# Ali Hussain v. State of U.P. and others

- **Citation:** (2006) 3 ILRA 1195
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006
- **Case number:** Civil Misc. Writ Petition No. 31065 of 2004
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ali-hussain-v-state-of-u-p-and-others-54436
- **Pages:** 6

## Headnote

Constitution of India, Art. 226-claim for
back wager-where the termination order
quashed by court-No specific direction
for back wages-it can not be claimed as a
matter
of
right-unless
specifically
pleaded-material
produced
to
substantiate his pleading-not entitled for
back wages.

Held: Para 18

In view of the above discussions and the
facts that the petitioner has failed to
plead and prove that he was not
gainfully employed from 14.11.73 to
7.10.98, the petitioner is not entitle for
payment of back wages as of right
particularly when the Court in its wisdom
had not exercised the discretion in his
favour at the time when his writ petition
against the order of termination was
allowed in part. As there was no
direction for payment of back wages
therein on reinstatement and the claim
for back wages has been rejected by the
authorities on a uniform and a rational
policy decision, it would not be proper to
interfere in exercise of writ jurisdiction.
Case law discussed:
AIR 2006 SC-586
J.T. 2005 (6) SC-461
(1979) 1 SCR 563
2002 (6) SCC-41
J.T. 2002 (5) SC-143
AIR 2002 SC-2676
2005 (6) SCC-36
2005 (5) SCC-124
2006 (2) SCC-711
2005 (2) SCC-373
AIR 1988 SC-2181
AIR 2001 SC-1684
1996 SCSR (15)-726
AIR 1991 SC (2)-2010

## Text

1194 INDIAN LAW REPORT ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.9.206

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 31065 of 2004

Ali Hussain

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Daya Shanker Mishra
Sri Chandra Kesh Mishra
Sri Bipin Bihari

Counsel for the Respondents:
C.S.C.

Constitution of India, Art. 226-claim for
back wager-where the termination order
quashed by court-No specific direction
for back wages-it can not be claimed as a
matter
of
right-unless
specifically
pleaded-material
produced
to
substantiate his pleading-not entitled for
back wages.

Held: Para 18

In view of the above discussions and the
facts that the petitioner has failed to
plead and prove that he was not
gainfully employed from 14.11.73 to
7.10.98, the petitioner is not entitle for
payment of back wages as of right
particularly when the Court in its wisdom
had not exercised the discretion in his
favour at the time when his writ petition
against the order of termination was
allowed in part. As there was no
direction for payment of back wages
therein on reinstatement and the claim
for back wages has been rejected by the
authorities on a uniform and a rational
policy decision, it would not be proper to
interfere in exercise of writ jurisdiction.
Case law discussed:
AIR 2006 SC-586
J.T. 2005 (6) SC-461
(1979) 1 SCR 563
2002 (6) SCC-41
J.T. 2002 (5) SC-143
AIR 2002 SC-2676
2005 (6) SCC-36
2005 (5) SCC-124
2006 (2) SCC-711
2005 (2) SCC-373
AIR 1988 SC-2181
AIR 2001 SC-1684
1996 SCSR (15)-726
AIR 1991 SC (2)-2010

(Delivered by Hon'ble Pankaj Mithal, J.)

1. The one and the only question
which arises and has been raised in this
petition
under
Article
226
of
the
Constitution of India is whether the
petitioner whose termination was set aside
is entitled to back wages for the period
from the date of his termination till his
reinstatement even though he had not
worked during this period.

2. The petitioner-Ali Hussain has
joined PAC on 27.10.1966. On 22.5.1973
a case crime no.506/73 was registered
against
him
on
account
of
his
participation in the PAC revolt of 1973. In
the Sessions Trial No.556/74 State Vs.
Ram Awadh and others, the petitioner
was acquitted on 23.12.1981 of the
criminal charges. The State Government
filed an appeal No.2262/82 against his
acquittal. The appeal was dismissed by
the High Court vide judgment and order
dated 21.12.1992. Further, the S.L.P. of
the State Government in the Hon'ble
Supreme Court was also dismissed on
4.8.1994. In the meantime due to his
involvement in revolt, the Inspector
General of PAC, Bareilly dismissed him
from
service
on
14.11.1973.
The
termination order was challenged by the
petitioner before U. P. State Public
3All] Ali Hussain V. State of U.P. and others 1195
Services Tribunal. The claim of the
petitioner was dismissed on 20.1.1981.
Against the order of the Tribunal, the
petitioner filed a writ petition no.8063/81.
The said writ petition was partly allowed
by the High Court vide judgment and
order dated 18.3.1998. The High Court set
aside the order of the Tribunal dismissing
the claim of the petitioner and quashed
the order of dismissal of the petitioner
dated 14.11.1973 with the direction to
reinstate the petitioner in service within
two months but no direction was given for
payment of back wages rather the matter
of payment of back wages was relegated
for decision to the State Government i.e.
Dy. Director General of PAC, Lucknow.
In pursuance of the order of High Court,
the petitioner was reinstated on 7.10.1998
and his representation for back wages
from 14.11.1973 up to 7.10.1998 was
rejected vide order dated 20.2.2003 on the
ground that since the petitioner had not
worked during the aforesaid period he is
not entitle for any back wages.

3. The petitioner has, therefore,
challenged the order dated 20.2.2003
rejecting his representation for back
wages and has prayed for payment of
back wages for the period 14.11.73 to
7.10.98. The petitioner by an amendment
which was allowed on 3.7.2006 has also
challenged the Government Order dated
15.4.2004
which
provides
for
non
payment of back wages to all PAC
personal whose services were terminated
on account of their participation in the
PAC
revolt
of
1973
but
were
subsequently reinstated on the principle of
'No work No pay'.

4. I have heard Sri Bipin Bihari,
learned
counsel
appearing
for
the
petitioner and learned Standing Counsel.
5. Learned counsel for the petitioner
has argued that once the termination order
of the petitioner has been set aside on
merit, the petitioner is entitled to be
reinstated in service with full back wages
and there is no justification for denying
the payment of back wages as there was
no fault on the part of the petitioner.
Learned counsel for the petitioner further
contended that in similar circumstances in
a very large number of cases relating to
PAC revolt of 1973 itself many of the
employees have been reinstated with full
benefits of service and back wages.
Therefore, the action of the respondents in
not awarding back wages to the petitioner
is arbitrary and discriminatory in nature.
On the other hand, learned Standing
Counsel has submitted that the petitioner
has not worked for the period from
14.11.1973 to 7.10.1998 and therefore he
cannot be paid back wages for the said
period. Moreover, the petitioner has no
where pleaded in the writ petition that he
was not gainfully employed elsewhere
during that period and as such he is not
entitle to any relief with regard to back
wages. Learned Standing counsel has
placed reliance upon two decisions of this
Court wherein in respect of PAC revolt of
1973 similarly situate employees were
refused relief with regard to payment of
back wages.

6. The law with regard to the
payment of back wages on reinstatement
has under gone a sea change. Previously,
direction to pay full back wages on
reinstatement use to be a regular feature.
However, lately a pragmatic approach had
been adopted and it has been laid down
that the payment of full back wages is not
mechanical and automatic and no precise
formula can be laid down for awarding
back wages and it would depend upon the
1196 INDIAN LAW REPORT ALLAHABAD SERIES [2006
facts and circumstances of each case.
Hon'ble Supreme Court in one of the
latest
decision
State
Brassware
Corporation. Ltd. & Anr. Vs. Udai
Narain Pandey, AIR 2006 SC 586, after
considering all previous decisions in this
regard observed that the payment of full
back wages which used to be normal
result of reinstatement is not automatic
nor it should be granted mechanically
only for the reasons that the termination
was held to be invalid. A similar view
was expressed by Hon'ble Supreme Court
in M.L. Binjolkar Vs. State of Madhya
Pradesh JT 2005 (6) SC 461 wherein it
was observed as follows:-

"The earlier view was that whenever
there is interference with the order of
termination or retirement, full backwages were the natural corollary. It has
been laid down in the cases noted above
that it would depend upon several factors
and the Court has to weigh the pros and
cons of each case and to take a pragmatic
view....."

In Hindustan Tin Works (P) Ltd.
Vs. Employees of Hindustan Tin Works
(P) Ltd. (1979) 1 SCR 563, it has been
held
that
though
the
relief
of
reinstatement with continuity in service
can be granted when termination is found
to be invalid, it does not lay down in
absolute terms that the right to claim back
wages
must
necessarily
follow
reinstatement in service.

7. Hon'ble Supreme Court followed
the above decision in Hindustan Motors
Ltd. Vs. Tapan Kumar Bhatacharya
(2002) 6 SCC 41: JT 2002 (5) SC 143:
AIR 2002 SC 2676 and emphasized that
in granting the relief of back wages
application of mind is imperative. In other
words, the payment of full back wages
cannot be a natural consequence of
reinstatement.

