# Court in Harjeet Singh v. State of West

- **Citation:** (2013) 2 ILRA 996
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-20
- **Case number:** Service Single No. 2754 of 2010
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-harjeet-singh-v-state-of-west-42670
- **Pages:** 13

## Headnote

Rule-54(4)-Backwagesdismissal order-set-a-side without back
wages-admittedly
delay
caused
in
disciplinary proceeding by the employer
and not on part of petitioner- held-before
dismissal no show cause notice givenentire exercise being contrary to provision
of section 54(4)-order not sustainable.

Held: Para-40
In the instant matter, from the perusal of
the impugned order dated 25.4.2009, the
position which emerges out is that the
competent authority/opposite party no.4
has set aside the order of dismissal taking a
sympathetic view with a direction that the
petitioner is not entitled for any pay and
allowances for the said period, without
issuing any notice and without affording
any opportunity to the writ petitioner to
make
a
representation,
further
the
competent authority also did not consider
2 All] Ram Autar Shukla Vs. State of U.P. and Ors.
997
as to whether the said period of absence of
duty preceding his termination can be
converted into leave of any kind due or
admissible to the writ petitioner as required
under Sub-rule 4 or Rule 54 of the
Fundamental Rules.

Case Law discussed:
2012(1)ADJ 183; (2011) 2 UPLBEC 1445;
(2009) 2 UPLBEC 1864; (2007) 2 ALJ 527;
(2007) 7 SCC 455; (2011) 1 JT 326; (2009) 2
SCC 592; (2009) 1 SCC 20; (1997) 3 SCC 636;
(2005) 2 SCC 363; (2012) 3 UPLBEC 1881;
2012 (1) ADJ 183; (2011) 2 UPLBEC 1445;
(2009) 2 UPLBEC 1864; (2008) SCC 664;
(2007) 14 SCC 766; (2007) 2 SCC 433; (2003)
2 SCC 212; (1999) 6 SCC 664 58; 1962 Supp.
(1) SCR 315; (1968) 1 SCR 355

## Text

_Characters 0–39,868 of 42,504. This is a partial read: ask again with offset=39868 for what follows._

996 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
present counsel Sri Anoop Trivedi, there
were other counsels for the revisionist
namely Sri B.B. Suri, Sri A.K. Awasthi, Sri
Manish Tiwary, Sri R.K. Awasthi. It cannot
be presumed by any stretch of imagination
that none of the counsel was available for
argument,
therefore,
taking
into
consideration the background and the
conduct of the revisionist, the adjournment
slip was rejected. This Court while passing
the final order has considered the grounds of
revision and the merits of the case.

17. Hon'ble the Apex Court in Hari
Singh Mann (supra) has clearly held that
after signing of the judgment or the final
order, disposing of a case, only the clerical or
arithmetical error can be corrected and in
absence of a specific statutory provisions, the
court becomes functus officio.

18. Hon'ble the Apex Court has further
held that even the inherent powers conferred
under Section 482 Cr.P.C. have to be
exercised sparingly, carefully and with
caution. The legal position is clear that an
inherent powers cannot be invoked for
exercise of a power which is specifically
prohibited by the Code. The matter has been
considered by Hon'ble the Calcutta High
Court in Harjeet Singh Vs. State of West
Bengal (F.B.) (supra) and I agree with the
view of Hon'ble the Calcutta High Court.
With humble regards, I do not agree with the
decisions in Criminal Revision No.163 of
2001 and Criminal Revision No.3629 of
2004 passed by Single Judges of this Court
because the provisions of Section 362
Cr.P.C. are not helping the present revisionist
and the law declared by Hon'ble the Apex
Court in Hari Singh Mann (supra) and
Harjeet Singh Vs. State of West Bengal
(supra) makes it clear that a judgment of the
High Court on appeal or revision cannot be
reviewed or revised except in accordance
with the provisions of the Cr.P.C. In the Code
of Criminal Procedure, there is no provisions
to recall an order passed on the merits.

19. For the facts and circumstances
mentioned above, I do not find any merits
in the submission of learned counsel for
the revisionist to recall an order passed on
merits. The recall application is rejected.
---------
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED: LUCKNOW 20.05.2013

BEFORE
THE HON'BLE ANIL KUMAR, J.

Service Single No. 2754 of 2010

Ram Autar Shukla

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

Counsel for the Petitioner:
Sri Ramesh Kumar Srivastava

Counsel for the Respondents:
C.S.C.
Fundamental
Rule-54(4)-Backwagesdismissal order-set-a-side without back
wages-admittedly
delay
caused
in
disciplinary proceeding by the employer
and not on part of petitioner- held-before
dismissal no show cause notice givenentire exercise being contrary to provision
of section 54(4)-order not sustainable.

