# Kuldeep Kumar Tripathi v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 757
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-24
- **Case number:** Service Single No. 13222 of 2018
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kuldeep-kumar-tripathi-v-state-of-u-p-ors-47305
- **Pages:** 5

## Headnote

A. Service Law - Payment of back wages
and other benefits - 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. 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/removal is a nullity and the natural
consequence is that incumbent concerned is
deemed to continue in service as for he was
never terminated. (Para 4)

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
reinstatement of such an employee,
entitles him to claim full back wages.
(Para 4)
758 INDIAN LAW REPORTS ALLAHABAD SERIES
Impugned order was set aside being arbitrary
and violative of Article 14 of Constitution and
Hon'ble Court ordered for payment of full back
wages with all consequential benefits including
seniority etc. (Para 5, 6)

Writ petition allowed. (E-3)

Precedent followed:

## Text

8 All. Kuldeep Kumar Tripathi Vs. State of U.P. & Ors.
757
Banda (Supra), it is evident that no
limitation has been prescribed for filing a
petition
under
Article
226
of
the
Constitution but one of the several rules of
self imposed restraint evolved by the
superior courts is that the High Court will
not entertain petitions filed after long lapse
of time because that may adversely affect
the settled/crystallized rights of the parties.
If the writ petition is filed beyond the
period of limitation prescribed for filing a
civil suit for similar cause, the High Court
will treat the delay unreasonable and
decline to entertain the grievance of the
petitioner on merits.

14. In the case in hand, a tentative
seniority list was issued and objections
were invited to the same from the
Constables appointed in pursuance to the
selection made. In pursuance thereof, the
final
seniority
list
was
issued
on
11.12.2017
and
rights
have
settled
between the parties but the petitioners did
not challenge the same within time and
now, after lapse of almost three years, the
same has been challenged by way of
present writ petition that too beyond
prescribed limit to file civil suit.

15.

In
view
of
above,
the
submissions advanced by learned counsel
for respondent No.692 in the light of
judgment
in
the
case
of
Banda
Development Authority, Banda (Supra)
appears to have substance in the matter
and the ratio of the judgment in the case
of
Banda
Development
Authority,
Banda (Supra) is fully applicable to the
facts and circumstances of the case.

16. In view of reasons assigned
above, the writ petition is dismissed on the
ground of laches.
----------
(2021)08ILR A757
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.08.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 13222 of 2018

Kuldeep Kumar Tripathi ...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 - Payment of back wages
and other benefits - 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. 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/removal is a nullity and the natural
consequence is that incumbent concerned is
deemed to continue in service as for he was
never terminated. (Para 4)

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
reinstatement of such an employee,
entitles him to claim full back wages.
(Para 4)
758 INDIAN LAW REPORTS ALLAHABAD SERIES
Impugned order was set aside being arbitrary
and violative of Article 14 of Constitution and
Hon'ble Court ordered for payment of full back
wages with all consequential benefits including
seniority etc. (Para 5, 6)

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)

Present
petition
assails
order
dated
25.11.2017.

(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.

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."

2. 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.9114 of 2016;
Kuldeep Kumar Tripathi Vs. State of U.P.
and
others.
Sri
Pandey
has
further
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.

3. 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.

4. 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
8 All. Kuldeep Kumar Tripathi Vs. State of U.P. & Ors.
759
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
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
760 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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-a-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.
8 All. Dr. Ratna Shukla Vs. State of U.P. & Ors.
761

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 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)

5. 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.

6. 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.

7. No order as to costs.
----------
(2021)08ILR A761
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.07.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 14891 of 2020

Dr. Ratna Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents