IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.7956 of 1997 Date of decision: 23rd November, 2010 K.L. Arya Girls High School … Petitioner Versus The Presiding Officer, Schools Tribunal, Punjab and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Baldev Raj Mahajan, Advocate for the petitioner. Mr. Puneet Jindal, Advocate for respondent No.3. KANWALJIT SINGH AHLUWALIA, J. Present writ petition has been preferred by K.L. Arya Girls High School, Jalandhar Cantt. (hereinafter referred to as, ‘the School’) through its Manager K.L.Gupta with a prayer that order dated 15th April, 1997 (Annexure P-6) passed by the Presiding Officer, Schools Tribunal, Punjab, Chandigarh (hereinafter referred to as, ‘the Tribunal’) in an application for clarification of order dated 30th April, 1993 (Annexure P-3) filed by respondent No.3-Rama Shanker Shukla, whereby it extended the benefit of back wages for the period he remained out of service, which was not given to him in the original order passed in his appeal (Annexure P-3), be set aside. Respondent No.3-Rama Shanker Shukla, Waterman-cum- Chowkidar had filed an appeal before the Tribunal under Section 4(2) of the Punjab Privately Managed Recognised Schools Employees (Security of Service) Act, 1981 (hereinafter referred to as “1981 Act”) against the order of his termination from service dated 2nd June, 1992, passed by the Civil Writ Petition No.7956 of 1997 Director, Public Instructions (Schools). His appeal was accepted. The termination order was set aside. He was ordered to be reinstated. However, his period of absence was ordered to be regularized in accordance with rules/instructions. However, by way of order dated 15th April, 1997 (Annexure P-6) passed in an application (Annexure P-4), the respondent-employee has been granted full pay and allowances from the date of his dismissal from service till his reinstatement. The Tribunal, while deciding the application, further held that the payment would be made to the employee definitely out of the next quarterly installment of grant-in-aid for the period 1997-98. The employee was also held entitled to penal interest at the rate of 18 per cent per annum from 1st July, 1997 till the actual payment was made. The case as set out by management of the School is that the respondent-employee was working as a Waterman-cum-Chowkidar in the School. He remained on leave without pay for three months in the year 1981. Similarly, in the year 1982 he remained on leave without pay for more than two months besides availing other admissible leaves. In the year 1983, he was on leave without pay from 6th May, 1983 to 11th July, 1983 and again from 5th September, 1983 to 11th September, 1983. The employee, after availing the leave, was supposed to join on 12th September, 1983 but he failed to join his duty, as he had gone to his village in Bihar and started sending applications for extension of leave from 12th September, 1983 onwards. He did not resume his duty for 29 months till 31st January, 1986. On 1st February, 1986, the employee was permitted to join his duty. However, he again proceeded on leave from 9th April, 1986 for a period of one week. This time the leave was granted after taking a special undertaking from him that he would not get his leave extended further. However, the employee again went to his village in Bihar and had not joined his duty after expiry of the period of leave and 2 Civil Writ Petition No.7956 of 1997 again sent an application for extension of leave but the same was rejected by the managing committee of the School. Rejection of the leave was conveyed to the employee vide a letter under registered cover on 21st April, 1986 at his village address. Since the employee failed to join his duty, the Managing Committee of the School ordered an enquiry against the employee for remaining absent from his duty. A full fledged enquiry was held and due opportunity of hearing was afforded to the employee. The Enquiry Officer, vide his report dated 7th July, 1986, held the employee guilty of continuous absence from his duty. The enquiry report so submitted was accepted and a notice proposing penalty of termination of his service was served upon the employee, who submitted his reply thereto on 13th August, 1986 and stated that in case he could not be reinstated at his post, all his dues be remitted to him. However, he denied the charges. The reply was found unsatisfactory and penalty of termination of service was approved by Managing Committee of the School on 28th August, 1986 and the same was sent for approval to the Director of Public Instructions (in short “DPI”) as required under Section 4 of the Punjab Privately Managed Recognised School Employees (Security of Services) Act, 1979 (hereinafter referred to as, ‘the Act’). The DPI approved the termination of services of the employee with effect from 15th April, 1986. The order of termination of services and the approval granted by the DPI are annexed with the present petition as Annexures P- 1 and P-2 respectively. Aggrieved against the order dated 2nd June, 1992 (Annexure P-2) whereby the DPI had approved the punishment of termination of his services, the employee availed the remedy of statutory appeal. The Presiding Officer, Schools Tribunal, Punjab accepted the appeal and set aside the order of termination of service of the employee passed by the DPI. The Managing Committee of the School was directed to take the 3 Civil Writ Petition No.7956 of 1997 employee back in service immediately and a further direction was issued that his absence be regularized in accordance with the rules/instructions governing such appointment. Thereafter, the employee submitted his joining report to the School authorities on 16th July, 1993. He was allowed to resume his duty. The order (Annexure P-3) dated 30th April, 1993 accepted the appeal of the employee, passed by the Tribunal, was not challenged by either of the parties and thus, it attained finality. On 10th April, 1994, the employee filed an application (Annexure P-4) under Section 11, 12 and 13 of the 1981 Act before the Tribunal and prayed therein that the back wages from the date of termination of his services till his reinstatement be ordered in his