Held: Para-40
In the instant matter, from the perusal of
the impugned order dated 25.4.2009, the
position which emerges out is that the
competent authority/opposite party no.4
has set aside the order of dismissal taking a
sympathetic view with a direction that the
petitioner is not entitled for any pay and
allowances for the said period, without
issuing any notice and without affording
any opportunity to the writ petitioner to
make
a
representation,
further
the
competent authority also did not consider
2 All] Ram Autar Shukla Vs. State of U.P. and Ors.
997
as to whether the said period of absence of
duty preceding his termination can be
converted into leave of any kind due or
admissible to the writ petitioner as required
under Sub-rule 4 or Rule 54 of the
Fundamental Rules.

Case Law discussed:
2012(1)ADJ 183; (2011) 2 UPLBEC 1445;
(2009) 2 UPLBEC 1864; (2007) 2 ALJ 527;
(2007) 7 SCC 455; (2011) 1 JT 326; (2009) 2
SCC 592; (2009) 1 SCC 20; (1997) 3 SCC 636;
(2005) 2 SCC 363; (2012) 3 UPLBEC 1881;
2012 (1) ADJ 183; (2011) 2 UPLBEC 1445;
(2009) 2 UPLBEC 1864; (2008) SCC 664;
(2007) 14 SCC 766; (2007) 2 SCC 433; (2003)
2 SCC 212; (1999) 6 SCC 664 58; 1962 Supp.
(1) SCR 315; (1968) 1 SCR 355

(Delivered by Hon'ble Anil Kumar, J.)

1. Heard Shri Ramesh Kumar
Srivastava,
learned
counsel
for the
petitioner, Shri Abhinav Narain Trivedi,
learned Addl. Chief Standing Counsel and
perused the record.

2. Facts in brief as submitted by
learned counsel for the petitioner are that the
petitioner who was working on the post of
Collection
Amin
was
placed
under
suspension in the year 1985. Thereafter, an
enquiry proceeding was initiated against him
and by an order dated 30.06.1986, he was
dismissed from his services. Subsequently,
he made a representation to the competent
authority, but no heed was paid. So,
approached this Court by filing Writ Petition
No.6171 (SS) of 2002 "Ram Avtar Shukla
vs. State of U.P. & Ors.", disposed of by
order dated 2.2.2005, on reproduction reads
as under:-

"Against the order impugned in the
writ petition, the petitioner is said to have
filed a departmental appeal before the
opposite party no.3, which is pending and
till date has not been decided.

It is hereby directed that the appeal
preferred by the petitioner shall be decided by
the said opposite party (Opposite Party No.3)
within a period of three months from the date
a certified copy of this order is served upon
the said opposite party.

With the aforesaid direction, the writ
petition is finally disposed of."

3. Accordingly, on 3.3.2005 petitioner
made a representation to the District
Magistrate, Hardoi for taking necessary
action in compliance of the above said order.

4. By order dated 6.8.2005, the
District Magistrate, Hardoi rejected the
petitioner's representation and upheld the
order dated 30.6.1986.

5. Aggrieved by the said order,
petitioner filed Writ Petition No.7922 (SS) of
2006 "Ram Avtar vs. State of U.P. & Ors.",
allowed by judgment and order dated
3.11.2008, the relevant portion is quoted
herein below:-

"In the result, the writ petition is
allowed
and
order
dated
30.6.1986
(Annexure No.1) dismissing the service of
the petitioner and the appellate order dated
6.8.2005 (Annexure No.2) are hereby
quashed. It is further directed that the
respondents shall proceed with the inquiry
from the stage of issuance of charge sheet
and the inquiry be proceeded with in
accordance with law by observing the
principles
of
natural
justice
and
in
accordance with law laid down by this Court,
expeditiously, say, within a period of two
months from the date of production of a
certified copy of the order.

With the above terms, the writ
petition stands allowed. Costs easy."
998 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

6. As per direction given by this
Court by order dated 3.11.2008 in Writ
Petition No.7922 (SS) of 2006, a charge
sheet has been issued to the petitioner to
which he submitted his reply and after
completing
the
enquiry
proceeding,
enquiry officer/Tehsildar (Judicial) Sadar,
Hardoi submitted an enquiry report dated
28.2.2009. The operative portion of the
same is quoted herein below:-

"उपरो वण
त तय, मा.यायालय
के आदेश व मा.ववध यायालय ारा
ोचरत क गयी #यव$थाओ के आलोक
म' अपचार) कािम
क को दोषी ठहराना
उिचत नह)ं है । य2द आरोपी को दोषी
ठहरा भी 2दया जाये तो संगत अिभलेख
के आभाव म' उसको िस7 नह)ं 2कया जा
सकता है । अतः यह आरोप भी अपचार)
कम
चार) पर िस7 नह)ं होता है ।

जांचा9या सेवा म' ेषत है ।"

7. Thereafter, Sub Divisional
Officer, Tehsil Sadar, District-Hardoi has
passed
the
impugned
order
dated
25.4.2009, the operative portion is quoted
herein below:-

"उ पर$थितय म' प;ावली पर
उपल<ध संपूण
 सा>यो, माननीय सव?@य
यायालय क विधक अवधारणाओ एवं
मा.अपर
मु9य
याियक
मज$Cेट
/2दतीय}हरदोई ारा पारत िनण
यादेश
2दनांक १२.२.१९९९ एवं जांच अिधकार) के
ारा $तुत जांच आ9या,जला शासक य
अिधवा {द)वानी}हरदोई ारा $तुत 2कया
गया अिभमत पर समL वचार 2कया गया
। आरोप सं9या-१ अMप आिशक िस7 व
आरोप सं9या-२ म' अपचार) कम
चार) क
संिधNध पृP भूिमका के काश म' मानवीय
आधार पर अपचार) कम
चार) को वभागीय
काय
वाह) सेवा से अनुप$थित क संपूण

अविध के बना वेतन सेवा म' बहाल 2कया
जाता है एवं Rी रामऔतार शुTला संLह
अमीन तहसील सदर,हरदोई के वU7
चिलत काय
वाह) समािV क जाती है ।"

8. Aggrieved by the order dated
25.4.2009 (Annexure No.1) passed by
opposite
party
no.4/Sub
Divisional
Officer, Tehsil, Sadar, District-Hardoi, the
present writ petition has been filed by the
petitioner.

9. Shri Ramesh Kumar Srivastava,
learned counsel for the petitioner while
challenging the impugned order dated
25.4.2009 (Annexure No.1) passed by
opposite
party
no.4/Sub
Divisional
Officer, Tehsil Sadar, District-Hardoi
submits that once enquiry officer in his
enquiry report dated 25.2.2009 has stated
that on the basis of the material on record,
the petitioner cannot be held guilty and
the charges which have been imposed
against him are not proved, so there is no
justification or reason on the part of the
opposite party no.4 to pass the impugned
order dated 25.4.2009 thereby denying the
back wages to the petitioner in view of the
judgment of this Court in the case of B.
N. Nigam vs. Chairman, State Bank of
India 2012 (1) ADJ 183, Kishori Lal vs.
Chairman, Board of Director (2011) 2
UPLBEC 1445, Govind Lal Srivastava
vs. State of U.P. (2009) 2 UPLBEC 1864
2 All] Ram Autar Shukla Vs. State of U.P. and Ors.
999
and Brijendra Prakash Kulshresth vs.
State of U.P. (2007) 2 ALJ 527, the
impugned order dated 25.4.2009 passed
by opposite party no.4 thereby denying
the back wages to the petitioner is liable
to be set aside. As the petitioner was not
allowed to work and discharge his duties
only due to the act of employer and it
cannot be said that he was illegally or
unauthorizedly absent from duty.

10. Shri Abhinav Narain Trivedi,
learned Addl. Chief Standing Counsel
appearing on behalf of the official
respondents argued that the petitioner was
placed under suspension in the year 1985
and by order dated 30.6.1986, he was
dismissed from his service, on two
charges (a) he was absent from duty
without leave and (b) he had embezzled
the Government money. Thereafter, he
was acquitted by the competent criminal
court in Crime Case No.3/94 by order
dated
12.2.1999.
So,
he
made
a
representation
against
the
order
of
dismissal dated 30.6.1986. Subsequently,
he filed Writ Petition No.6171 (SS) of
2002, disposed of by order dated
2.2.2005. In pursuance of the said
direction, he made a representation to the
authority concerned/District Magistrate,
Hardoi, who rejected his representation by
order dated 6.8.2005, challenged by the
petitioner by filing Writ Petition No.7992
(SS) of 2009 "Ram Avtar Shukla vs. State
of U.P. & Ors.", allowed by order dated
3.11.2008.

11. As per direction given by this
Court, enquiry proceeding has been
initiated against the petitioner by issuing
of the charge sheet and after completing
the disciplinary enquiry, the enquiry
officer has submitted a report on the basis
of the same, the impugned order dated
25.4.2009 has been passed, but taking a
sympathetic view, he has been reinstated
in service without any back wages. As the
petitioner has not been fully exonerated
from the charges imposed on him, he is
not entitled for any back wages in view of
the provisions as provided under Sub Rule
(2) of Rule 54 of the U.P. Fundamental
Rules Vol. 2 Part-2 Financial Hand Book
reads as under:-

"Where the authority competent to
order of reinstatement is of opinion that
the Government servant who had been
dismissed,
removed
or
compulsorily
retired, has been fully exonerated the
Government
shall
subject
to
the
provisions of sub-rule (6) be paid the full
pay and allowances to which he would
have been entitled, had he not been
dismissed,
removed
or
compulsorily
retired or suspended prior to such
dismissal,
removal
or
compulsory
retirement, as the case may be:

Provided that where such authority is
of opinion that the termination of the
proceedings
instituted
against
the
Government servant had been delayed
due to reasons directly attributable to the
Government servant, it may, after giving
him
an
opportunity
to
make
his
representation, and after considering the
representation, if any, submitted by him,
direct, for reasons to be recorded in
writing, that the Government servant
shall, subject to the provisions of sub-rule
(7) be paid for the period of such delay,
only such amount (not being the whole)
of such pay and allowances as it may
determine.

