Ashraf Khan vs Union of India

Hasnain Massodi, J.—Petitioner was appointed as constable in Indo-Tibetan Border Security Force (IT-BSF) on 2.5.1995 and allotted

No. 950050214 Const./GD. He was removed from service vide order dated 24.5.2006 on the charge that he had contracted second marriage

during subsistence of a marriage. Petitioner questioned order dated 24.5.2006 in petition being SWP No. 837/2006. The writ petition was

allowed on 9.8.2007 and the writ court while quashing the order impugned in the petition directed respondents to allow the petitioner to resume his

duty. The writ court judgment was assailed in LPA registered as LPA No. 83/2008. The LPA court held the judgment of learned Single Judge to

be ""short of reasons"" and therefore not sustainable. The judgment was accordingly set aside. However, the LPA court in the facts and

circumstances of the case discernable from record nonetheless set aside the order dated 24.5.2006. The operative part of judgment reads as

under:

Viewed thus, the order of removal dated 24.5.2006 passed by the appellant is quashed. Resultantly, the respondent (writ petitioner) shall be

permitted to resume duties leaving it open to the appellant to initiate action afresh, if he so chooses. Further, the appellant shall be free to settle the

intervening period during which respondent (writ petitioner) was out of service by sanctioning leave whatever kind due in accordance with the rules

or otherwise as shall be permissible.

The petitioner in compliance of LPA court judgment dated 23.9.2011 was reinstated vide order dated 13.4.2012 with effect from 28.3.2012

and posted in Garrison Company, ST Battalion of the Force. His period of absence with effect from 24.5.2006 to 28.3.2012 was directed to be

regularized separately in accordance with rules. The respondents by a separate order dated 11.10.2012 treated the period of absence with effect

from 24.5.2006 to 28.3.2012 (five years, ten months and five days) as not spent on duty and following the principle 'no work no pay' directed it to

be regularized as ""extraordinary leave"". Leave encashment for 39 days earned leave paid to the petitioner was directed to be recovered from him

because of his reinstatement.

Petitioner throws challenge to order dated 11.10.2012. The main plank of petitioner's case is that though he was always available for performing

his duty yet he was not allowed to work on the basis of order dated 24.5.2006 whereby he was removed from service held by court to be

arbitrary, against rules and illegal, and therefore, set aside. It is pleaded that once the order dated 24.5.2006 was set aside the respondents instead

of allowing the petitioner to resume his duty preferred an LPA against the order of learned Single Judge and the order dated 24.5.2006 was again

set aside by the LPA court. It is averred that the respondents instead of complying with the LPA court judgment dated 23.9.11 recommended

filing of a SLP against the judgment; that the petitioner was again denied an opportunity to discharge his duties; that the petitioner was reinstated on

28.3.2012 only after Ministry of Law, Government of India, gave its opinion against filing of SLP to question the LPA court judgment.

It is pleaded that the petitioner's absence from duty was neither willful nor deliberate and therefore the period of his absence from duty cannot

be treated as period ""not spent on duty and regularized as extraordinary leave"" with further direction to recover leave encashment of 39 days

earned leave paid to the petitioner. The petitioner insists that as he had no leave to his credit on the date of his reinstatement the period he did not

perform his duties was to be treated as ""on duty"". He claims to have been immensely prejudiced by the order dated 11.10.2012 inasmuch as not

only has the petitioner been deprived of his right to be taken as on duty during the period with effect from 26.5.2006 to 28.3.2012, he has also

been downgraded in the seniority list published on 20.10.2012.

It is reiterated that whenever an employee is removed, dismissed or terminated from service and such order is set aside by the court, the

employee is entitled to all the service benefits available to him under rules as if he had continued to be in service without any break. Petitioner on

the strength of averments made in the petition seeks following relief.

I) A writ of certiorari or any other appropriate writ, order or direction, the impugned order bearing No. 14004/ITBP/Mohd. Ashraf Khan/2012-

3558 dated 11.10.2012 issued by respondent No. 2 be quashed;

II) A writ of mandamus or any other appropriate writ, order or direction, respondents be directed to:

a) Treat the period commencing from 24.5.2006 to 28.3.2012 as on duty;

b) To pay salary, yearly increments and other benefits to the petitioner for the aforesaid period commencing from 24.5.2006 to 28.3.2012;

c) To consider him for promotion to the next higher post and grade as if no order of removal from service was ever issued against him.

The respondents in their reply while admitting factual averments made in the petition plead that as the respondents were given opportunity by the

LPA court vide its judgment dated 23.9.2011 to ""initiate action afresh"" and ""to settle the intervening period during which respondent (writ

petitioner) was out of service by sanctioning leave whatever due in accordance with rules or otherwise as shall be permissible""/they settled the

intervening period during which respondent (writ petitioner) was out of service"" by regularizing it as ""extra-ordinary leave"" in terms of Rule-32(1)

(a) CCS Leave Rules 1972. It is pleaded that as no other leave like earned leave or HPL was to the credit of the petitioner, the respondents were

left with no option but to regularize the period as ""extra-ordinary leave"" and that as in terms of Rule-40(5) CCS Leave Rules 1972 such period

was not to carry any pay or allowance, the petitioner was declared not entitled to the pay and allowance for the period of extraordinary leave and

leave encashment for a period of 39 days was directed to be recovered. The respondents deny that the order dated 20.10.2012 is seniority list of

the constables (GD) as projected in the writ petition.

