A.p.^. -^^ VERSUS Ram Sharik Singh, State of Madhya Pradesh & Others 1-^ ! • R Ir^' ^ ^ Post for pronouncement ofthe order on l^ -7-2009. Sd/- Pritinker Diwaker Judge B.e····'·Tin^!Fi r's. i s B ii w'is'^ a—i tFCl nf 'Sftff.S UE Ay:%?' SLASPL ;Hon. iVir. Jystice Prltinker Diwakeri VERSUS Ram Sharik Singh, S/o. ChandrapaE Singh @ Chandrapat' Slngh, aged about 47 years, Van Rakshak, Utpadan Van Mandat,. Mahasamund District Ralpur M.P. State of Madhya Pradesh & Others Anand KumarTiwari, counsei forthe petitior Ajay Dwlvedi, Dy. G.A. fortheState VVKI I •!ON IMS 1 S S {f4) .07.2009) The petitioner 'who retired from service as Forest Gua( 31.12.2004, had approached the State Administrative Tribuna 13.10.1997 by way of Originai Appiication asssiling therein -"ts—-i^^;'yu^f'-l^A^U^;sif*^aF' H'3i'fi2i.'*E' 'I'7 Q QT /^l nr'i.CiVi ira O/'l F1^ i<2C!; sar^ 'ft^./ ?'-a< L'^ii tl UUi li^'£3i.!USi iG!i.i,S;i UCaiCU I^-.S.S',' ^ftJ il iCAUl S5 F'f' i u/' i^<&u^?u yy i c&| No.3 Divisiona! Forest Officer informing him that his ciaim for back w v»as co.nsidered in compiiance 'with the judgment and decree passe the Civil Judge Class-li, Gariyaband in Civii Suit No. 2 A/85 and has rejected on the principie of "no work no pay". 'a on i! on the saent raaes 1^*1 h^l;' •u u y 2. A thumbnail sketch of the turn of events Is necessary for disposal of the present petition. c?. The petifconer was working as Forest Guard by virtue of order dated 17'12.65. He became a permanent empioyee of the department on 1,3.1977. As on 10.6.1981 he proceeded on unauthorized !eave, his services came to be terminated by order dated 19.7.1982 with effect from 10.05.1982.The said termination order was challsnged by the petitioner in Civil Suit No. 2-A/1985 before Clvil Judge Class-II, Geriysband who vide judgment and decree dated 13.4.1988 set aside the termination order of the petitioner and thus.his ssrvices werc "'Nii.ii: •^l Ki 1 "^— relnstated. However, as regards back wages the trial Court ieft the same to be decided by the department arter giving adequate opportunity to the petitioner and if u!timate!y the petitioner is founa' to be entitled for the same in accordance with law it should ae given to him. The department chailenged the judgment and a'ecree passed by the triaS Court before the District Judge, Raipur under Sectlon 96 read wifh Order 41 Rule 1 of the Coae of Civii Procedure which on formation of the Madhya Pradesh State Administrative TnbynaS-eame to be transferred there and it was registered as T.A. No. 44/1992. The Tribunal after hearing the psrtles dismissed the appeai fiied by the department vide order dated 24.9.93. It is not a'isputed that no appea! has been preferred by any one against the order of the Tribunai dated 24.9.93 and thu's the impugned judgmenf and decree dated 13.4.1988 attained finality. 4. Counsei for the petitioner submits that after passing of the judgment and decree dated 13.4.1988 by the triai Court, the petltioner approached the department for giving him permission to join his duties but the department adamantly refused the petitioner to do so on the pretext of appea! having been preferrea' against the judgrnent and decree of the trisl court. Uitjmateiy after the judgment and decree of the trial Court was affirmea' by the Tribunat vide order dated 24.9.93 the petitioner was permitted to join his duties on 21.2.94 as Forest Guard. According to the counsel for the petitioner even after a consistent and persistent request made by the petltioner for permitting him to join his dutles and reiease his back wages in the llght of the judgment and decree of the trial Court, instead of taking any positive view of the matter, the department itraightaway informed ths petitioner by a communication ietter dated 12.9.97 that a decision had atready been taken by the respondent No.1 on 4.5.94 whereby he has been held as disenSitied for the back wages claimed by hirn for the period 10.6.81 to 20.2.94. He further submits that the petitioner has'not been given any opportunity of hearing in compiiance of the judgment and decree passed by the triai Court and the decision taken by the respondent No.1 regarding denial of back wages to the petltioner is a unilateral one and therefore ihe petitioner is entitled for back wages right from the date from whlch the petitioner allegedly absented from his duties for She reason that his termination for his aiieged unauthorized absence has been set aside by the trla! Court which ultimateiy came to be sffirmed by the Tribunai in an appeal prererred by r^O -3- the department. Counsei for the petltioner laid much stress ar, the point that the petitioner was not engaged in any gainfui employme.nt after his termination from services; rather he kept himself under the disposal of the authorities concerned IQ oblige him by giving joining in compliance of the judgment and decree passed by the tria! Court. Thus, in totality the argument ofthe petitioner is that under no circumstance the petltioner csn be denied the grant of back wages foliowing the principle of "no work no pay". ; • -- 5. Countering the submissions of the counsei for the petitloner, iearned Dy. Govt. A.dvocate appearing for the respondents submits that the order dated 12.9.97 is merely a communication of the order dated 4.5.94 by which the services of the petitloner were terminated and therefore instead of order dated 12.9.97 the petitioner should have assaited the order dated 4.5.94. He further submits that by letter dated 15.3.94 issued by the Divisional Forest Officer the petitioner vi/as asked to remaln present on that very day and put Torth his case and thus he v/as given due opportunity of hearing in compiiance with the judgment and decree passed by the trial CoUi-t. Accordlng to him, whiie on 15.3.94 the proceedings were on, ihe petitioner appeared before the Divisional Forest Officer and pleaded that he had left his headquarter on the basis of oral permisslon from his superior. Thus as the petitioner himself has admitted that he left the headquarters on oral permission of his supenor, he is not entitled for any 