8. In the case of Andhra Pradesh
State Road Transport Corporation &
Ors Vs. Abdul Kareem (2005) 6 SCC
36, Hon'ble Supreme Court even denied
continuity of service to the employee who
was directed to be reinstated with
continuity in service but without back
wages.

9. It has further been laid down in
Allahabad Jal Sansthan Vs. Daya
Shanker Rai and others (2005) 5 SCC
124 as under:-

"A law in absolute terms cannot be
laid down as to in which cases, and under
what circumstances, full back wages can
be granted or denied. The Labour Court
and/ or Industrial Tribunal before which
industrial dispute has been raised, would
be entitled to grant the relief having
regard to the facts and circumstances of
each case. For the said purpose, several
factors are required to be taken into
consideration. It is not in dispute that
Respondent 1 herein was appointed on an
ad hoc basis; his services were terminated
on the ground of a policy decision, as far
back as on 24.1.1987. Respondent 1 had
filed a written statement wherein he had
not raised any plea that he had been
sitting idle or had not obtained any other
employment in the interregnum. The
learned counsel for the appellant, in our
opinion, is correct in submitting that a
pleading to that effect in the written
statement
by
the
work-man
was
necessary. Not only no such pleading was
raised, even in his evidence, the workman
did not say that he continued to remain
unemployed. In the instant case, the
3All] Ali Hussain V. State of U.P. and others 1197
respondent herein had been reinstated
from 27.2.2001."

10. In the present case, the petitioner
has nowhere pleaded in the writ petition
that he was sitting idle and was not
gainfully employed during that period for
which he is claiming back wages. The
petitioner has not even disclosed any
where as to how he spent the said period
and as to how he was able to manage his
affairs for all these years without being
employed
elsewhere
or
doing
any
business etc.. A faint and a vague attempt
has been made by filing a supplementary
affidavit stating in one sentence that after
termination of service, the petitioner was
nowhere gainfully employed. However,
the said averment in the supplementary
affidavit is not enough and sufficient
pleading to establish beyond doubt that
the petitioner had remained unemployed
or without work or was not having any
income during the period 14.11.73 to
7.10.98.
It
is
absolutely
beyond
imagination to believe that the petitioner
had
not
been
gainfully
employed
elsewhere
for
about
25
years
continuously.

11. It was the cardinal duty of the
petitioner to have established beyond
doubt that he was not gainfully employed
during the period in dispute and the
burden to prove the same was upon him
only as it has been held by Hon'ble
Supreme Court in State of M.P. & Ors.
Vs. Arjunlal Rajak (2006) 2 SCC 711 as
follows:-

"The onus to prove that he had
completed 240 days of work or he had not
been gainfully employed within the said
period was on the workman."

12. A similar view was also
expressed
in
Kendriya
Vidyalaya
Sangathan & Ars. Vs. S.C.Sharma
(2005) 2 SCC 373 and it was laid down
that initial burden lies upon the employee
to prove that he was not gainfully
employed and since the employee had
neither pleaded nor placed any material to
establish that he was not gainfully
employed. It was not proper to grant back
wages.

13. It is settled principle of law that
the party has to plead his case and
produce material to substantiate his
pleadings and in the absence of the
pleadings or incomplete pleadings, the
Court is under no obligation to consider
the point which has not been taken and
substantiated. In Bharat Singh and Ors.
Vs. State of Haryana and Ors, AIR
1988 SC 2181, Hon'ble Supreme Court
observed that in a writ petition, the
petitioner must plead and prove relevant
facts by evidence. If the facts are not
pleaded and the evidence in support of
such facts is not brought on record, the
Court is not bound to entertain the point
so raised in as much as in a writ petition
not only the facts are required to be stated
but the evidence in support thereof is also
required to be pleaded and brought on
record.

In M/s Atul Castings Ltd. Vs.
Bawa Gurvachan Singh, AIR 2001 SC
1684, the Hon'ble Apex Court observed as
under:-

"The findings in the absence of
necessary
pleadings
and
supporting
evidence cannot be sustained in law."

14. In view of the above facts and
dictum of law, in the absence of proper
1198 INDIAN LAW REPORT ALLAHABAD SERIES [2006
pleadings and material in support, it
cannot be accepted that the petitioner had
remained unemployed and without any
work for about 20 years so as to entitle
him back wages for the period in dispute.

