HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 2571 OF 2002 . DATED-28th September, 2011 BETWEEN N.Srinivas …Petitioner And National Project Construction Corporation Ltd Haryana, rep. by its General Manager (P&A), and ors ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 2571 of 2002 ORDER: This Writ Petition is filed questioning inaction of the respondents in releasing the pay to the petitioner for the period from 27.10.1984 to 21.6.1989 having regularized his service vide proceedings 17.08.2001, as illegal and arbitrary. It is the case of the petitioner that he was appointed as a Tradesman Grade III (C) on 22.4.1982 in the first respondent Corporation and posted to work under the control of the second respondent. While so, after availing the leave for forty five days pursuant to submission of letter dated 4.10.1984, he reported back to the duty. However he was not taken on duty on the ground that his name was struck down from the rolls with effect from 26.11.1984 in terms of Clause 13(3) of the Standing Orders of the respondent-Corporation. Questioning the same, he filed Writ Petition No.1975 of 1985 before this Court. The said Writ Petition was allowed by the order dated 1.08.1988 holding that the action taken without conducting an enquiry was per se illegal and directed the respondents to conduct an enquiry by giving a reasonable opportunity to him and after considering his explanation, action may be taken in accordance with law. Pursuant to the said order, he (the petitioner) was taken back in service on 22.6.1989. Thereafter, he made a representation to the respondents seeking payment of salary for the period from 26.10.1984 to 21.6.1989 in as much as the termination order was quashed by the High Court in the aforesaid order. On 18.8.2000 he was relieved from service having opted for the Voluntary Retirement Scheme. It is the further case of the petitioner that pursuant to his representation for payment of salary for the period from 26.10.1984 to 21.6.1989, the second respondent through letter dated 25.09.2000 recommended his case to the first respondent, who upon considering his claim directed the second respondent to pay back wages for the aforesaid period since the termination order was quashed by the High Court. Thereafter, the second respondent obtained a declaration from the petitioner that he had not been appointed anywhere during the aforesaid period. It is the further case of the petitioner that vide proceedings dated 17.08.2001 the respondents regularized the absence period of the petitioner from 27.10.1984 to 21.6.1989 without pay. It is the grievance of the petitioner that having regularized the aforesaid period, the inaction of the respondents in releasing his salary for the said period is illegal and arbitrary. Hence the present Writ Petition. The learned Counsel for the petitioner submitted that pursuant to the quashing of the termination order by the High Court, the case of the petitioner was recommended by the first respondent for payment of back wages for the period from 26.10.1984 to 21.6.1986, however, the respondent did not pay back wags till date. He further submitted that the respondents having regularized the aforesaid period, did not release his back wages to the petitioner till date. He argued that consequent upon declaration of removal of the workman from service as bad and illegal, the workman was entitled to back wages on the ground that he was continued to be in service uninterruptedly. The learned Counsel placed reliance on the Judgment of the Apex Court in A.L. Kalra Vs. Project and Equipment Corporation of India Limited ( AIR 1984 SC 1361). On the contrary, the learned Counsel appearing for the respondents, while reiterating the counter averments submitted that pursuant to the order of this Court in Writ Petition No. 1975 of 1985, dated 1.8.1988 the petitioner was reinstated in service on 22.6.1989 and subsequently he was placed under suspension with effect from 24.6.1989 following issuance of charge memo dated 24.6.1989 alleging unauthorized absence from 09.10.1984 to 26.10.1984. After enquiry, the suspension was revoked from 1.10.1992 and punishment of demotion to the category of Mazdoor was imposed, without back wages for the suspension period. Questioning the same, petitioner preferred an appeal, which was allowed directing the respondents to restore his designation to the cadre of Tradesman Grade-III. Thereafter the petitioner opted for voluntary retirement and the period during which the petitioner was out of service from 26.10.1984 to 21.6.1989 was regularized without pay. He further submitted that since this Court has not ordered for payment of back wages while disposing of the Writ Petition, payment of back wages was not automatic. He submitted that order dated 1.12.2000 on which the petitioner placed reliance was only an internal correspondence which did not even speak of payment of back wages and the same was intended for taking a decision in the matter. In support of his arguments, he placed reliance on the judgment of the Supreme Court in Kanpur Electricity Supply Company Limited Vs. Shamim Mirza {(2009) 1 SCC 20}. Having heard the learned Counsel on either side and having gone through the material on record, the only issue that arises for consideration is whether the petitioner is entitled to back wages for the period from 26.10.1984 to 21.6.1989. Questioning the removal of the petitioner from service the petitioner filed Writ Petition No. 1975 of 1985 and this Court disposed of the said Writ Petition by order dated 1.8.1988 setting aside the removal order and directing the respondents to conduct enquiry and initiate action. Pursuant to the same, the petitioner was reinstated in service on 22.6.1989 and the respondents conducted an enquiry while placing him under suspension and imposed upon him punishment of demotion to the category of Mazdoor. On appeal, the respondents restored his designation as Tradesman Grade III. Thereafter by order dated 17.8.2001, the respondents regularized the period of absence from 26.10.1984 to 21.6.1989 without pay. Normally once the order of termination of service of an employee is set aside, the relief of reinstatement is available to him. However, the entitlement to reinstatement in service of an employee does not necessarily result in the inevitable consequence of payment of full or partial back wages. In J.K.Synthetics Limited Vs. K.P.Agarwal {(2007) 2 SCC 433}, the Apex Court held that the grant of back wages is no longer considered to be an automatic or inevitable consequence of a direction of reinstatement and that the grant of back wages cannot be a mechanical. In the decision relied on by the learned Counsel for the respondents cited supra, the Apex Court held as follows: “It is true that once the order of termination of service of an employee is set aside, ordinarily the relief of reinstatement is available to him. However, the entitlement of an employee to get reinstated does not necessarily result in payment of full or partial back-wages, which is independent of reinstatement. While dealing with the prayer of back- wages, factual scenario, equity and good conscience and a number of other factors, like the manner of selection; nature of appointment; the period for which the employee has worked with the employer etc.; have to be kept in view. All these factors are illustrative and no precise formula can be laid down as to under what circumstances full or partial back-wages should be awarded. It depends upon the facts and circumstances of each case. I n General Manager, Haryana Roadways v. Rudhan Singh {(2005) 5 SCC 591} a three-Judge Bench of this Court has observed that there cannot be a strait jacket formula for awarding relief of back-wages and an order of back-wages should not be passed in a mechanical manner. It has been held that a host of factors, like the manner and method of selection and appointment; the nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character; and the length of service, which the workman had rendered with the employer are required to be taken into consideration before passing any order for award of back-wages. See: also Haryana State Electronics Development Corporation Ltd. v. Mammi (2006)IILLJ744SC ; U.P. State Brassware Corporation Ltd. and Anr. v. Uay Narian Pandey (2006)ILLJ496SC and U.P. SRTC v. Mitthu Singh (2006)IIILLJ778SC . Bearing in mind the afore-noted broad parameters, we are of the opinion that the facts at hand do not warrant payment of back-wages to the respondents. In both the cases, though the respondents have succeeded in establishing that they were in the employment of the appellant when their services were terminated but nothing has been brought on record to show that they were selected through a regular recruitment process. It has also not been shown whether they were actually qualified for the post of a cashier. Besides, on their own showing they had worked with the appellant for about two years when their services were terminated. These circumstances, in our view, disentitle them from their claim for back wages……” But, in the judgment relied on by the learned Counsel for the petitioner cited supra, a two- judge Bench of the Supreme Court held that when removal from service is held to be illegal and invalid, the next question is whether the victim of such action is entitled to back wages and that if termination of service is held to be bad, no other punishment in the guise of denial of back wages can be imposed and therefore it must as a necessary corollary to follow that he will be entitled to all the back wages on the footing that he has continued to be in service uninterruptedly. However, a later three-Judge Bench of the Apex Court in Haryana Roadways Vs.Rudhan Singh {(2005) 5 SCC 591) has observed that there cannot be a straightjacket formula for awarding relief of back wages and an order of back wages should not be passed in a mechanical manner. As such, the judgment relied on by the learned Counsel for the petitioner referred supra has no application in view of the recent authoritative pronouncement of the Apex Court. The contention of the learned Counsel for the petitioner that the first respondent issued proceedings dated 1.12.2000 directing the Unit Officer to pay the back wages to the petitioner merits no consideration since it was only an internal correspondence and it did not contain a direction as to payment of back wages. It is pertinent to note that pursuant to the order of this Court dated 1.8.1988 in Writ Petition No. 1975 of 1985, the respondents had given substantial relief of reinstatement in service to the petitioner, including regularizing the period of absence. For the going discussion, the Writ Petition merits no consideration and the same is dismissed accordingly. There shall be no order as to costs. ------------------------------------ -- JUSTICE ASHUTOSH MOHUNTA Dated 28th September, 2011. Msnro