Case: CHIEF REGIONAL MANAGER UNITED INDIA INSURANCE COMPANY LIMITED Vs. SIRAJ UDDIN KHAN

in CR (W) No. 5715 of 1986 which had directed that the respondent be paid 50% of the back wages for the period from 17-10-1985 to 10-11-1995 should be complied with.9. The learned counsel for the appellant has pointed out that as the respondent had not attended to his duties for almost 15 years despite having been called upon to do so repeatedly, the direction of the Division Bench to grant him back wages from 17-10-1985 to 10-11-1995 was clearly not justified on the principle of ?no work no pay?. She has pointed out that the appellant Authority would have been fully justified even if it had dismissed the respondent from service, but on the contrary, a huge benefit had already been given to him as he had been taken back in service despite having remained absent for almost fifteen years.10. The learned counsel for the respondent has, however, supported the judgment of the Division Bench. We are of the opinion that in the light of the fact that the respondent did not report for duty for 15 years, there was no justification whatsoever to grant him any back wages on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification. We also find that the judgment dated 13-8-1999 which had attained finality had directed as under:?(a) Insofar as the salary of the writ petitioner is concerned during the period he stayed away from the work, the respondent Airports Authority of India, is directed to consider the matter sympathetically and, if it is permissible under its rules, allow to him half of the salary and other benefits.?11. This claim was considered by the competent authority and rejected for valid reasons. We are, thus, unable to endorse the High Court?s order for payment of 50% back wages for the period from 17-10-1985 to 10-11-1995 which are far in excess of the directions in the order dated 13-8- 1999. We accordingly allow this appeal, set aside the order of the Division Bench and restore the order of the learned Single Judge dated 15-4-2004.?19. This Court held that there was no justification whatsoever to grant any back wages to the respondent on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification.20. We may further notice the judgment of this Court, which has also been relied on by the respondent in his counter affidavit, i.e., judgment of this Court in Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigam Limited and Others (2016) 16 SCC 663). In the above case, the appellant was retired from service on 31.12.2002, even though he would have, in the ordinary course, attained his date of retirement on superannuation, only on 31.12.2005. The appellant assailed the order of retirement, which was allowed by learned Single Judge. Learned Single Judge has denied the back wages to the appellant on the principle of ?no work no pay?. The order of learned Single Judge was assailed by the appellant by filing a Letters Patent Appeal, which too was dismissed. This Court allowed the appeal of the appellant and made following observations in paragraph Nos. 3 and 4:-"3. Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31-12-2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilised the services of the appellant for the period from 1-1-2003 to 31-12-2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1- 1-2003 to 31-12-2005, the respondent cannot be allowed to press the self-serving plea of denying him wages for the period in question, on the plea of the principle of ?no work no pay?.4. For the reasons recorded hereinabove, we are satisfied, that the impugned order passed by the High Court, to the limited extent of denying wages to the appellant, for the period from 1-1-2003 to 31-12-2005 deserves to be set aside. The same is accordingly hereby set aside.?21. This Court held in the above case that; having restrained the appellant from rendering his services with effect from 1-1-2003 to 31-12-2005, the respondent cannot be allowed to press the plea of the principle of ?no work no pay? for denying the wages. In the above case, the appellant was restrained from working due to order of retirement dated 31.12.2002, due to which he could not work till his normal retirement. When the order dated 31.12.2002 was set aside, automatically, he became entitled for back wages and the principle of ?no work no pay? was not attracted.22. In the present case, as noted above, the respondent was not kept away from work by any order of the appellant. The order of termination of his services/dismissal was passed on 26.06.2012, after his retirement on 20.06.2012, which in no manner prohibited the respondent from working. The respondent during submission has submitted that he was illegally transferred to Branch Office, Jaunpur from Allahabad. He was suffering from a disability of more than 40% and he could not have been transferred to another place. There is nothing on record to indicate that transfer of respondent from Branch Office, Allahabad to Branch Office, Jaunpur was at any time set aside or withdrawn. The salary upto 14.05.2009 was allowed to the respondent on account of setting aside of the order dated 14.05.2009, which was with all consequential benefits but with regard to entitlement of salary after 14.05.2009 to 20.06.2012, there has been no adjudication by the High Court, which is apparent from judgment of the High Court dated 03.07.2018, as extracted above.23. Learned Single Judge having itself not determined the entitlement of respondent to receive salary after 14.05.2009 to 20.06.2012, it ought to have directed the appellant to consider the entitlement and take a decision thereon.