15. In support of his averments,
learned counsel for the petitioner has
placed reliance upon the decision of
Hon'ble Supreme Court in the case of
Ramesh Chander & Ors. Vs. Delhi
Administration & Ors., 1996 SCSR (15)
726. The said judgment and order of
Hon'ble Supreme Court is distinguishable
and has no application in the facts and
circumstances of the present case as in
that case reinstatement was ordered with
back wages and all other consequential
benefits on the ground of discrimination
as some other similarly situate employees
were given the benefit of back wages.
However, in the present case, the High
Court while setting aside the order of
termination
has
only
directed
for
reinstatement
without
any
order
of
payment of back wages. The point of
discrimination, if at all was available to
the petitioner at that time, but it was not
raised or if raised was not considered and
decided in his favour. Therefore, the point
of discrimination is not available to the
petitioner in this writ petition being barred
by principles of constructive res judicata
as enshrined by Section 11 Order II Rule
3, C.P.C. The learned counsel for the
petitioner has also placed reliance upon
few decisions of the High Court wherein
directions were issued for payment of
back wages to the similarly situate PAC
personnel who have participated in the
PAC revolt of 1973. However, the said
judgments and orders of the High Court
are of no help to the petitioner as in all of
them directions were issued while setting
aside the termination order for not only of
reinstatement but for payment of back
wages. In some cases, back wages were
given under the threat of contempt of
Court.
Therefore,
there
is
no
discrimination.

16. Learned counsel for the
petitioner has also relied upon another
case of Hon'ble Supreme Court in Union
of India etc. Vs. K.V. Jankiraman etc.
reported in 1991 (5) Service Law
Reporter 602: AIR 1991 SC (2) 2010
wherein it has been observed that the
normal rule of " no work no pay" is not
applicable where the employee was
willing to work but was kept away from
the work by the authorities and there was
no fault on the part of the employee. The
said case law is of no help to the
petitioner as it does not provide that in
every case of reinstatement where there is
no fault of the employee, the payment of
back wages should be made. The High
Court in its wisdom has not directed for
payment of back wages and has left the
matter at the discretion of the authority
and the authority on due consideration on
the principle of "no work no pay" and the
policy decision had refused to award back
wages. Therefore, the decision can not be
faulted with unless it is established to
arbitrary and unreasonable.

17. On the other hand, learned
Standing Counsel has placed reliance
upon the decision of this Court in Writ
Petition No.3676 of 2003 Ram Briksha
Singh and Ors Vs. State of U.P. and Ors.
dated 24.10.03 This matter also related to
the similarly situate PAC personnel
wherein their claims for back wages were
rejected even by the High Court as they
had not pleaded that they were not
gainfully employed for the period of
which they were claiming the back wages,
3All] Krishna College of Law, BijnorV. State of U.P. and others 1199
particularly, when there was no direction
by the Court earlier for their reinstatement
with full back wages.

18. In view of the above discussions
and the facts that the petitioner has failed
to plead and prove that he was not
gainfully employed from 14.11.73 to
7.10.98, the petitioner is not entitle for
payment of back wages as of right
particularly when the Court in its wisdom
had not exercised the discretion in his
favour at the time when his writ petition
against the order of termination was
allowed in part. As there was no direction
for payment of back wages therein on
reinstatement and the claim for back
wages has been rejected by the authorities
on a uniform and a rational policy
decision, it would not be proper to
interfere in exercise of writ jurisdiction.
Moreover, even in equity it would not be
proper after 33 years to award back wages
to the petitioner for the period of 25 years
i.e.
Between
14..11.73
to
7.10.98
specifically when it is admitted that the
petitioner has not worked during the
above period.

19. The writ petition, therefore,
lacks merit and is, hereby, dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2006

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No.17386 of 2006
Connected with
Civil Misc. Writ Petition No.17412 of 2006
Civil Misc. Writ Petition No.17765 of 2006
Civil Misc. Writ Petition No.17160 of 2006
Civil Misc. Writ Petition No.17455 of 2006

Krishna College of Law, Bijnor

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Anurag Khanna

Counsel for the Respondents:
Sri Govind Saran
S.C.

Constitution of India Art. 226-Admission
in Management Quota- Admission in LLB
three years and five years course-all the
candidates from merit list got admittedmanagement admitted some student.
Under
management
Quota
as
the
numbers of seats was lying vacant-after
accepting the examination fee-university
can not refused such students-even if
the university unable to recommend the
deserving students or merit-directions
issued accordingly.

Held: Para 13

The Government or the Universities can
have
only
regulatory
approach
but
certainly not the approach that would
destroy
the
educational
atmosphere
which is being created in the country by
participation/ establishment of these
colleges in the field of education, hence
every seat filled up by the institution is
precious and cannot be permitted to