellant had allegedly held out to the Civil Judge (Junior Division) that he had taken a vow before the God, not to leave that woman. The appellant had also tattooed on his right forearm the name of that woman. The Hon''ble Division Bench of this Court directed reinstatement of the appellant. He was, however, not found entitled to back wages.

Mr. D.S. Patni, learned counsel for the respondent, placed a copy of judgment rendered by Hon''ble Apex Court in Indrajeet Singh''s case (supra). Indrajeet Singh''s case has already been distinguished, as regards its applicability to the facts of present writ petition, in paragraph 16 of the judgment rendered by learned Single Judge on 27.06.2012 in Writ Petition no. 512 of 2011 (S/S). This Court need not do the same exercise again.

However, this Court deems it appropriate to quote relevant paragraphs of Indrajeet Singh''s judgment, as below:

".....................

The appellant was an Ahlmad in the Court of Civil Judge (Junior Division), at Barnala in Punjab. On June, 14, 1996 at about 7.30 p.m., when some of the Judicial Officers made a surprise inspection of the Court premises, they found the appellant, one Chowkidar and a constable at the premises. They found that these persons were drinking alcohol within the court premises. The matter was reported to the District Judge and thereafter an inquiry was conducted and the appellant was found guilty and his services were terminated. The appellant challenged the same by way of Writ Petition before the High Court and the same was dismissed. Aggrieved by the same, he is before this Court by way of this appeal.

.....................

It is pointed out by learned counsel for the appellant that one of the persons, who was on duty at that time along with the appellant herein, though found guilty in the inquiry, has filed an appeal before this Court and this Court allowed his appeal and he was ordered to be reinstated in service vide order dated 4th February 2002 in Civil Appeal No. 943 of 2002. The present appellant was not on duty on that day but he was found at the court premises. Though we deprecate the conduct shown by the appellant, but having regard to the fact that he has to maintain his family and also for the reason that his colleague was reinstated in service, we direct that the appellant be reinstated in service. We make it clear that he is not entitled to any back wages or any other service benefits. He is directed to be reinstated within a period of one month from this date and his previous service may be reckoned only for the purpose of pension. The appeal is disposed of accordingly. No costs.

..........."

[Emphasis supplied]

In the instant case, the petitioner was not found drinking alcohol in court premises. It is not a case of dereliction of duty either.

Otherwise also, Article 19(1)(a) of the Constitution of India prescribes that all citizens shall have the right to freedom of speech and expression.

The petitioner was only airing her grievances before learned District Judge in presence of the parents of her late husband for releasing general provident fund in her favour. By no stretch of imagination, it could be said that she was misbehaving with the District Judge, or had any intention of denigrating the office of the Head of District judiciary. Her right to freedom of speech and expression cannot be curtailed, merely because she was given compassionate appointment. Her right to freedom of speech could not be curtailed merely because she was on probation period and was a temporary employee of the judgeship. The said right is unfettered unless curtailed by reasonable restrictions imposed by the Constitution of India. The furore, if any, created by the petitioner was directed against her in-laws for release of general provident fund in her favour which was being contested by the parents of her late husband. Her grievance before learned District Judge was but natural in the given facts of the case. The intention was not to give disrespect to learned District Judge.

Mr. D.S. Patni, learned counsel for the respondent made a last minute effort to argue that the decisions of Manorma Verma v. State of Bihar and others; A.L. Kalra v. Project and Equipment Corporation of India Ltd; Union of India v. Madhusudan Prasad were applicable to the industrial labours, whereas present writ petitioner is Class III employee of judgeship of District Pauri Garhwal, therefore, the principle of ''No work No pay'' will be applicable to the present case. The reply of learned counsel for the petitioner to the aforesaid argument is that learned Single Judge has already set aside that order in paragraph 18 of the order dated 27.06.2012, passed in Writ Petition no. 512 of 2011 (S/S).

Be that as it may, none of the aforesaid judgments, which have been quoted by this Court in the body of this judgment, carves out a distinction on the applicability of ''No work No pay'' to the classes of employees. In other words, it does not distinguish whether principle of ''No work No pay'' will be applicable to Class IV employee or the Class III employee. Further, it does not distinguish whether the said principle will be applicable only to the industrial labours or not?

Before parting with the case, the Court would like to reproduce Rule 54 of the Fundamental Rules, for benefit of District Judges, here-in-below:

"54. (1) When a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make specific order-

(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal, or compulsory retirement, as the case be; and

(b) whether or not the said period shall be treated as a period spent on duty.

(2) Where the authority competent to order reinstatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired, has been fully exonerated the Government servant shall, subject to the provisions of sub-rule (6), be paid the full pay allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:

Provided that where such authority is of opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of sub-rule (7), be paid for the period of such delay, only such amount (not being the whole) of such pay and allowances as it may determine.

(3) In a case falling under sub-rule (2) the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.

(4) In cases other than those covered by sub-rule (2) [including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of clause (1) or clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held], the Government servant shall, subject to the provisions of sub-rules (6) and (7), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement as the case may be as the competent authority may determine after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection, within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.

(5) In a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specified purpose:

Provided that if the Government servant so desires such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement as the case may be, shall be converted into leave of any kind due and admissible to the Government servant.

NOTE-The order of the competent authority under the preceding proviso shall be absolute and higher sanction shall be necessary for the grant of-

(a) extraordinary leave in excess of three months in the case of temporary Government servant; and

(b) leave of any kind in excess of five years in the case of permanent Government servant.

(6) The payment of allowances under sub-rule (2) of sub-rule (4) shall be subject to all other conditions under which such allowances are admissible.

(7) The amount determined under the proviso to sub-rule (2) or under sub-rule (4), shall not be less than the subsistence allowance and other allowances admissible under rule 53.

(8) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of his removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the Government servant.

NOTE-Where the Government servant does not report for duty within reasonable time after the issue of the orders of reinstatement after dismissal, removal or compulsory retirement, no pay and allowances will be paid to him for such period till he actually takes over charge."

[Emphasis supplied]

The petitioner was nowhere at fault if she was wrongly terminated from service which she gained under the Dying in Harness Rules. Both the parties continued to seek reliefs in one court or another in pursuit of their cases. Finally, the petitioner has the last laugh. The only question to be determined by this Court was whether the petitioner is entitled to back wages or not in the given facts and circumstances of the case? This Court, on the basis of the aforesaid discussion, is of the considered opinion that she is entitled to back wages.

As a consequence thereof, the writ petition is allowed. Impugned order dated 01.01.2013 is hereby set aside. Respondent is directed to release entire back wages in favour of the petitioner from the date of her termination till the date of her reinstatement. No penal rate of interest. Also, no order as to costs.