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]A perusal of the judgment of learned Single Judge dated 29.05.2015 indicates that although learned Single Judge has set aside the order dated 26.06.2012, but there was no order for payment of back wages or consequential benefits. Learned Single Judge has set aside the order dated 26.06.2012 and has left the matter there.There is clear difference between the direction of the High Court insofar as setting aside the order dated 14.05.2009 is concerned and insofar as setting aside the order dated 26.06.2012 is concerned, whereas there is a clear direction for payment of consequential reliefs while setting aside the order dated 14.05.2009 there is no direction with regard to payment of salary while setting aside the order dated 26.06.2012, hence the question was required to be gone into by learned Single Judge while deciding the Writ Petition No.61102 of 2017. We may also notice the consideration of learned Single Judge while noticing the claim of the respondent for quashing and setting aside the order dated 26.06.2012.There is no adjudication regarding claim of salary or back wages to the respondent in the impugned judgment of learned Single Judge for the period 15.05.2009 to 20.06.2012. Learned Single Judge was of the opinion that in view of the setting aside of the order dated 26.06.2012, payment of salary is automatic, which view of the Single Judge is not correct. The present is not a case where the respondent was dismissed from the service and consequent to dismissal, he could not work and when dismissal was set aside, he will be automatically entitled for back wages.We may hasten to add that present is not a case where respondent was kept away from the work on account of dismissal. Admittedly, the respondent attained the age of retirement on 20.06.2012 and order terminating his services was passed only on 26.06.2012, which was rightly held to be ineffective.18. We may notice another judgment of this Court in Airports Authority of India and Others Vs. Shambhu Nath Das alias S.N. Das, (2008) 11 SCC 498.   In the above case, the respondent did not join after expiry of the leave. The respondent was issued a warning that unless he joins on or before 30.10.1985, failing which it would be presumed that he had voluntarily abandoned his service with the consequence that his name would be struck off the rolls with effect from 01.11.1985. The said order was challenged by the respondent and learned Sigle Judge on 10.11.1995 directed the Airports Authority of India to allow the respondent to join duty but it was held that he shall not be entitled for the arrears of pay for the period he was absent. The order of learned Single Judge was again challenged by the respondent without joining. The Division Bench set aside the order of the learned Single Judge and remanded the matter back to the learned Single Judge. Learned Single Judge directed the appellant to reinstate the respondent and further directed that insofar as the salary of the writ petitioner is concerned, during the period he stayed away from the work, Airports Authority of India, is directed to consider the matter sympathetically and, if it is permissible under its rules, allow to him half of the salary and other benefits during the period from 17.10.1985 till 10.11.1995. The Airports Authority of India accepted the judgment and allowed him to join w.e.f. 01.11.1999 and passed an order on 14.05.2002 holding that the period of unauthorised absence was to be treated as dies-non and the claim for back wages was accordingly disallowed on the principle of "no work no pay". The order dated 14.05.2002 was once again challenged by the respondent claiming back wages, which was allowed by the learned Single Judge. On further denial of claim, matter was taken by respondent to learned Single Judge to issue certain directions. Against the learned Single Judge?s Order, matter was taken in appeal before Division Bench, where direction to pay 50% of back wages was issued.This Court held that there was no justification whatsoever to grant any back wages to the respondent on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification.In the present case, as noted above, the respondent was not kept away from work by any order of the appellant. The order of termination of his services/dismissal was passed on 26.06.2012, after his retirement on 20.06.2012, which in no manner prohibited the respondent from working. The respondent during submission has submitted that he was illegally transferred to Branch Office, Jaunpur from Allahabad. He was suffering from a disability of more than 40% and he could not have been transferred to another place. There is nothing on record to indicate that transfer of respondent from Branch Office, Allahabad to Branch Office, Jaunpur was at any time set aside or withdrawn. The salary upto 14.05.2009 was allowed to the respondent on account of setting aside of the order dated 14.05.2009, which was with all consequential benefits but with regard to entitlement of salary after 14.05.2009 to 20.06.2012, there has been no adjudication by the High Court, which is apparent from judgment of the High Court dated 03.07.2018, as extracted above.23. Learned Single Judge having itself not determined the entitlement of respondent to receive salary after 14.05.2009 to 20.06.2012, it ought to have directed the appellant to consider the entitlement and take a decision thereon.