Sudhakar Rai vs State of U.P. and Others

Tarun Agarwala, J.—Heard the learned Counsel for the petitioner.

The petitioner is a Constable and was dismissed from the services on 24th August, 1993. His appeal was also rejected on 22nd February, 1994, against which, the petitioner preferred Writ Petition No. 26842 of 1994, which was allowed by judgment and order dated 19th April, 1999. The operative portion of the order is quoted hereunder:

The writ petition succeeds and is allowed. The dismissal order dated 24.8.1993, passed by the respondent No. 2 (Annexure-1 to the writ petition) and appellate court order dated 27.2.1994, passed by the respondent No. 1 (Annexure-2 to the writ petition) are hereby quashed. The respondents are directed to reinstate the petitioner in service within one month from the date of production of certified copy of this Judgment.

Based on the aforesaid order, the authorities issued an order dated 5th July, 1999 reinstating the petitioner and further directing that a separate order would be passed subsequently ''with regard to the arrears of wages. It appears that the petitioner was aggrieved by this portion of the order, and accordingly, filed Writ Petition No. 21050 of 2000 which was disposed of by an order dated 4th of May, 2000 directing the authorities to pass appropriate orders on the question of back wages within three months from the date of production of a certified copy of the order Based on the said direction of the Court, the authority (respondent No. 3) passed the order dated 11.10.2001 refusing to pay back% wages to the petitioner on the principle of "no work no pay". The petitioner, being aggrieved by the said order, has filed the present writ petition.

Shri R.P. Rai, the learned Counsel for the petitioner submitted that the order of dismissal was set aside by this Court and the petitioner was directed to be reinstated. Consequently, when there is a direction of reinstatement by the Court, it naturally follows that the petitioner had never been terminated and had continued to remain in service, and therefore, was entitled for payment of back wages from the date of the alleged dismissal till the date of his reinstatement.

Further, the learned Counsel submitted that the principle of ''no work no pay'' cannot be accepted as a rule of thumb and there are exceptions when the Courts have granted monetary benefits from back date, and in the circumstances of the present case, when the order of dismissal had been found to be arbitrary and had been set aside by a Court of law, the petitioner should be granted the relief of back wages. The learned Counsel submitted that this was a fit case where the Court should direct the authorities to grant back wages to the petitioner.

In support of his submission, the learned Counsel for the petitioner has placed reliance in the case of State of Kerala and Others Vs. E.K. Bhaskaran Pillai, , wherein the Supreme Court directed grant of the back wages from the date of filing of petition instead of from the date of promotion.

The learned Counsel also placed reliance in the case of Hardwari Lal Vs. State of U.P. and Others, wherein a Division Bench of this Court while setting aside the order of dismissal issued a direction for reinstatement with 50% of salary.

The learned Counsel also placed reliance on another decision of the Supreme Court in U.P.S.R.T.C. Ltd. Vs. Sarada Prasad Misra and Another, , wherein the Court held that there is no cast iron rule nor there is a precise formula which could be adopted for, the payment of the back wages and that it was a discretionary power to grant the back wages which had to be exercised in view of the keeping in view the facts and circumstances in each case.

Having considered the submission of the learned Counsel for the petitioner and upon a perusal of the various judgments, as cited above, this Court is of the opinion that the petitioner is not entitled for any relief. The judgments cited by the learned Counsel for the petitioner are not at all applicable to the present facts and Circumstances of the case.

In the case of Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras, the Supreme Court held that if there is no specific direction by a court of law to reinstate a person, consequently, the respondents could not be held liable for any wilful contempt for not) reinstating that person.

In Mrs. Harbans Kaur v. Sardar (Ch) Narendra Singh and Anr. 1992 AWC 1398 and in Tannary and Foot Wear Corporation Vs. T. Rudra, Chairman cum Managing Director and Others, the Court held that there was no wilful contempt on the part of the respondents in not paying the salary to the applicant since there was no specific direction for the payment of the salary by the Court.

In the Director of Education, Uttaranchal and Ors. v. Ved Prakash Joshi and Ors. (2005) 3 UPLBEC 2415 : 2005 (3) AWC 2964 , the order of termination was set aside and there was no specific direction for the payment of the arrears of salary. The Court held that there was no contempt against the opposite parties since there was no specific direction for the payment of the salary. The said principle enunciated in the aforesaid decisions is clearly applicable in the present case. Admittedly, in the present case, the order of dismissal was set aside and the Court directed reinstatement of the petitioner. There was no specific direction for the payment of the arrears of the salary while reinstating the petitioner. That judgment has now become final. Consequently, applying the aforesaid principles, as enunciated in the aforesaid decisions since there was no specific direction of payment of arrears of salary, the petitioner could not get the arrears of salary automatically upon his reinstatement. The Supreme Court has held in a large number of cases that payment of arrears of salary upon reinstatement is not automatic and each and every case has to be considered in the facts and circumstances of each case.

In the present case, the authorities while reinstating the petitioner, directed that the order of payment of arrears would be passed subsequently. Eventually, the authorities passed an order declining to grant arrears on the principle of "no work no pay".

In my opinion, the discretion exercised by the respondents is not arbitrary and is based on the facts and circumstances of the case. As held by the Supreme Court, there is no specific norm which can be applied for the payment of the back wages. The discretionary power exercised by the authorities has been exercised keeping in view the facts and circumstances of the case. The exercise of such power by the respondents is neither arbitrary nor whimsical.

Consequently this Court is not inclined to interfere with the Impugned order. The writ petition fails and is dismissed.