12. After placing reliance of the
aforesaid Rule and the facts on which the
impugned order has been passed, learned
1000 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
State Counsel submits that making
payment of back wages on account of his
reinstatement and payment of other
service benefit like promotional pay scale
would amount to putting a premium on
his misconduct, and thus the intention of
Legislature would never be to award an
employee whose misconduct has been
proved,
although
partially
proved.
Accordingly even if the words "fully
exonerated"
is
not
categorically
mentioned in sub rule 4 of Rule 54 of the
Fundamental Rules but by adopting the
Rule of Harmonious Construction, the
intention of the Legislature could not be
misinterpreted so that a guilty employee
(partially guilty) would be entitled for
back wages for the period, for which, he
was out of service, on the eventuality of
his reinstatement as the Competent
Authority has taken a lenient sympathetic
view. It is further pertinent to mention
that the word fully exonerated as
appearing in sub rule 2 of Rule 54 cannot
be made redundant merely on the ground
that the same is not categorically
mentioned in sub rule-4.

13. As, it is a settled principle of law
that
any
order
involving
civil
consequences which are detrimental to a
persons' interest, adherence the principle
of natural justice is a must. However, in
terms of Rule 54 (4) a show cause notice
to the Government servant would be
required only if the Competent Authority
is of the opinion that the some amount is
payable to the government employee on
account of his reinstatement and thus
before ascertaining the quantum to be
paid, a show cause notice would be
required. However, as a general rule, if
the Competent Authority is of the opinion
that the government employee is not
entitled for any back wages on the
principle of no work and no pay, no such
show cause notice is required, because the
petitioner is not fully exonerated in
respect of the charges which have been
imposed against him. So keeping in view
the said rules, there is no illegality or
infirmity on the part of the opposite party
no.4 thereby not giving the back wages to
the petitioner by means of the impugned
order that even otherwise, as petitioner
was dismissed from service in the year
1986. Thereafter, he kept silent and after
considerable delay when he was acquitted
from criminal case in the year 1999
although on a different footing, for the
first time he made a representation in the
year 1999. Subsequently filed a writ
petition in the year 2000 for redressal of
his grievances. So, keeping in view the
said fact, petitioner is not entitled for any
relief as claimed by him in respect of the
payment of back wages in view of the
cases namely :-(a) Delhi Administration
vs. Hira Lal (1999) 6 Supreme Court
Cases 664 58, (b) A. P. SRTC & another
vs. S. Narsagoud (2003) 2 Supreme Court
Cases
212,
(c)
Chairman
Food
Corporation of India vs. Sudarsan Das
(2007) 14 Supreme Court Cases 766, (d)
State of Maharastra vs. Reshma Ramesh
Meher & another (2008) 8 Supreme Court
Cases 664 and (e) Bicco Lawries Limited,
reported in (2009) 10 SCC 32 para 42.
and writ petition is liable to be dismissed.

14. Shri Ramesh Kumar Srivastava,
learned counsel for the petitioner, in
rebuttal, submits that it is totally incorrect
and wrong on the part of the Shri Abhinav
Narain Trivedi, learned Addl. Chief
Standing Counsel who states that the
charges in which petitioner has been
exonerated by the criminal court are
different in nature are correct, so the
position is the same on the basis of which
2 All] Ram Autar Shukla Vs. State of U.P. and Ors.
1001
petitioner has been dismissed from
service
by
order
dated
30.6.1986.
Accordingly, it is submitted by him that
the impugned order dated 25.4.2009
(Annexure No.1) passed by opposite party
no.4/Sub Divisional Officer, Tehsil Sadar,
District-Hardoi is in contravention to the
provisions as provided under Sub-rule 4
of Rule 54 of the Fundamental Rules,
liable to be set aside.

