{ 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T D.B. CIVIL WRIT PETITION NO.2176/2003 NAR NARAIN SHARMA VS. UNION OF INDIA & ORS. Date of Judgment : 09.11.2010 PRESENT HON'BLE MR.JUSTICE A.M.SAPRE HON'BLE MR.JUSTICE C.M. TOTLA Mr. J.K. Kaushik, for the appellant. Mr. Kamal Dave, for the respondents. BY THE COURT: (PER HON'BLE A.M. SAPRE, J) This is a writ petition filed by the applicant of O.A.No 428 of 95 under article 227 of Constitution of India against an order Dt. 4.5.2000 passed by Central Administrative Tribunal (for short hereinafter called the “Tribunal “) in aforementioned original application. 2. By impugned order, the Tribunal partly allowed the Original Application of the writ petitioner and in consequence, while quashing the order of dismissal interfered in quantum of punishment imposed on the writ petitioner and accordingly directed writ petitioner’s reinstatement in service with all its consequential benefits except declining to award { 2 } him back wages from the date of his dismissal up to the date of reinstatement in service. It is against this order, the applicant i.e. employee has felt aggrieved of that part of the order, by which the Tribunal declined to him the back wages. 3. So the short question that arises for consideration in this writ petition is whether, Tribunal was justified in not awarding to the writ petitioner back wages for the period in question i.e. from the date of his dismissal to that of the date of his reinstatement? Facts of the case are these. 4. The writ petitioner is a railway employee. He remained absent unauthorizedly for 175 days in the year 1991. This led to initiation of departmental inquiry against him as per Rules. The inquiry officer held an inquiry and found the charges leveled against the writ petitioner as proved. The appointing authority accepted the findings of the inquiry officer and accordingly dismissed the writ petitioner from the service. The writ petitioner then filed departmental appeal as prescribed under the Rules. The appeal was dismissed and in consequence, the dismissal order was upheld. It is against these orders, the writ petitioner felt aggrieved and filed the application before the Tribunal out of which this writ petition arises. As observed supra, the Tribunal partly allowed the application and while upholding the departmental inquiry so also the findings recorded by the inquiry officer against the writ petitioner, preferred to interfere in quantum of punishment imposed by the { 3 } appointing authority. In the opinion of Tribunal, though the charges leveled against the writ petitioner were rightly held proved, calling no interference by the Tribunal yet, the punishment imposed by the authority i.e. dismissal was held disproportionate to the gravity of the charges. The Tribunal, therefore, interfered in the award of punishment and while quashing of the order of dismissal directed reinstatement of writ petitioner in services, with all consequential benefits. The Tribunal, however, declined to award him back wages from the date of dismissal up to the date on which he was reinstated. It is against this order, the applicant i.e. employee has felt aggrieved and filed this writ petition under article 227 of the Constitution of India. 5. Submission of learned counsel for the writ petitioner was essentially one. According to him, the Tribunal had no jurisdiction to interfere in quantum of punishment awarded by the appointing authority. He urged that since in this case, Rules did not provide for imposition of punishment awarded by the Tribunal and hence the writ petitioner was entitled to claim back wages, the moment; the Tribunal directed his reinstatement. 6. In reply learned counsel appearing for the respondents supported the impugned order and prayed that the same be upheld calling no interference. 7. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to dismiss the writ petition as in our opinion, no case is made { 4 } out for any interference in the impugned order. 8. This is what the Tribunal while upholding the entire departmental proceedings held in their concluding Para: “7. The object of the rule is that if the person intimates his sickness with the certificate of a registered medical practitioner, the department would be in a position to make arrangement for the discharge of duties he was required to discharged in the department in the instant case, the cases of the applicant is that he sent a postcard under certificate of posting, but what he was required under Para 435 (4) was that he should send the intimation with a certificate from a registered medical practitioner, which he has not done. Therefore, we are of the opinion that the disciplinary proceedings would still lie under Para 535(4) of the Indian Railway Medical Manual, even though, the unauthorised absence has been regularised by granting leave without pay. At the same time, in our opinion, the authorities below should have taken into account of the fact that the applicant's unauthorised absence was already treated as leave without pay, while awarding punishment. Keeping in view of these circumstances, we find that the punishment of removal would be disproportionate to the charge leveled against the applicant. It is also an established principle of law that this Tribunal has got jurisdiction to interfere with the quantum of { 5 } punishment in case this Tribunal finds that such a punishment was disproportionate to the charge levelled against the delinquent official. 