favour. The Managing Committee of the School filed reply thereto and prayed for its dismissal. However, vide impugned order (Annexure P-6), the Tribunal accepted the application. On 14th October, 1996, the Tribunal passed the following interim order: “During the course of arguments it was observed that the petitioner Mr.Rama Shankar Shukla Waterman-cum- Chowkidar had in pursuance of the order of Sardar Hardial Singh, IAS, PO/SCT, Punjab, Chandigarh, dated 30th April, 1993 joined duty from 16.7.1993. He did not receive any wages upto 15th June, 1994 i.e. 11 ½ months but thereafter he is being paid his wages to date. The Advocate for respondent admitted this fact but stated that to obviate hardship to this employee an interest free loan had been given to Rama Shankar Shukla to be adjusted against the salary when paid. This was found to be incorrect as recovery of the loan was being made and the petitioner has already returned the loan of Rs.5000/- out of Rs.13,000/- by installments made by cheques to the Management. The Management is directed to immediately make payment of the full wages due to Sh.Rama Shankar from the date of rejoining the service. It is rather surprising that the matter pertaining to a class four employee has been kept pending for so long. The payment is being made from 16th June, 1994 4 Civil Writ Petition No.7956 of 1997 onward and no difficulty has been felt for calculating this pay. The pay given to him in the month of July, 1994 may be considered the basis for calculating for the previous 11 ½ months also, as an interim measure without prejudice to the actual payment which may become due to him, on proper refixation of the salary. Since this non payment has caused considerable hardship to the employee, the management may pay interest at the rate of 18% on the amount due, according to above minimum calculation immediately, and report compliance before the next date of hearing. This penal interest is to be borne by the Management from its own funds.” Finally, the Tribunal decided the application by observing as under: “10. … … … For the last 4 years, the School authorities and the D.P.I. (S) are not able to clarify to each other as to how this period is to be treated. The line in the Tribunal’s order, ‘The period of absence be regularized in accordance with rules/instructions governing such appointments’ relates to appointments to aided posts and in the manner prescribed under the Act/Rules. He is, therefore, entitled to full pay and allowances from the date of dismissal i.e. from 15.4.1986, since the order of dismissal has been set aside by the then Tribunal as being vitiated and, therefore, illegal.” Thus, by virtue of order dated 15th April, 1997 (Annexure P- 6), the employee was granted salary/back wages for the period, he remained out of job, i.e. from the date of his termination till the date of his reinstatement. Admittedly, the services of the employee were terminated with effect from 15th April, 1986 and his reinstatement was ordered on 30th April, 1993. He rejoined the services of the Managing Committee of the School on 16th July, 1993. 5 Civil Writ Petition No.7956 of 1997 It is urged in the present writ petition that the order (Annexure P-6) dated 15th April, 1997 passed by the Tribunal, whereby a direction was issued to the Management of the School to pay full pay and allowances to the employee from the date of termination of his services till his reinstatement, is without jurisdiction, as in the original order (Annexure P-3), it was only stated that the period of absence be regularized in accordance with the rules/instructions governing appointment of the employee. The employee had died during the pendency of present writ petition and is now being represented by his legal representatives. Mr.Baldev Raj Mahajan, counsel appearing for the petitioner- School, has stated that vide order (Annexure P-3), back wages of the employee were not awarded. By filing an application (Annexure P-4), the employee had sought a clarification and at that time, the Tribunal was only acting as an Executing Court and could not award what was not granted in the original order (Annexure P-3). Therefore, being an Executing Court, the Tribunal could not grant the back wages to the employee for the period he remained out of service. Mr. Puneet Jindal, Advocate appearing for the respondent- employee, has stated that since order of termination was set aside, even though on a technical ground, the employee is entitled to back wages. After hearing counsel for the parties, this Court is of the opinion that the respondent-employee, for a considerable period, remained absent from duty. Due to his willful absence, his services were terminated. The order of termination of his service was set aside on a technical ground by the Tribunal vide order (Annexure P-3) that the chargesheet was signed by the Enquiry Officer. It is a matter of fact that the employee remained absent from duty without his leave being extended by the authorities. Thus, this Court is of the view that the 6 Civil Writ Petition No.7956 of 1997 principle of ‘No Work No Pay’ shall apply. In support thereof, reliance can be placed upon ‘State of Haryana v. O.P. Gupta’ 1996(2) SCT 294. Thus, for the period, for which the employee remained out of service, he cannot be held entitled to salary. Reinstatement of the employee was ordered on 30th April, 1993. He rejoined the School on 16th July, 1993. Therefore, the order (Annexure P-6) is modified to the extent that the respondent-employee shall be entitled to claim salary from the date he rejoined the School, i.e. 16th July, 1993. For the period the employee remained under termination, no salary can be awarded to him. However, since termination of service of the respondent-employee has been set aside vide order (Annexure P-3), the period for which he remained absent from duty and out of job, i.e. from the date of termination of his service till his reinstatement, shall be counted towards the length of his service for computation of pension and other terminal benefits. With the observations made above, present petition is disposed of, with no order as to costs. [KANWALJIT SINGH AHLUWALIA] JUDGE November 23, 2010 rps 7