15. I have heard learned counsel for
the parties and gone through the records.

16. It is well settled principle of
service jurisprudence that a person must
be paid if he has worked and should not
be paid if he has not. In other words, the
doctrine of "no work no pay" is based on
justice, equity and good conscience and in
absence of valid reasons to the contrary, it
should be applied. (See Sukhdev Pandey
vs. Union of India (2007) 7 SCC 455)

17. The principle has been laid down
keeping in view the public interest that a
Government
servant
who
does
not
discharge his duty is not allowed pay and
arrears at the cost of public exchequer. It
cannot be contended as an absolute
proposition of law that no direction of
payment of consequential benefits can be
granted by a Court. Denial of salary on
the ground of 'no work no pay' cannot be
treated as a penalty (See State of U.P. vs.
Madhav Prasad Sharma (2011) 1 JT 326)
and mechanical application of normal
Rule "no work no pay" may in some cases
be found to be wholly unjust. No absolute
proposition of law in this behalf can be
laid down. (See Somesh Tiwari v. Union
of India (2009) 2 SCC 592)

18. Further, on the order of
termination of service of an employee
being set aside, ordinarily the relief of
reinstatement
is
available
to
the
employee. However, the entitlement of an
employee to get reinstatement does not
necessarily result in payment of full or
partial back wages, which is independent
of reinstatement.

19. While dealing with the prayer
for back wages, factual scenario, equity
and good conscience and a number of
other factors; like the manner of selection;
the nature of appointment; the period for
which the employee had worked with the
employer, etc. have to be kept in mind.
All these factors are illustrative and no
precise formula can be laid down as to
under what circumstances full or partial
back wages should be awarded. It
depends upon the facts and circumstances
of each case. (See Kanpur Electricity
Supply Company Limited v. Shamim
Mirza (2009) 1 SCC 20).

20.

Moreover,
it
would
be
deleterious
to
the
maintenance
of
discipline if a person who was suspended
on valid considerations is given full back
wages as a matter of course, on his
acquittal. The disciplinary authority has
option
either
to
enquire
into
the
misconduct unless the selfsame conduct
was subject-matter of the charge and on
trial the acquitted was not based on
benefit of doubt but on a positive finding
that the accused did not commit the
offence at all. The authority may also, on
reinstatement, pass appropriate order
including treating suspension period as
not spent on duty, after following the
principles of natural justice.

21. Hon'ble the Supreme Court in
the case of Kishnakant Raghunath
Bibhavenkar v. State of Maharashtra
1002 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
(1997) 3 SCC 636 held that the employee
was not entitled to consequential benefits
on his reinstatement after acquittal. He
was also not entitled to be treated as on
duty from the date of suspension till the
date of acquittal, for the purpose of
computation of pensionary benefits.

22. The position, in nutshell, is that
as to whether an employee is entitled for
back wages or not after he has been
reinstated
in
service,
applying
the
principle of no work no pay can be
summarized that payment of back wages
having a discretionary element has to be
dealt with in the fact and circumstances of
each case and no straitjacket formula can
be evolved and when the question of
determining the entitlement of a person to
back wages is concerned, the employee
has to show that he was not gainfully
employed. The initial burden is on him
and if he places materials in that regard,
the employer can bring on record
materials to rebut the claim. (See
Hindustan Motors Limited v. Tapan
Kumar Bhattarharya (2002) 6 SCC 41
and Kendriya Vidyala Sangathan v.
S.C. Sharma (2005) 2 SCC 363).

23. Before adjudicating and deciding
the controversy involved in the present
case, I feel appropriate to go through the
judgments cited by learned counsel for the
parties.

24. This Court in the case of
Kailash Kumar Mishra vs. State Public
Service Tribunal (2012) 3 UPLBEC
1881 in paragraph no.9 has held as
under:-

"Taking into consideration the facts
and circumstances of the case, in our
considered view, the principle of "no
work and no pay" appears to have
wrongly been applied in the instant case.
Once the enquiry was found to be
vitiated; the charges not be proved;
opportunity of cross examination of the
witnesses not afforded to him; and the
punishing authority not giving any reason
for disagreeing with the findings of the
inquiry officer nor any reason having
been given by the punishing authority for
his own findings, the petitioner alone
cannot be made to suffer. Further, the
principle " No work no pay" is to be
applied as a punitive measure in those
cases where the employee concerned had
willingly not performed his duties or had
absented himself from work without
proper cause. Such is not the position in
the present case. Here, the petitioner
could not discharge his duties because of
the
enquiry
proceedings
and
the
punishment order which have ultimately
been found to be vitiated on the aforesaid
grounds. Since faults have been found on
the part of the department also, in our
view, the ends of justice would meet if 50
% of the salary and allowances is awarded
to the petitioner from the date of his
termination till his reinstatement."

25. In the case of B. M. Nigam vs.
Chairman, State Bank of India 2012 (1)
ADJ 183, this Court has held that the
petitioner was illegally deprived of the
working as officer of the bank and thus we
direct that the petitioner be reinstated with
50% of the back wages, and all other
consequential benefits. If the petitioner has
retired, 50% wages upto date of retirement
will be paid with further direction that he will
be paid full pension as if he retired while
serving will all consequential benefits.

