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Judgment
Heard the learned Advocates appearing for the parties. The two appeals are taken up for analogous hearing. Assailing the judgment and order dated 19th June, 2009 passed by the learned Trial Judge in W.P. No. 2458 of 2003, two appeals have been preferred, one by the writ petitioner seeking relief as to why petitioner would not be entitled to 100% back wages and another appeal, employer Coal India Ltd. which is assailing the portion of the judgment and order of reinstatement and also grant of back wages and cost. Learned Trial Judge set aside and quashed the order of dismissal from service followed by a departmental proceedings on giving proper opportunity of hearing to the delinquent on the reasoning that the charge of impersonation was not proved by producing material witnesses and thereby directed writ petitioners reinstatement in service with 50% back wages for the period spent under dismissal and learned Trial Judge also imposed cost of Rs. 10,000/-. During pendency of appeal, the appellant complied with the order of the learned Trial Judge by allowing reinstatement in service, hence did not press the portion of judgment and order on that issue but proceed to argue in this appeal regarding justification of grant of 50 % back wages and the cost as imposed by the learned Trial Judge. It is the submission of the appellant that the delinquent never pleaded in the writ application or subsequently by amendment of the writ application that he was not otherwise employed during the dismissal period and accordingly did not justify his claim of back wages. It is the further submission that learned Trial Judge while passing the order about entitlement of back wages did not even assign any reason. In fact no reason assigned as to why writ petitioner would be entitled to back wages. Mr. Ganguly, learned Advocate for the writ petitioner/respondent vehemently submits that as he was dismissed wrongfully and illegally and charge was not proved in departmental proceeding, the dismissal order became null and void and in view of finding of the learned Trial Judge on that point, irrespective of the fact that there was no pleading that during dismissal period he was not employed otherwise, became entitled for 50% back wages.
Considering the aforesaid submission the only point remains for adjudication by us about illegality and validity of the order of 50% back wages. Before doing such it is wise to consider the Apex Court view on that point about grant of back wages. Earlier it was the view of the Apex Court that as soon as order of dismissal is set aside and quashed on any ground either on the breach of constitutional rights or on the breach of procedural laws, reinstatement and back wages is automatic. This view gradually got a change having regard to the change of political philosophy, globalization and industrialisation. The Apex Court intended to see the issue in the angle as to whether the dismissed employee was gainfully employed during the period of dismissal or not or whether he has led any evidence to that effect by shifting the onus to prove that fact upon the delinquent. This change goes to the root of the jurisprudential concept of grant of relief under the heading back wages. In the case of Allahabad Jal Sansthan Vs. Daya Shankar Rai and Another, the Court held that in absence of any evidence adduced by the delinquent that he was not gainfully employed otherwise and did not earn any income, order directing payment of 50% back wages will subserve the ends of justice. But said view was tempered with subsequently by another judgment of the Apex Court in the case of Novartis India Ltd. Vs. State of West Bengal and Others, by holding inter alia that claim of back wages is not matter of right and it depends on fact of each cases applying the principle of grant of damages. For considering the burden of proof upon the workmen to this effect by adducing evidence that he was unemployed during that period, the Apex Court applied Section 106 of the Evidence Act to identify the issue. In the case of Kanpur Electricity Supply Co. Ltd. Vs. Shamim Mirza, the Apex Court held "when order of termination from service is set aside, ordinary relief is reinstatement in service. It does not result entitlement of back wages which is independent of reinstatement." In the case of Senior Superintendent Telegraph (Traffic) Bhopal Vs. Santosh Kumar Seal and Others, the Apex Court further reiterated the position that grant of back wages is not automatic result when dismissal order to be quashed and order of reinstatement to be passed and further stated that even when the termination order is absolutely illegal still then back wages will not be an automatic action when order of dismissal to be quashed. The Apex Court held in that case that grant of compensation only will serve justice. In the case of Ashok Kumar Sharma Vs. Oberoi Flight Services, there was wrongful dismissal but back wages was not allowed. Court simply granted compensation. On analysis of the aforesaid judgment passed by the Apex Court following results emerge:
1) When the dismissal order is quashed and order of reinstatement is passed, order granting back wages is not automatic.
2) Grant of back wages is depended upon consideration of the pleading and the evidence adduced by the delinquent employee identifying the fact that he was not gainfully employed otherwise during the period of dismissal.
3) That back wage concept will not be applied without satisfaction of the aforesaid point No. (2), but principle of damages and compensation to be considered and dealt with to grant relief if dismissal is mid ab initio.
