Ramesh Rotkar vs State of M.P. (Now C.G. and Others)

Satish K. Agnihotri, J

This intra-court appeal arises from the order dated 14.06.2010 passed by the learned Single Judge in W.P.(S) No. 3057/2005 (Ramesh Rotkar v. State of M.P. (Now C.G.) & Others). The facts, in brief, as projected by the appellant are that the writ petitioner (appellant herein) was initially appointed as Teacher in the Education Department on 15.11.1960. Later on, he was selected as Probationary Officer in the Social Welfare Department and thereafter, promoted as Superintendent vide order dated 29.07.1982. A charge sheet was issued to the appellant on 04.03.1994. The appellant submitted his reply on 25.08.1994 and the Enquiry Officer submitted its report on 19.09.1997. On the basis of the said report, a show cause notice was issued to the appellant on 16.10.1997 to submit his written reply. The appellant submitted his written reply on 17.12.1997. The Disciplinary Authority imposed a major penalty of reversion from the post of Superintendent to Probationary Officer by order dated 25.09.1999. Being aggrieved, the appellant filed an application being O.A. No. 885/1999 before the State Administrative Tribunal, Raipur. On formation of the State of Chhattisgarh, the matter was transferred to this Court and the matter was registered as W.P. (S) No. 3057/2005. During hearing of the petition, the records of the departmental enquiry were called by the learned Single Judge wherein it was evident that the respondents had failed to supply any documents for examination and cross examination of witnesses. After hearing the parties, the learned Single Judge quashed the order dated 25.09.1999 impugned therein. Further, it was directed that the appellant shall be treated as having continued on his original post of Superintendent with all consequential benefits, had he continued in service on the post of Superintendent. It was further held that only 50% of the difference of pay of the post of Superintendent and Probationary Officer was payable to the appellant.

Smt. Siddique, learned counsel appearing for the appellant submits that the learned Single Judge erred by holding that only 50% of the difference of pay of the post of Superintendent and Probationary Officer was payable, as the order dated 25.09.1999 which was impugned before the learned Single Judge was quashed holding it to be illegal as the appellant was never allowed to cross examine the witnesses and relevant documents were also not supplied to him during the course of departmental enquiry. Thus, the whole enquiry proceeding was held to be vitiated. In the said circumstances, the learned Single Judge ought to have directed the respondents to pay full back wages i.e. the difference of pay of the post of Probationary officer and the Superintendent, to the appellant, in support of her contention, she relies on a decision of the Supreme Court in Dharampal Arora v. Punjab State Electricity Board & Another, (2008) 2 SCC (L&S) 145 and Union of India & Others v. Gyan Chand Chattar, (2009) 12 SCC 78. Smt. Siddique further submits that till date, even the 50% of the difference of pay of the post of Superintendent and Probationary Officer has not been paid to the appellant.

On the other hand, Shri Bajaj, learned Government Advocate appearing for the State/respondents submits that the appellant cannot claim full back wages as a matter of right. It is a purely discretionary element and has to be dealt with regard to facts and circumstances of each case and no straitjacket formula can he applied.

Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.

The appellant has not pointed out any manifest error in the judgment passed by the learned Single Judge, except that the learned Single Judge ought to have awarded 100% of the difference of pay of the post of Superintendent and Probationary Officer.

In Dharampal Arora, relied on by learned counsel for the appellant, wherein the final order of punishment was set aside, it was held that the employee was entitled for all the consequential benefits. In the case on hand, except the back-wages, the appellant was held to be entitled to all other consequential benefits.

Further, in Gyan Chand Chattar, the Supreme Court Granted 50% back-wages on the ground that the judgment of the learned Single Judge was not complied with for about 20 years. Thus, the appellant cannot derive much benefits from the aforesaid cases.

The Supreme Court, in MP. State Electricity Board. v. Jarina Bee (Smt.), (2003) 6 SCC 141 while dealing with the issue of grant of full backwages after order of dismissal was set aside, observed as under:

In P.G.I. of Medical Education and Research v. Raj Kumar this Court found fault with the High Court in setting aside the award of the Labour Court which restricted the back wages to 60% and directing payment of full back wages. It was observed thus: (SCC p. 57. para 9)

The Labour Court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect.

Again at para 12, this Court observed: (SCC p.58)

Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no strait-jacket formula can he evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety.

The position was reiterated in Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and Indian Rly. Construction Co. Ltd. v. Ajay Kumar.

Applying the legal principles, the inevitable conclusion is that the High Court committed an error in holding that the award of full back wages was the natural consequence.

Further, the dicta laid down in the above case was referred approvingly in Novartis India Ltd. v. State of West Bengal & Others, (2009) 3 SCC 124 by the Supreme Court, observing as under:

It is also trite that for the purpose of grant of back wages, conduct of the workman concerned also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right.

In MR. SEB v. Jarina Bee this Court observed that the award of full back wages as not the natural consequence of an order of reinstatement.

In view of the above and applying the well settled principles of law to the facts of the case, we are of the considered opinion that there is no infirmity or irregularity in the order passed by the learned Single Judge. The same is just and proper and does not warrant any intereference of this Court. As a result, the writ appeal is shorn of merit and is accordingly dismissed. However, having regard to the facts situation wherein the State/respondents have not paid the difference of pay, as aforestated, to the appellant, it is directed that the State/respondents shall pay all the dues within a period of one month from the date of receipt of a copy of this judgment.