26. In the case of Kishori Lal vs.
Chairman, Board of Director (2011) 2
2 All] Ram Autar Shukla Vs. State of U.P. and Ors.
1003
UPLBEC 1445, this Court has held as
under:-

"58.
Now
coming
to
another
important aspect about relief. It is not the
case of respondents that petitioner was
gainfully employed elsewhere during the
period he was out of job. On the contrary,
as a result of illegal order of dismissal,
petitioner and his entire family must have
suffered a social stigma as also financial
hardships. It is quite conceivable that this
ignominy is faced by the entire family of
petitioner. No amount of money can
compensate this social humiliation, illegal
torture
an
outclassed
attribute
of
neighbour and other difficulties.

59. Moreover the concept of gainful
employment would be attracted provided
employment is easily available. The Court
cannot shut its eyes of extraordinary
unemployment prevailing in the Country.
The people having high qualifications are
searching menial employment having limited
employment avenues. In such circumstances
to suggest that a dismissed employees could
have got a gainful employment is nothing but
a day dreaming.

60. This aspect can be looked into
from another different angle. In these
days of extraordinary unemployment it is
inconceivable to think that dismissed or
removed employee may get easily an
alternative employment. Merely because
he has been able to survive all through, it
cannot be conceived that he was in
gainful employment during all this
periods. We do not know whether he
survived at the charity or support
extended
by
his
relatives,
friends,
neighbour or by selling his household
goods or spending his savings or losing
ornaments of his wife or that he survive
by incurring debt in the hope of getting
success one day in the case challenging
order of punishment and then to discharge
debt liability.

63.
It
is
in
these
facts and
circumstances and considering the various
aspects of the matter, this Court is of
considered
view
that
dismissal
of
petitioner from service having been found
wholly illegal, and it is also having been
seen that he was denied work on the post
in question by employer in a wholly
illegal manner, petitioner should be given
relief of reinstatement with benefit of
continuity
of
service
with
all
consequential benefits including arrears of
salary. This would be in consonance with
the principle that an employee has no
right to work but only right to claim
salary. In absence of anything to show
that employee himself was unwilling to
work, principle of "No Work No Pay'
ought not to be applied in such a case."

27. Lastly in the case of Govind Lal
Srivastava vs. State of U.P. (2009) 2
UPLBEC 1864, this Court has held as
under:-

"Similarly, with reference to the
judgment in the case of Sunder v. Union
of India and others, 2005 (4) AWC 3859A and in the case of R. K. Singh v.
Director/Appointing
Authority
and
another (2001) 2 UPLBEC 1282 : 2001
(3) AWC 1964, the petitioner has
contended that he is entitled to full back
salary for the period he has been kept out
of employment because of illegal order of
the respondent authorities."

28. Hon'ble the Apex Court in the
case
of
Maharashtra
vs.
Reshma
Ramesh Meher & another (2008) 8
1004 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
SCC 664 in paragraph no.24 held as
under:-

"It is true that once the order of
termination of service of an employee is
set
aside,
ordinarily
the
relief
of
reinstatement
is
available
to
him.
However, the entitlement of an employee
to get reinstated does not necessarily
result in payment of full or partial
backwages, which is independent of
reinstatement. While dealing with the
prayer of back-wages, factual scenario,
equity and good conscious, a number of
other factors, like the manner of selection;
nature of appointment; the period for
which the employee has worked with the
employer etc.; have to be kept in view.
All these factors and circumstances are
illustrative and no precise or abstract
formula can be laid down as to under
what circumstances full or partial back
wages should be awarded. It depends
upon the facts and circumstances of the
each case."

29. Hon'ble the Surpreme Court in
the case of Chairman Food Corporation
of India vs. Sudarsan Das (2007) 14
SCC 766 held that the relief for giving a
back wages be granted to an employee
after he has been re-instated in service
and have claimed back wages after 13
years from the date of reinstatement.

30. Hon'ble the Supreme Court in
the case of J. K. Synthetics Ltd. vs. K.
P. Agrawal & Another (2007) 2 SCC
433 in paragraph nos.15 to 18 held as
under:-

" 15. But the manner in which 'backwages' is viewed, has undergone a
significant change in the last two decades.
They are no longer considered to be an
automatic or natural consequence of
reinstatement. We may refer to the latest
of a series of decisions on this question.
In U.P. State Brassware Corpn. Ltd. vs
Udai Narain Pandey [2006 (1) SCC 479],
this Court following Allahabad Jal
Sansthan vs. Daya Shankar Rai [2005 (5)
SCC 124], and Kendriya Vidyalaya
Sangathan vs. S. C. Sharma [2005 (2)
SCC 363] held as follows :

"A person is not entitled to get
something only because it would be
lawful to do so. If that principle is
applied, the functions of an Industrial
Court
shall
lose
much
of
their
significance."