In the instant case, it appears from the pleading of the writ application that there was no pleading that dismissed employee remain unemployed during the dismissal period and he had no earning otherwise. Even at the final hearing such writ application was not amended to adduce that evidence in the form of affidavit evidence which is admissible as evidence having regard to the Constitution Bench Judgment passed in The Barium Chemicals Ltd. and Another Vs. Sh. A.J. Rana and Others, wherein the Court held that the suit is tried by trial on evidence and writ application is tried by affidavit evidence. Since there was no evidence adduced in the form of affidavit evidence in the writ application, there was no scope to consider the issue by the learned Trial Judge. Besides such learned Trial Judge did not assign any reason as to why the writ petitioner became entitled for 50% back wages. No whisper, no single reason on that score. Reason is the heart and soul of the order and in absence of any reason the order falls. Doctrine of speaking order is now a settled legal position in the justice delivery system. Reliance is placed to the judgments passed in the cases Union of India (UOI) and Another Vs. Kartick Chandra Mondal and Another, , State of Orissa and Another Vs. Mamata Mohanty, , State of Uttaranchal Vs. Alok Sharma and Others, , State of Bihar Vs. Upendra Narayan Singh and Others, , Union Bank of India and Others Vs. M.T. Latheesh, , Vice Chancellor, M.D. University, Rohtak Vs. Jahan Singh, , State of Kerala and Others Vs. K. Prasad and Another, , State of Bihar and Others Vs. Kameshwar Prasad Singh and Another, , State of U.P. Vs. Neeraj Awasthi and Others, , Jalandhar Improvement Trust Vs. Sampuran Singh, , ''State of Andhra Pradesh v. S.B.P.V. Chela Pathi Rao reported in (1995) 1 SCC 724, M/s. Faridabad Ct. Scan center Vs. D.G. Health Services and others, South Eastern Coalfields Ltd. Vs. State of M.P. and Others, and Maharaj Krishan Bhatt and Another Vs. State of Jammu & Kashmir and Others,
Since there was no reason assigned by the learned Trial Judge, the order impugned with reference to the back wages issue is an order of non-application of mind on the material facts. In view of such position we have no other alternative but to quash the impugned portion of the judgment whereby learned Trial Judge passed order granting 50% of back wages and also the cost as imposed by the learned Trial Judge. It appears from the impugned judgment under appeal that learned Trial Judge quashed the order of dismissal due to procedural lapses, more particularly, on consideration of the gravity of evidence and scanning of evidence. Hence the order passed by the learned Trial Judge is within the domain of adjudication on breach of procedural law but not on the issue of breach of constitutional rights. There is no breach of constitutional provision to complete the departmental proceeding as delinquent was served with the charge-sheet, got opportunity to oppose it, got chance to appear before the enquiry proceeding. Since there was lacuna or lapse on the part of the adjudicatory body namely the disciplinary authority to scan proper evidence and/or to identify proper evidence, learned Trial Judge quashed the order of dismissal. As order of dismissal was quashed on ground of breach of procedural law, we are not finding any merit to the submission of the learned Advocate, Mr. Ganguly with reference to claim of back wages relying upon the judgment delivered by one of us sitting in the Division Bench (Pratap Kumar Ray, J.) in the case of Smt. Nipa Dhar (Nee Ghosh) v. National Aviation Company of India Limited reported in (2011) 1 Cal LT (HC) 284 : (2011) 2 WBLR (Cal) 793 which has been confirmed by the Supreme Court in the SLP being (Civil) No. 6927 of 2011. In that case the Court considered the pleading of the parties that concerned air hostess Nipa Dhar who pleaded that due to suffering from altitude phobia and prolonged treatment of that disease, she was unable to work otherwise during the termination period and pleaded justifiability to claim back wages. On that factual foundation, the Court passed the order. Besides such the Court in that case made a distinction about grant of relief in between breach of statutory provision or breach of constitutional provision. In that case Court identified the breach of Article 14 and 21 of Constitution of India and discussed the issue to grant 100% back wages. That judgment has no applicability in the present case as here no pleading by the writ petitioner that he was not otherwise gainfully employed during the dismissal period. However having regard to the Apex Court views that even if there is no pleading claiming back wages by adducing evidence that dismissed employee otherwise was not employed, Court may consider legal principle on grant of damages and compensation. In the instant case a workman who is out of service for long period and having regard to prolonged litigation as Initiated by him, we are of the view that Court should pass order of compensation for redressal of grievance. Accordingly, we quantify compensation to the tune of Rs. 50,000/- to be paid to the writ petitioner order granting 50% back wages and cost passed by learned Trial Judge is set aside and quashed and judgment under appeal is modified to that extent granting compensation and damage amounting to Rs. 50,000/- only. However, Mr. Ganguly, learned Advocate submits that writ petitioner is not inclined to accept such small quantum of compensation. It is the choice of writ petitioner to accept it or not.
Supplementary affidavit as filed by the writ petitioner contending that talks of settlement are going which however has been opposed by the learned Advocate for the company, stands rejected. Appeal is thus allowed to that extent. All parties concerned are to act on a signed xerox copy of this order on the usual undertakings.