Swami Dayal vs D.M. Lakhimpur Kheri and Another

Ritu Raj Awasthi, J.—Heard Sri Salil Kumar Srivastava, learned Counsel for the Petitioner as well as the learned Standing Counsel and perused the records.

This writ petition has been filed challenging the order dated 18.4.2006 passed by the District Magistrate, Lakhimpur-Kheri by which the Petitioner has been denied salary for the period from 20.12.1993 to 20.8.2003 on the ground that the Petitioner has not furnished the certificate under Rule 54A, Sub-rule 5 of the Fundamental Rules to the effect that he was not engaged in any gainful employment during the aforesaid period.

It appears that the Petitioner while working on the post of Amin was dismissed from the service after conducting a full-fledged enquiry by the disciplinary authority on 20.12.1993. The dismissal order was challenged by the Petitioner on various grounds by filing Writ Petition No. 449 (S/S) of 1994 including the one that the Petitioner was not provided with the copy of the enquiry report by the disciplinary authority. This Court had allowed the writ petition with the direction to the opposite parties to reinstate the Petitioner in service and can continue the enquiry from the stage of furnishing a copy of the enquiry report. It was made clear that the entitlement of the Petitioner to the backwages and other benefits from the date of dismissal of the Petitioner to the date of reinstatement shall be decided by the authorities according to law, after culmination of the proceedings and depending on the final outcome of the proceedings.

The appointing authority by order dated 20.8.2003 had reinstated the Petitioner in service with the stipulation that the question of backwages will be decided later on and with a direction to the S.D.M., Dhaurahra to submit the enquiry report. The S.D.M. Dhaurahra submitted the enquiry report dated 31.12.2004 without dealing with the earlier enquiry report dated 30.10.1993. Thereafter a show cause notice was issued to the Petitioner enclosing the second enquiry report dated 31.12.2004. The Petitioner submitted his reply that he was entitled to get the first enquiry report in terms of the judgment and order dated 10.7.2003 passed in the Writ Petition No. 499 (S/S) of 1994. Thereafter, the District Magistrate by order dated 2.5.2005 took a decision to drop the departmental proceedings against the Petitioner and also that the Petitioner would not be entitled to the back wages.

The order dated 2.5.2005 of the District Magistrate was challenged by the Petitioner by filing Writ Petition No. 4568 (S/S) of 2005 on the ground that since the departmental proceedings have been dropped, therefore, the Petitioner is entitled to get the backwages. This Court by the judgment and order dated 25.7.2005 passed in the Writ petition No. 4568 (S/S) of 2005 came to the conclusion that since the opposite party No. 1, District Magistrate while passing the order dated 2.5.2005 did not consider the provisions of Fundamental Rule 54A of the Financial Handbook Volume-II, Para II to IV, therefore, the District Magistrate, Lakhimpur-Kheri shall take a fresh decision keeping in mind the relevant provisions under the aforesaid Fundamental Rules. The operative portion of the judgment and order dated 25.7.2005, is quoted as under:

Since it is clear from the impugned order that the District Magistrate has not looked into the aforesaid provision at the time of passing the impugned order, the writ petition is disposed of finally by quashing the impugned order dated 2.5.2005 as contained in Annexure No. 1 to the writ petition, by which the Petitioner has been prevented from getting the salary during the period from the date of dismissal upto the date of reinstatement by the order of this Court with the direction to the District Magistrate, Lakhimpur Kheri to take a fresh decision, expeditiously after keeping in mind the relevant provision under Fundamental Rules as introduced by the aforesaid Amending Act.

It is in compliance of the aforesaid judgment and order dated 25.7.2005, the District Magistrate by the impugned order dated 18.4.2006 has refused to make payment of the backwages to the Petitioner on the ground that under Sub Rule 5 of the Fundamental Rules 54A, the Petitioner has not submitted a certificate or evidence/affidavit indicating therein that he was not in any gainful employment anywhere else during the period he has not worked and as such he is not entitled to get any backwages for the period from 20.12.1993 to 20.8.2003 on the principle of ''no work no pay''.

Learned Counsel for the Petitioner vehemently submitted that this Court while quashing the order dated 2.5.2005 had directed the opposite party No. 1 to take a fresh decision in accordance with law considering Rule 54A of the Fundamental Rules and the observations made in the said judgment.