Although direction to pay full back
wages on a declaration that the order of
termination was invalid used to be the
usual result, but now, with the passage of
time, a pragmatic view of the matter is
being taken by the courts realizing that an
industry may not be compelled to pay to
the workman for the period during which
he apparently contributed little or nothing
at all to it and/or for a period that was
spent unproductively as a result whereof
the employer would be compelled to go
back to a situation which prevailed many
years ago, namely, when the workman
was retrenched. The changes (were)
brought about by the subsequent decisions
of the Supreme Court, probably having
regard to the changes in the policy
decisions of the Government in the wake
of
prevailing
market
economy,
globalization,
privatization
and
outsourcing, is evident.

No precise formula can be laid down
as to under what circumstances payment
of entire back wages should be allowed.
Indisputably, it depends upon the facts
2 All] Ram Autar Shukla Vs. State of U.P. and Ors.
1005
and circumstances of each case. It would,
however, not be correct to contend that it
is automatic. It should not be granted
mechanically only because on technical
grounds or otherwise an order of
termination
is
found
to
be
in
contravention of the provisions of section
6- N of the U.P. Industrial Disputes Act.
While granting relief, application of mind
on the part of the Industrial Court is
imperative. Payment of full back wages
cannot
therefore
be
the
natural
consequence.
In
General
Manager,
Haryana Roadways vs. Rudhan Singh
[2005 (5) SCC 591], this Court observed :

"There is no rule of thumb that in
every case where the Industrial Tribuanl
gives a finding that the termination of
service was in violation of Section 25-F of
the Act, entire back wages should be
awarded. A host of factors like the manner
and method of selection and appointment i.e.
whether after proper advertisement of the
vacancy or inviting applications from the
employment
exchange,
nature
of
appointment, namely, whether ad hoc, short
term, daily wage, temporary or permanent in
character, any special qualification required
for the job and the like should be weighed
and balanced in taking a decision regarding
award of back wages. One of the important
factors, which has to be taken into
consideration, is the length of service, which
the workman had rendered with the
employer. If the workman has rendered a
considerable period of service and his
services are wrongfully terminated, he may
be awarded full or partial back wages
keeping in view the fact that at his age and
the qualification possessed by him he may
not be in a position to get another
employment. However, where the total
length of service rendered by a workman is
very small, the award of back wages for the
complete period i.e. from the date of
termination till the date of the award, which
our experience shows is often quite large,
would be wholly inappropriate. Another
important factor, which requires to be taken
into
consideration
is
the
nature
of
employment. A regular service of permanent
character cannot be compared to short or
intermittent daily-wage employment though
it may be for 240 days in a calendar year."

16. There has also been a noticeable
shift in placing the burden of proof in
regard to back wages. In Kendriya
Vidyalaya Sangathan (supra), this Court
held :

"When the question of determining
the entitlement of a person to back wages
is concerned, the employee has to show
that he was not gainfully employed. The
initial burden is on him. After and if he
places materials in that regard, the
employer can bring on record materials to
rebut the claim. In the instant case, the
respondent had neither pleaded nor placed
any material in that regard."

In U.P. State Brassware Corpn.
Ltd. (supra), this Court observed :

18. Coming back to back-wages,
even if the court finds it necessary to
award back-wages, the question will be
whether back-wages should be awarded
fully or only partially (and if so the
percentage). That depends upon the facts
and circumstances of each case. Any
income received by the employee during
the relevant period on account of
alternative employment or business is a
relevant factor to be taken note of while
awarding backwages, in addition to the
several factors mentioned in Rudhan
Singh (supra) and Udai Narain Pandey
1006 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
(supra). Therefore, it is necessary for the
employee to plead that he was not
gainfully employed from the date of his
termination. While an employee cannot be
asked to prove the negative, he has to at
least assert on oath that he was neither
employed nor engaged in any gainful
business or venture and that he did not
have any income. Then the burden will
shift to the employer. But there is,
however, no obligation on the terminated
employee to search for or secure
alternative employment. Be that as it may.

31. In the case of A. P. SRTC &
another vs. S. Narsagoud (2003) 2 SCC
212, Hon'ble the Supreme Court while
considering the matter in respect of the
grant of back wages held that if it is found
that
when
an
employee
remains
unauthorizedly absent from duty, he
cannot claim the relief and though he has
been reinstated in service.

32.

In
the
case
of
Delhi
Administration vs. Hira Lal (1999) 6
SCC 664 58, Hon'ble the Supreme Court
held that if a person approach for back
wages after the considerable delay in the
said matter from the date of reinstatement,
he cannot claim the same at a belated
stage.

33. After going through the various
judgments cited at bar in respect of
principal of "No Work No Pay", the
admitted position which emerges out is
that in none of the cases the effect of the
provisions of Sub Rule (2) of Rule 54 or
Sub Rule (4) of Rule 54 of the U.P.
Fundamental Rules has been taken into
consideration. Although, the said point
has not been taken in pleadings by the
parties in the instant matter, but as
argument has been advanced in that
regard, so I feel appropriate to adjudicate
and decide the said issue.

