# Dharmendra Kumar Yadav v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 83
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-30
- **Case number:** Service Single No. 13284 of 2018
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-kumar-yadav-v-state-of-u-p-ors-47316
- **Pages:** 5

## Headnote

A. Service Law - Arrears of salary - If the
punishment order was declared non-est in
the eyes of law, then the benefit of salary
from the date of dismissal till the date of
reinstatement may not be denied. It is
normal rule that incumbent is entitled for all
consequential benefits as for he was never
terminated. (Para 5)

When an order of termination by way of
punishment i.e dismissal or removal is set
aside being in violation of principle of
natural
justice,
such
an
order
of
punishment renders in nullity and legal
consequence is that concerned employee
was never terminated by way of removal
or dismissal and has already continued in
service. That being so, question of direction of
reinstatement in fact is a misnomer. Since such
a person in law continued in service without any
interruption as if no order of termination was
ever
passed.
It
is
only
to
avoid
any
administrative
doubt
that
a
direction
of
reinstatement is normally given but the nature
of such an order is nothing but a declaration
that termination of service by way of dismissal
or removal is a nullity and the natural
consequence is that incumbent concerned is
deemed to continue in service as for he was
never terminated.

Writ petition allowed. (E-3)

Precedent followed:

## Text

8 All. Dharmendra Kumar Yadav Vs. State of U.P. & Ors.
83
interest at the rate of 8% per annum on the
dues.

19. Accordingly, the writ petition is
allowed.

20. No order as to cost.
----------
(2021)08ILR A83
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.07.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 13284 of 2018

Dharmendra Kumar Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajay Kishor Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Arrears of salary - If the
punishment order was declared non-est in
the eyes of law, then the benefit of salary
from the date of dismissal till the date of
reinstatement may not be denied. It is
normal rule that incumbent is entitled for all
consequential benefits as for he was never
terminated. (Para 5)

When an order of termination by way of
punishment i.e dismissal or removal is set
aside being in violation of principle of
natural
justice,
such
an
order
of
punishment renders in nullity and legal
consequence is that concerned employee
was never terminated by way of removal
or dismissal and has already continued in
service. That being so, question of direction of
reinstatement in fact is a misnomer. Since such
a person in law continued in service without any
interruption as if no order of termination was
ever
passed.
It
is
only
to
avoid
any
administrative
doubt
that
a
direction
of
reinstatement is normally given but the nature
of such an order is nothing but a declaration
that termination of service by way of dismissal
or removal is a nullity and the natural
consequence is that incumbent concerned is
deemed to continue in service as for he was
never terminated.

Writ petition allowed. (E-3)

Precedent followed:

1. U.P.S.R.T.C. & ors. Vs Presiding Officer
Labour Court, Faizabad & anr., 2019 (5) AWC
4287 (LB) (Para 4)

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Ajay Kishor Pandey,
learned counsel for the petitioner and
learned Standing Counsel for the Staterespondents.

2. By means of this petition, the
petitioner has prayed following reliefs:-

"i) issue a writ, order or direction
in the nature of certiorari quashing the
impugned order dated 25/11/2017 passed
by Opposite party no.3.

ii) issue a writ, order or direction
in the nature of mandamus commanding
the opposite parties to pay all back wages,
increment with 12% interest and the
seniority maintained at the time of joining."

3. Learned counsel for the petitioner
has contended that since the impugned
order of dismissal was illegal and arbitrary,
therefore, it was quashed by this Court vide
judgment and order dated 17.11.2016
passed in Service Single No.9088 of 2016;
Dharmendra Kumar Yadav Vs. State of
U.P. and others. Sri Pandey has further
84 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted that the judgment and order
dated 17.11.2016 has not been assailed by
the State Government by filing appeal
before this Court or before the Hon'ble
Supreme Court, therefore, the judgment
and order dated 17.11.2016 has attained
finality. Learned counsel for the petitioner
has further submitted that even the reason
indicated in the impugned order, which was
quashed by this Court, has also lost its
efficacy inasmuch as in the criminal case
indicated in the impugned order, the
petitioner has already been acquitted.

4. Learned Standing Counsel has,
however, tried to defend the impugned
order dated 25.11.2017 but on being
confronted on the point that when the
dismissal order has already been quashed
by this Court treating the same as illegal
and arbitrary, as to how the petitioner may
be denied the benefit of arrears of salary
w.e.f. the date of dismissal to his
reinstatement, learned Standing Counsel
could not explain the said anomaly of the
impugned order dated 25.11.2017.

5. Having heard learned counsel for
the parties and perused the material
available on record, I am of the considered
opinion that if the punishment order of
dismissal has already been quashed by this
Court and the order of this Court has
attained finality, then it shall be presumed
that the punishment order has lost its
efficacy and it shall be treated as if it was
not issued against the petitioner. Further, if
the punishment order was declared non-est
in the eyes of law, then the benefit of salary
from the date of dismissal till the date of
reinstatement may not be denied. This
Court in re; U.P.S.R.T.C. and others Vs.
Presiding
Officer,
Labour
Court,
Faizabad and another, 2019 (5) AWC
4287 (LB), has decided more or less the
identical controversy holding that the
employee whose punishment order has
been set aside shall be entitled for all
benefits. Paragraphs 20 to 24 of the
aforesaid judgment are being reproduced
herein below:-

"20.
When
an
order
of
termination by way of punishment i.e
dismissal or removal is set aside being in
violation of principle of natural justice,
such an order of punishment renders in
nullity and legal consequence is that
concerned employee was never terminated
by way of removal or dismissal and has
already continued in service. That being so,
question of direction of reinstatement in
fact is a misnomer. Since such a person in
law continued in service without any
interruption as if no order of termination
was ever passed. It is only to avoid any
administrative doubt that a direction of
reinstatement is normally given but the
nature of such an order is nothing but a
declaration that termination of service by
way of dismissal or removal is a nullity and
the natural consequence is that incumbent
concerned is deemed to continue in service
as for he was never terminated. That being
so, it is normal rule that incumbent is
entitle for all consequential benefits as for
he was never terminated. Consequently
when an order of termination is set aside
on the ground that it was not legally passed
following the procedure laid down in law,
the concerned employee is not supposed to
be made to suffer for something for which
he was not responsible inasmuch an illegal
order obviously could have resulted due to
negligence or illegality committed by
concerned authorities i.e Enquiry Officer
or Disciplinary Authority and above and
for their fault employee concerned is not to
be made to suffer otherwise it will amount
to victimize a person for something for
8 All. Dharmendra Kumar Yadav Vs. State of U.P. & Ors.
85
which he was not at fault even if order of
termination is found to be illegal and void
ab initio.

21. In Pawan Kumar Agrawala
Vs General Manager-II and Appointing
Authority, State Bank of India and others,
2015 (13) SCALE 45, Court having
considered various earlier authorities on
the subject said in para 38:-

"38. The propositions which can
be culled out from the aforementioned
judgments are:

i)
In
cases
of
wrongful
termination of service, reinstatement with
continuity of service and back wages is the
normal rule.

ii) The aforesaid rule is subject to
the rider that while deciding the issue of
back wages, the adjudicating authority or
the Court may take into consideration the
length of service of the employee/workman,
the nature of misconduct, if any, found
proved against the employee/workman, the
financial condition of the employer and
similar other factors.

iii) Ordinarily, an employee or
workman whose services are terminated
and who is desirous of getting back wages
is required to either plead or at least make
a
statement
before
the
adjudicating
authority or the Court of first instance that
he/she was not gainfully employed or was
employed on lesser wages. If the employer
wants to avoid payment of full back wages,
then it has to plead and also lead cogent
evidence
to
prove
that
the
employee/workman was gainfully employed
and was getting wages equal to the wages
he/she
was
drawing
prior
to
the
termination of service. ...

iv) The cases in which the Labour
Court/Industrial Tribunal ... finds that even
though the enquiry held against the
employee/workman is consistent with the
rules of natural justice and/or certified
standing orders, if any, but holds that the
punishment was disproportionate to the
misconduct found proved, then it will have
the discretion not to award full back wages.
However, if the Labour Court/Industrial
Tribunal finds that the employee or
workman is not at all guilty of any
misconduct or that the employer had
foisted a false charge, then there will be
ample justification for award of full back
wages.

v) The cases in which the
competent Court or Tribunal finds that the
employer has acted in gross violation of the
statutory provisions and/or the principles
of natural justice or is guilty of victimizing
the employee or workman, then the Court
or Tribunal concerned will be fully justified
in directing payment of full back wages. In
such cases, the superior Courts should not
exercise power Under Article 226 or 136 of
the Constitution and interfere with the
award passed by the Labour Court, etc.,
merely because there is a possibility of
forming
a different
opinion on
the
entitlement of the employee/workman to get
full
back
wages
or
the
employer's
obligation to pay the same. The Courts
must keep in view that in the cases of
wrongful/illegal termination of service, the
wrongdoer is the employer and the sufferer
is the employee/workman and there is no
justification to give a premium to the
employer of his wrongdoings by relieving
him of the burden to pay to the
employee/workman his dues in the form of
full back wages.

vi) In a number of cases, the
superior Courts have interfered with the
award
of
the
primary
adjudicatory
authority on the premise that finalization of
litigation has taken long time ignoring that
in majority of cases the parties are not
responsible for such delays. Lack of
infrastructure
and
manpower
is
the
86 INDIAN LAW REPORTS ALLAHABAD SERIES
principal cause for delay in the disposal of
cases. For this the litigants cannot be
blamed or penalised. It would amount to
grave injustice to an employee or workman
if he is denied back wages simply because
there is long lapse of time between the
termination of his service and finality given
to the order of reinstatement. The Courts
should bear in mind that in most of these
cases, the employer is in an advantageous
position vis--vis the employee or workman.
He can avail the services of best legal
brain for prolonging the agony of the
sufferer, i.e., the employee or workman,
who can ill afford the luxury of spending
money on a lawyer with certain amount of
fame. Therefore, in such cases it would be
prudent to adopt the course suggested in
Hindustan Tin Works Private Limited v.
Employees of Hindustan Tin Works Private
Limited (1979) 2 SCC 80.

