Airport Authority Of India & Ors vs Shambhu Nath Das @ S.N. Das

3. The respondent, Shambhu Nath Das, a resident of Kolkata, who was posted as an Assistant Engineer with the appellant authority at Kolkata was transferred to Delhi. He reported for duty at Delhi and served for 7 2 days and thereafter took leave for 18 days from 26th March 1985 to 12th April 1985 on account of his grandmother's illness. He did not rejoin duty thereafter but made several applications for extension of leave on medical grounds. The appellant accordingly directed him, vide order dated 12th August 1985, to appear before a Medical Board at Kolkata at 11 a.m. on that day. The Medical Board in its report opined that the respondent was physically fit and, therefore, capable of resuming duty. This information was also conveyed to the respondent vide letter dated 9th September 1985 and he was advised to report for duty immediately failing which action would be taken against him as per the rules. Despite this warning, however, the respondent did not report for duty. A Memorandum dated 17th October 1985 was also addressed to the respondent calling upon him yet again to resume duty on or before 30th October 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 3 from 1st November 1985. The respondent, however, still did not report for duty but challenged the memorandum dated 17th October 1985 by filing Writ Petition No. 5715 (W) of 1986 which was ultimately disposed of by a Single Judge of the Calcutta High Court vide order dated 10th November 1995 with a direction to the appellant to allow the respondent to resume duty but with a further direction that he would not be entitled to any arrears of pay and allowances or any other service benefit for the period of his absence. The respondent, however, still did not join duty in terms of the order dated 10th November 1995 but challenged the same by filing Writ Appeal No.3687/1995 before the Division Bench. The Division Bench in its order dated 9th August 1996 set aside the order dated 10th November 1995 and remanded the Writ Petition to the learned Single Judge with a direction that a reasoned order be passed after hearing the contesting parties. The matter was, accordingly, re-heard by the learned Single Judge and it was observed that as the writ petitioner (now respondent) 4 had overstayed his leave, the appellant authority would have been justified in dismissing him from service but after having observed as such, gave the following directions on 13th August 1999:

4. A subsequent order of the learned Single Judge vide order dated 31st August 1999 modified the order of 13th August 1999, to the extent that the period of consideration of salary etc. was to be limited to "the period from 17th October 1985 till 10th November 1995". The appellant accepted the judgment of the learned Single Judge and allowed the respondent 5 to join duty with effect from 1st November 1999 leaving the issue of payment of back wages to be decided subsequently. The appellant thereafter gave a personal hearing to the respondent on 31st January 2002 and passed an order dated 14th May 2002 holding that the period of unauthorized 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 14th May 2002 was once again challenged by the respondent by filing Writ Petition No. 12321-W/2002 before the Calcutta High Court claiming, inter-alia, back wages for the entire period of his unauthorized absence. This Writ Petition was also allowed by the learned Single Judge in his order dated 7th August 2003 and a direction was issued that the question of payment of back wages be decided afresh by the appellant. The matter was once again taken up by the appellant and the plea for back wages was yet again denied by order dated 2nd/5th January 2004. This order was challenged by the respondent by way of Writ Petition No.4283 (W) of 2004 6 which was, however, dismissed by a learned Single Judge of the High Court on 15th April 2004 observing as under:

In that view of the matter, the approach of the petitioner, accordingly to this court, is anything but bonafide. Accordingly, this petition is dismissed with costs assessed at 200 G.Ms."

7. 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 17th October, 1985 to 10th November, 1995 which are far in excess of the 10 directions in the order dated 13th August 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 April 2004.

8. The appeal is allowed in the above terms. No order as to costs.