6. Replying to fhis submission of the State counsei it has besn argued on behalf of the petitioner that the record maintained by the authorities is self eioquent as to the manner in v/hich the opportunity of hearing was given to the petitioner. According to him, letter dated 1 5.3.94 was issued to the petitioner asking him' to remain present before the authorities concerned on ibat very day and vi/hen the petitloner did that, hls signatures 'A'ere o&tained on a blank paper and ail the proceedings have been draviiT. behind the back of the petitioner. !t is also submitted on behalf of the petitloner that he has also assailed the order dated 4.5.1994 by was denied the backwages claimed by him. -^f- 7. Relying on the judgment or' the Supreme Court in the matter of Unson of Ina'ia Vs. K.VJanakiraman learned counsel for the petitioner submits thst normally the ruie of "no work no pay" js not applicable to the cases where though the empioyee Is willjng to work but he is kept away by the authorities for no fault of his. Further placing reiiance on the jua'gment of the Supreme Court in the matter of State of Kerala & Others Vs. E.K.Bhaskaran PIIEai it is submitted by the counsel for the petitioner that the principle of "no:Wori<- no pay" cannot be acceptea as a thumb rule and the monetary beneflt can be granted from the date of institution of the suit. Counsel for the petifioner also piaced reliance on the decision of the Supreme Court in the ma'iter of U.P.S.R.T.C. Ltd. Vs. Sarada Prasa< Misra & Another and submitted that the back wages can be awarded from the date of award. According to him, in this case the judgment and decree was passed bythe trial Court on 13.4.88 in favourofthe petitioner and from that very day the petitioner had been requesting the authorities to give him joining but the authoritles on the pretext of pendency of the appeal d!d not allow him to join. This fact has been admitted by the State government !n paragraph 12 of its return saying that "s/nce the non- appS'icants prefer an appeai against the jucfgment and decree of Civil Judgs Class-11, Ganyaband, the applicant was not permitted to jo'm". He further submits thai even in spite of the judgment and decree passed by the trial Court the petitioner was made to wander from pittar to post and uitimately was permitted to join his duties only on 21.2.94 which Is nothing but hig.h handedness on the part of the authorities. On the other hand, placing reliance on the decision of the Court in the matter of Airport Authority of indta & Others Vs. Nath Das @ S.N.Das learned counsei for the submitted that nobody is entitled to claim the wages r'or the remain absent from work without leave. 9. -I have heard counsei for the parties at considerabie iength and gone through the documents fiied by the respective parties. :e 10. It is not in dispute that termination order of the petitioner dated 19.7.82 terminating his services with effect from 10.6.82 was set aside by 'AIR 1991 SC 2010 ' (2007) 6 SCC 524 3 (2006) 4 SCC 733 4 A;R 2008 SCC 2896 ^} ^ s"- Civii Judge Ciass-i!, Gariyaband vide its judgment and decree dated 13.4.88 and the First Appea! preferred by the State before the District Judge which was later transferred to the State Administrative Tribunal on fts formation was also.dismissed vide its order dated 24.9.93. It is also not cjisputeQ' that after the termlnation being set aside by the trial Court, the pefitioner was not permitted to join his duties on the pretext of pendency of appeal and it is only after the dlsmlssa! of Shat appeai, the petitioner was permitted to join Srs duties on 21.2.94. 11. Now the question remains whether the impugned order dated 12.9.97 regarding denial of back wages to the petitioner Is justified or not. 12. In respect of grant or denia! of back wages there is no straight jacket formula. There are host of factors llke manner and method of appointment such as whether it was ad hoc, short term, daily wage, temporary or permanent and aiso the period he served the department. It is settled law that grant of back wages is discretionary and fhe Court shouid not be rigid or mechanical but flexlble and realistic and She back wages shou!d be awarded keeping in vievi/ the justice of equity and good conscience. in this case, it is not disputed that the petitioner joined the department as Forest Guard on 17.12.65and acquired the status of permanenf employee on 1.3.1977 and thus, he was a permanent empioyee of the State government and had rendered more than 17 years of service at the time of passing of termination order and therefore his case cannot be compared to a short term or intermitfent & daiiy wage empioyment. 13. ln the considered opinion of this Court, the order dated 12.9.97 communicating the petitioner in respect of deniai of back wages is not in accordance with law because for no fault of his the petitioner was not permitted to join his duties and therefore the analogy drawn by the State thaS the petitioner is not entitied for back wages on account of the principle ofjno work no pay' is wholly unjusfified in the facts and circumstances of this case. 14. Consequently, in view of the aforesaid anaiytica! dissection of the facts and figures, this court is of the view that the impugned order dated 4.5.1994 denying the back wages to the petitioner and the order 12.9.97 communicating the said denial to him are wholly arbitrary, iliega! and contrary to She provisions of law. Thus, She petition being weil merited is -e- hereby allowed. The respondents are directed to grant full back wages to the petitioner from 13.4.88, the date on which the termination orderbfthe petitioner wasset aside bythetrial Courtto 21.2.94, the date on which the petitioner resumed his duties with all consequential benefits. As regards the interregnum period from 19.7.1982 to 13.4.1988 (from the date of termination till the judgment of the trial Court setting aside the sald order), the petitioner would be entitledto get a lump sum amount of Rs. 25,000 which would include the Qost ofthis petition also.1 Sd/- PritinkerDiwaker Judge .L. pT-^-