I have gone through the pleadings and have heard learned counsel for the parties at length.

It is to be pointed out at the outset that the respondents in the wake of LPA court judgment though given an opportunity to ""initiate action

afresh"" did not opt for a fresh inquiry against the petitioner. Needless to say that the aforesaid judgment gave opportunity to me respondents to

initiate action afresh"" implying thereby that the respondents were free to direct an inquiry against the petitioner wherein charge sheet would be

served on the petitioner, if a case was made out on the basis of the evidence collected, and thereafter the petitioner held guilty of misconduct within

meaning of Rule 10 Indo-Tibetan Border Police Force Rules 1994 or the charge dropped. The respondents instead did not opt for an inquiry,

reinstated the petitioner and later regularized the period he was not able to discharge his duty as ""extra-ordinary leave"" without any pay or other

benefits on the principle 'no work no pay'. The respondents therefore deprived the petitioner of pay and other benefits without any misconduct

attributable to him and on the basis of an order declared arbitrary and violative of rules by the court.

The petitioner admittedly did not stay away from his duty because he intended not to discharge the duty and serve the force. He was kept away

from duty by an order passed by respondents removing him from service that later could not stand legal scrutiny. The petitioner, therefore, cannot

be penalized for an act not attributable to him and forced on him under an order declared illegal by the court and by implication so accepted by the

respondents.

Cases can be visualized where a government employee unauthorisedly absents himself from duty or over-stays on leave duly sanctioned in his

favour. In such a case if the government employee is allowed to resume the duty, the authority permitting him to resume the duty may regularize his

period of unauthorized absence as ""extra-ordinary leave"" without any pay and allowance on the principle of ""no work no pay"". In such a case

absence would be attributable to the government employee. Even if such an employee had sufficient ground to stay away from his duty, the

competent authority appreciating the cause available may allow him to rejoin his duty without insisting on pay and allowance for the period of

absence. However, the case in hand is markedly different and distinguishable from such a case. Here the absence from duty is forced and not

voluntary. The petitioner is ready and willing to serve the Force but is not allowed to perform his duty on the basis of an arbitrary and illegal order.

There is also nothing on record to suggest that the petitioner was permanently employed during the period intervening his discharge and

reinstatement. However, the petitioner though not taking up any regular employment during the aforesaid period, must have in one or other way

because of work done by him contributed to the family kitty. The petitioner, therefore, would be entitled to have the intervening period i.e. the

period between the date arbitrary and illegal order removing him from service was made and till he is allowed to resume his duty, as the period of

duty and to be allowed pay and at least a part of the benefits that he would otherwise be entitled to.

The Apex Court in Union of India and another Vs. Babu Ram Lalla, had an occasion to consider right of a terminated employee after

termination order was held to be a nullity, to salary and other benefits for the period with effect from date of termination order to the date of

reinstatement. The court observed that where an order of termination of an employee is held to be a nullity he would be entitled to be paid salary

on the footing that he had always continued in service and the void order was never in existence in the eye of law. The law on the subject was

reiterated in Mohammad Maqbool Dar v. Managing Director, SLJ 1988 J & K 511 : (JKJ Soft JKJ/8596). The court held that where the order of

termination from service of an employee is declared to be bad and the employee in compliance of judgment reinstated, he would not be denied the

pay for the period he remained out of service under such an order of termination. The court proceeded to observe that where such an employee is

reinstated without any punishment and is not subjected to any inquiry, on reinstatement he cannot be treated as on leave for no fault of his, for the

period for which the order of termination had remained in force.

The case in hand squarely falls within the law laid down in aforestated reported case. The order dated 11.10.2012 settling the period with

effect from 26.5.2006 to 28.3.2012 as extraordinary leave without pay on the basis of principle of ""no work no pay"", therefore, is illegal and liable

to be set aside. The respondents are under obligation to treat the period with effect from 26.5.2006 to 28.3.2012 as on duty and release at least a

part of benefits due to the petitioner as if he was on duty. Supreme Court in almost identical circumstances in Baroda Uttar Pradesh Gramin Bank

and Others Vs. Ashok Kumar Srivastava and Another, , directed payment of an amount of Rs. 10 lakh in full and final settlement of the claim for

back wages. The High Court had directed payment of 50 per cent back wages for the period the petitioner remained out of employment. The

direction was modified and instead a lump sum amount as stated above directed to be paid to the petitioner. Resultantly, the period the petitioner

remained away from his duty because of his illegal removal from service is to be treated as on duty for the reasons as already discussed. Viewed

thus, the petition succeeds and is, therefore, allowed. Order dated 11.10.2012 is quashed. Respondents are directed to treat the period with effect

from 24.5.2006 to 28.3.2012 as on duty, release 50 per cent pay and other benefits available to him in consequence thereof and also accord

consideration to his promotion taking the period with effect from 24.5.2006 to 28.3.2012 as on duty and not an intervention in his service.

Disposed of.