vii) The observation made in J.K.
Synthetics Ltd. v. K.P. Agrawal (2007) 2
SCC 433 that on reinstatement the
employee/workman cannot claim continuity
of service as matter of right is contrary to
the ratio of the judgments of three Judge
Benches referred to hereinabove and
cannot be treated as good law. This part of
the judgment is also against the very
concept
of
reinstatement
of
an
employee/workman." (emphasis added)

22. Thereafter in the penultimate
para 20 in Pawan Kumar Agrawala
(supra), Court held that findings of Enquiry
Officer on the charges are vitiated on
account of non compliance of the statutory
Rules and the principles of natural justice.
In the absence of evidence, order of
reinstatement without full back wages is
unjustified in law. Court after setting aside
judgment
of
High
Court,
awarded
reinstatement with full back wages for the
period from date of removal till the date
employee attained age of superannuation
on the basis of periodical revisions of
salary but after deducting amount of
pension already paid from back wages.

23. In K.S. Ravindran Vs Branch
Manager, New India Assurance Company
Ltd., 2015 (7) SCC 222, Court referred to
legal principles laid down in its earlier
decision
in
Mohan
Lal
Vs
Bharat
Electronics Ltd., 1981 (3) SCC 225 and
quoted the following observation:

"But there is a catena of
decisions which rule that where the
termination is illegal especially where
there
is
an
ineffective
order
of
retrenchment, there is neither termination
nor cessation of service and a declaration
follows that the workman concerned
continues to be in service with all
consequential benefits."

(emphasis added)

24. Earlier, in Deepali Gundu
Surwase
v.
Kranti
Junior
Adhyapak
Mahavidyalaya, 2013 (10) SCC 324, Court
said;

"The very idea of restoring an
employee to the position which he held
before dismissal or removal or termination
of service implies that the employee will be
put in the same position in which he would
have been but for the illegal action taken
by the employer. The injury suffered by a
person, who is dismissed or removed or is
otherwise terminated from service cannot
easily be measured in terms of money. With
the passing of an order which has the effect
of
severing
the
employer
employee
relationship, the latter's source of income
gets dried up. Not only the concerned
employee, but his entire family suffers
grave adversities. They are deprived of the
source of sustenance. The children are
deprived of nutritious food and all
opportunities
of
education
and
advancement in life. At times, the family
has to borrow from the relatives and other
8 All. Inspector(Civil Police) Rahul Shukla Vs. State of U.P. & Ors.
87
acquaintance to avoid starvation. These
sufferings continue till the competent
adjudicatory forum decides on the legality
of the action taken by the employer. The
reinstatement of such an employee, which
is preceded by a finding of the competent
judicial/quasi judicial body or Court that
the action taken by the employer is ultra
vires the relevant statutory provisions or
the principles of natural justice, entitles the
employee to claim full back wages."

 (emphasis added)

6. Considering the entirety of the
issue and the decision of this Court in re;
U.P.S.R.T.C. (supra), I find that the
impugned order dated 25.11.2017 passed
by opposite party no.3 is not sustainable in
law, therefore, the same is liable to be set
aside being arbitrary and violative of
Article 14 of the Constitution of India.

7. Accordingly, the writ petition is
allowed. A writ in the nature of certiorari is
issued quashing the impugned order dated
25.11.2017 passed by opposite party no.3.
A writ in the nature of mandamus is issued
commanding the opposite parties to make
payment of full back wages to the
petitioner with all consequential benefits
including seniority etc., with promptness,
preferably within a period of two months
from the date of receipt of certified copy of
this order, failing which the petitioner shall
be entitled for the interest at the rate of 8%
from the date the dues accrued till the date
of its actual payment.

8. No order as to costs.
----------
(2021)08ILR A87
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.08.2021

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 15111 of 2021

Inspector(Civil Police) Rahul Shukla
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rakesh Kumar Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - U.P. Police Officers of
the Subordinate Ranks (Punishment
and
Appeal)
Rules,
1991
-
U.P.
Government
Servants
(Disposal
of
Representation Against Adverse Annual
Confidential
Reports
and
Allied
Matters) Rules, 1995 -The petitioner is
discharging his duties as Inspector in the
Police Department, his Appellate Authority
would be the Deputy Inspector General of
Police and his Revisional Authority would be
the Inspector General of Police but against
the impugned office memo dated 01.07.2021
he may not approach any of the authority
i.e., the Appellate Authority or the Revisional
Authority. Besides, the petitioner would have
not approached any authority under the
Rules, 1995 for the reason that the order
impugned has been passed by the Highest
Authority of the Home Department of the
State of U.P. Therefore, the impugned office
memo
dated
01.07.2021
is
not
only
unwarranted and uncalled for being passed
without having any prescription under the
relevant Rules, 1991 but has been passed by
such authority against which no appeal or
revision or representation can be filed before
the Competent Authority. (Para 7)

The right of appeal or revision or statutory
representation of an employee may not be
curtailed/ washed off and if such inaction has
been done by any of the authority, the said
punishment order would be nullity in the eyes of
law. (Para 8)

Writ Petition Allowed. (E-8)