34. Sub-rule 2 of Rule 54 of the
Fundamental Rules provides that when the
competent authority passes any order of
reinstatement by setting aside the order of
dismissal, removal or compulsory retirement
by fully exonerating him from charges, the
employee shall be entitled to full pay and
allowances to which he would be entitled,
had he not been dismissed, removed or
compulsorily retired or suspended prior to
such dismissal, removal or compulsory
retirement as the case be, subject to the
provisions of Sub-Rule 6 of Rule 54
provision to the said Sub-rule 2 also stipulate
that if the proceedings instituted against the
government servant is delayed due to reasons
directly, attributable to the Government
servant, the authority may pass an order after
giving
reasonable
opportunity
to
the
Government servant to make representation,
determining the amount of such pay and
allowances by taking into account the period
of such delay.

35. Sub-rule 4 of Rule 54 of the
Fundamental Rules provides that when the
appellate or reviewing authority set aside the
order of dismissal, removal or compulsory
retirement of a Government servant solely on
the ground of non-compliance with the
requirements of Clause (1) or Clause (2) of
Article 311 of the Constitution of India and no
further inquiry is proposed to be held, the
Government servant shall be paid such
amount, not being the whole, of pay and
allowances to which he would have been
entitled, had he not been dismissed, removed
or compulsory retired or suspended prior to
such dismissal, removal or compulsory
retirement, as the case may be, as the
competent authority may determine after
giving notice to the government servant of the
2 All] Ram Autar Shukla Vs. State of U.P. and Ors.
1007
quantum proposed and after considering the
representation, if any, submitted by the
Government servant in that regard, subject to
the provision of Sub-rule 5 and Sub-rule 7 of
the said Rule.

36. In the instant case, the order of
dismissal has been set aside taking a
sympathetic
view
by
the
competent
authority, so the provisions as provided
under Sub Rule (2) of Rule 54 of the U.P.
Fundamental Rules are not applicable, but
the present case is governed by the
provisions as provided under Sub-rule 4 of
Rule 54 of the Fundamental Rules, the said
sub rules is subject to the provisions of Subrule 5 and 7 of Rule 54.

37. Accordingly, the competent
authority as per the said rule has to pass an
order as to how the period of absence from
duty to be treated for any specified purpose
and in case the Government servant so desire,
such authority may direct that the period of
absence of duty preceding his dismissal from
service shall be converted into leave of any
kind due and admissible to the employee
concerned because Sub-rule 5 of the Rule 54
also provides that in a case falling under Subrule 4, the period of absence from the duty
preceding that dismissal from service shall not
be treated as a period spent on duty, unless the
competent authority passes a specific order as
stated above.

38. In the case of Devendra Pratap
Narain Rai Sharma vs. State of U.P.
and others 1962 Supp (1) SCR 315,
while considering the provisions as
provided
under
Rule
54
of
the
Fundamental Rules as exits at the relevant
point of time held as under:-

"The High Court in dealing with the
appellant's claim to salary during the period
of his suspension pending the earlier enquiry
observed that there was no justification for
"not granting the appellant his full pay" for
the period after the date of the suit. But the
counsel for the State of Uttar Pradesh
asserted that it is open to the State,
notwithstanding the direction, to award as
remuneration to the appellant for the period
for which he was under suspension any
amount which on a reconsideration of the
matter in the light of the relevant rules and
after hearing the appellant the State
Government considers just and proper. This
power, counsel contends, arises by virtue of
Rule 54 of the Fundamental Rules framed by
the State Counsel says that it was because of
this rule that the High Court directed the
State Government to reconsider the matter in
the light of the relevant rules."

39. And in the case of M.
Gopalakrishna Naidu vs. State of Madhya
Pradesh (1968) 1 SCR 355, Hon'nle
Supreme Court in para 5 and 10 have held
as under:-

"The first question which requires
consideration is whether there was a duty on
the competent authority to afford an
opportunity to the appellant to show cause
before that authority formed the opinion as to
whether he was fully exonerated and whether
his suspension was wholly justified. Under FR
54 where a government servant is reinstated,
the authority has to consider and make a
specific order (i) regarding pay and
allowances payable to him for the period of
his absence from duty and (ii) whether such
period of absence should be treated as one
spent on duty. The consideration of these
questions depends on whether on the facts and
circumstances of the case the government
servant had been fully exonerated and in case
of pension whether it was wholly unjustified.
If the authority forms such an opinion the
1008 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
government servant is entitled to full pay and
allowances which he would have been entitled
to had the order of dismissal, removal or
suspension, as the case may be, not been
passed. Where the authority cannot form such
an opinion the government servant may be
given such proportion of pay and allowances
as the authority may prescribe. In the former
case the period of absence from duty has to be
treated as period spent on duty.