8. In the above circumstances, we think it appropriate to modify the punishment and to direct the respondents to reinstate the applicant in service with all consequential benefits, and the back wages may be denied by way of punishment. Accordingly, we pass the order as under:- 9. The application is partly allowed. The impugned order of the disciplinary authority and the appellate authority, are partly modified regarding the quantum of punishment. The order of removal dated 23.11.1992 vide Annexure A/10 is set aside and the applicant is ordered to be reinstated in service with all consequential benefits. However, he would not be entitled to any back wages from the date, he was removed from service till the date of his reinstatement in terms of this order.” 9. In our opinion, it is now a well settled principal of law that court/tribunals have jurisdiction to interfere in quantum of punishment imposed by the appointing authority under the Rules in appropriate cases, if it is noticed that the punishment imposed on an employee is disproportionate to the charges leveled against him. Equally well settled law is that even though reinstatement is ordered, yet the back wages cannot be claimed by such employee as of right. It is ruled { 6 } that in every case, it is for the employee to prove that he was not gainfully employed after his services were dispensed with and that he remained unemployed. The employer too is entitled to show to the Court/Tribunal that employee was working for the gains after his dismissal from the services and hence even if reinstatement is ordered for any reason, no direction with regard to payment of back wages be made in his favour. The parties are required to plead and prove by adducing evidence in support of their stand taken in the court on such issue and depending upon the pleading and proof, the appropriate orders are passed by exercising discretion. Indeed section 11 and 17-B of Industrial Disputes Act are sufficient guidelines in this regard. 10. In this case, we have noticed that the writ petitioner neither pleaded before the Tribunal nor in this writ petition that he was not gainfully employed after his services were dispensed with. In the absence of any averment much less proof in support of such averment, this issue cannot be examined much less decided in favour of writ petitioner. It is apart from the fact that neither Tribunal nor writ court can record evidence for returning any finding on this issue. 11. In our opinion, the Tribunal had the jurisdiction to interfere in quantum of punishment imposed by appointing authority once it came to a conclusion that punishment imposed on the writ petitioner by the appointing authority was excessive in nature, as compared to the gravity of charges. It is not in dispute, that the Tribunal upheld the { 7 } entire departmental inquiry so also the charges leveled against the writ petitioner. Once the charges are held proved than it is for the appointing authority to decide as to what punishment should be imposed on the delinquent which as stated supra is subject to interference by the Tribunal/Court. In this case, the Tribunal rightly took note of the fact that a person who has been in service for a quite long time should not be dismissed from service for a charge of absenteeism from duties for few days and more so when the issue also later regularized. Since it was noticed that the writ petitioner failed to inform the authorities about his absence, as required under the Rules, for all these days due to which, no alternative arrangement could be made by the railways thereby causing loss of work, the declining of back wages was considered a proper punishment. 12. In our opinion, the declining to award the back wages can also be one of the punishments though not defined in Rules. It is apart from the fact that whether to award back wages or not, is always in the nature of discretion. The principal of no work and no pay can always be applied in appropriate case once it is noticed that employee did not render any services during such period. 13. In our view, the substantial justice is done to the writ petitioner who has been directed to be reinstated in service and the same was accepted by the respondent who did not prefer to challenge such order and reinstated the writ petitioner in service. { 8 } 14. In the light of forgoing discussion, we find no merit in this writ petition. It is accordingly dismissed. ( C.M. TOTLA),J. ( A. M. SAPRE ),J. /Anil/