It is contended that Fundamental Rule 54A provides that where the order of dismissal, removal or compulsory retirement of a Government servant is set aside by the Court of law and the Government servant is reinstated without holding any further enquiry, the period of absence from duty shall be regularized and the Government servant shall be paid pay and allowances in accordance with the provisions of Sub-rule (2) or (3) subject to the directions, if any, of the Court.

Further contention is that the District Magistrate by order dated 2.5.2005 had taken a decision to drop the departmental proceedings on his own and no final decision was taken in the departmental proceedings, as such the Petitioner is entitled to get the backwages in accordance with the provisions of Fundamental Rule 54A, Sub-rule (2) (I) and (II).

Learned Counsel for the Petitioner argued that the Petitioner from the date of suspension till the date of his reinstatement had never been gainfully employed in any private or the Government institution and he had only earned his livelihood from the agricultural income accrued from the agricultural holdings inherited from his ancestral as such he is entitled to get the backwages.

It is submitted by the Counsel for the Petitioner that the opposite party No. 1, before passing the impugned order neither called upon the Petitioner to submit any affidavit or furnish evidence to the effect that he was not engaged in gainful employment during the period he was not allowed to work nor any such opportunity was afforded to the Petitioner.

It is further contended that the impugned order has been passed in gross violation of the principles of natural justice. Even the dismissal order of the Petitioner was violative of the principles of natural justice on the basis of which the Petitioner was denied to work as such the Petitioner can not be denied backwages for the wrongful action of the authorities.

In support of his submissions, he has relied on the judgment of the Supreme Court in the case of Union of India (UOI) Vs. Madhusudan Prasad, wherein it has been held that when the reinstatement is ordered in appeal or review, the authorities can pass specific order regarding pay and allowances to be paid to the Government servant for the period of his absence from duty resulting the dismissal/removal or compulsory retirement, as the case may be in view of Fundamental Rule 54, but where the appellate authority has directed reinstatement of the employee and held that he was not entitled to get backwages for the period he was out of service on the basis of an enquiry and even without giving a show cause notice prior to his dismissal from the service, there was fault on the part of the employer in not following the principles of natural justice. Therefore, Fundamental Rule 54 can not be invoked by the authorities to deny him backwages from the date of dismissal to the date of reinstatement.

In the case of U.P.S.R.T.C. Ltd. Vs. Sarada Prasad Misra and Another, the Supreme Court observed that while considering and determining the question regarding payment of backwages, no precise formula can be adopted nor any rule can be laid down. It has to be determined by the competent authority keeping in view the principles of justice, equity and good conscience. The relevant paragraph 16 of the judgment is quoted below:

From the above cases, it is clear that no precise formula can be adopted nor "cast-iron rule" can be laid down as to when payment of full back wages should be allowed by the Court or tribunal. It depends upon the facts and circumstances of each case. The approach of the Court/tribunal should not be rigid or mechanical but flexible and realistic. The Court or tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the second question, the Court or tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order.

In the counter affidavit the State Government has justified the impugned order by submitting that the benefit of the provisions of the Fundamental Rule 54A can not be given to the Petitioner as he has not done any work for a period of 10 years nor he has given any evidence/affidavit that during the period in question he was not engaged in any other employment. Without any work no salary can be paid to the Petitioner in view of the law laid down by the Hon''ble Supreme Court in the cases of State of Haryana and Others Vs. O.P. Gupta, etc., and Virendra Kumar v. Avinash Chandra Chaddha JT 1990 (3) 503.

It is submitted by the learned Standing Counsel that as per the provisions of Sub-rule 5 of Fundamental Rule 54A, the Petitioner is not entitled for any backwages in view of the fact that he had not submitted any evidence/affidavit before the authority concerned to the effect that he was not engaged in any gainful employment during the period for which he is claiming backwages.

I have considered various submissions made by the learned Counsel for the parties.

There is no dispute to the applicability of Rule 54A in the case of the Petitioner which deals with such a situation where a Government employee has been reinstated in service after the order of dismissal, removal or compulsory retirement is set aside by the Court of law and such Government servant is reinstated without holding any further enquiry.

It is to be noted that the Fundamental Rule 54A was introduced in the Fundamental Rules by U.P. Fundamental Rule 1956 (Amendment) Act, 1976, which reads as under:

54A(1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a Court of Law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and the Government servant shall be paid pay and allowances in accordance with the provisions of Sub-rule (2) or (3) subject to the directions, if any, of the Court.

(2)(i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, and no further inquiry is proposed to be held, the Government servant shall, subject to the provisions of Sub-rule (7) of Rule 54, 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 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.

(ii)The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, and date of judgment of the Court shall be regularized in accordance with the provisions contained in Sub-rule (5) of Rule 54.

(3) If the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period, 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.

(4) The payment of allowances under Sub-rule (2) or Sub-rule (3) shall be subject to all other conditions under which such allowances are admissible.

(5) 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 dismissal, removal or compulsory retirement and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than those earned during the employment elsewhere, nothing shall be paid to the Government servant.

In the present case, the District Magistrate, Lakhimpur-Kheri by order dated 2.5.2005 had taken a decision to drop the departmental proceedings though the Petitioner was reinstated in service by order dated 20.8.2003.

The Fundamental Rule 54A Sub-rule (1) provides that where the dismissal, removal or compulsory retirement of a Government Servant is set aside by the Court of law and such Government servant is reinstated without holding any further enquiry, the period of absence from duty shall be regularized and the Government servant shall be paid pay and allowances in accordance with the provisions of Sub-rules (2) or (3) subject to the directions, if any, of the Court. Sub-rule 2(I) provides that where the order of dismissal, removal or compulsory retirement is set aside by the Court of law, solely on the ground of non-compliance of the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution and where he is not exonerated on merits and no further enquiry is proposed to be held, the Government servant shall subject to the provisions of Sub-rule (7) of Rule 54 be paid such amount to which he would have been entitled had he not been dismissed, removed or compulsorily retired as the competent authority may determine after giving notice to the Government servant on the quantum of proposed and after considering his representation within 60 days.

Sub-rule (2)(II) of Rule 54A provides that the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension and the date of judgment of the Court shall be regularized in accordance with the provisions contained in Sub-rule (5) of Rule 54. Sub-rule 5 of Rule 54A provides that any payment made under this rule to a Government servant on his reinstatement shall be subject to the adjustment of the amount, if any, earned by him through an employment during the period between the date of dismissal, removal or compulsory retirement and the date of reinstatement.

In para 21 of the writ petition, the Petitioner has specifically mentioned that the Petitioner from the date of suspension till the date of reinstatement had never been gainfully employed in any private or the Government Institution and he earned his livelihood from the agricultural income accrued from the agricultural holdings inherited from his ancestral and he was never gainfully employed. The impugned order is violative of the principles of natural justice. In reply to para 21 of the writ petition, the opposite parties in the counter affidavit have not denied the aforesaid contention and only submitted that the benefit of the provisions of Fundamental Rule 54A can not be given to the Petitioner as he neither worked for the period of ten years nor given any affidavit that during the intervening period he was not engaged in any other employment.

It is also to be noted that the impugned order does not disclose that the Petitioner at any stage was called upon to submit any evidence or affidavit before passing of the impugned order or given any opportunity to submit that he was not in any gainful employment during the period from the date of suspension till the date of reinstatement in the service.

There is nothing on record to come to the conclusion that the Petitioner was in any manner engaged in any gainful employment during the period in question.

I am of the considered opinion that the opposite parties before refusing payment of backwages to the Petitioner ought to have given an opportunity to the Petitioner to file an affidavit or certificate to the effect that he was not engaged in any gainful employment during the intervening period i.e. from 20.12.1993 to 20.8.2003. No such opportunity was provided to the Petitioner. It can not be presumed that the Petitioner was engaged elsewhere during the said period simply because he had not submitted evidence/affidavit that he was not employed elsewhere during the said period.

The Petitioner can not be denied backwages simply because he had not furnished any such affidavit or evidence as alleged in the impugned order. To my mind, it appears that the opposite parties have not properly considered the provisions of the Fundamental Rules 54A of the Financial Handbook while passing the impugned order.

In this view of the matter, the writ petition deserves to be allowed. It is hereby allowed. The impugned order dated 18.4.2006, passed by the District Magistrate, Lakhimpur-Kheri, is quashed. Consequences shall follow.