# Ram Kishan v. State of U.P. & Anr

- **Citation:** (2014) 3 ILRA 1481
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-11-20
- **Case number:** Civil Misc. Writ Petition No. 8309 of 2001
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kishan-v-state-of-u-p-anr-43049
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-claim of
Back
wages-petitioner
running
under
suspension w.e.f. 9.5.82 to 27.04.96-on
pendency of criminal trail-after acquittal
allowed to join-no disciplinary proceeding
1482
 INDIAN LAW REPORTS ALLAHABAD SERIES
initiated-entitled
for
back
wages-in
absence of pleading regarding no gainful
working
-anywhere
else-in
view
of
guidelines of Apex Court in Depali Gundu
Sarwase-40% back wages would
be
proper-payable within 4 month.
Held: Para-7
Indisputably,
the
petitioner
was
suspended on the ground that criminal
proceeding is pending against him. The
Department
has
not
initiated
any
disciplinary
proceedings
against
the
petitioner.
The
petitioner
has
been
acquitted and has also been reinstated
by the respondents but he has been
denied salary from the year 1982 to
1996 only on the ground of no work no
pay. It is a trite law that no work no pay
shall be applicable in such circumstances
where there is fault of an employee. The
petitioner was a Class IV employee, he
was kept out of job for twelve years only
on the ground of pendency of criminal
proceeding against the petitioner. It is
also trite law that on the same charges
the Departmental proceedings as well as
criminal
proceedings
can
go
on
simultaneously and in case the employee
is acquitted in a criminal case the
employer is not bound to accept that
decision and make it independent view
in the disciplinary proceeding holding
him guilty as the law of evidence is not
applicable
in
the
disciplinary
proceedings. But in the present case the
department preferred not to initiate any
disciplinary proceedings. Therefore, after
acquittal of the petitioner he is entitled
for full pay for the period when he was
kept out of the employment.
Case Law discussed:
(1979) 2 SCC 80; (2006) 1 SCC 479; (2006) 9
SCC 434; (2009) 5 SCC 705; (2010) 2 SCC 70;
JT 2013 (12) SC 322.

## Text

3 All]. Ram Kishan Vs. State of U.P. & Anr.
1481
appeared in the selection it was not open
for him to challenge the same, is also not
acceptable, as, this principle does not
apply in the facts of this case. It is the
respondents, who have a committed a
folly by applying a wrong rule and a
wrong criteria for selection; the issue, is
too fundamental to be brushed aside on
this submission of Sri Sharma.
29. Sri Sameer Sharma invited the
attention of the Court to the 'U.P. State
District Courts Service Rules, 2013,
which have come into force w.e.f.
04.07.2013, which now regulate the terms
and conditions of service of the posts in
question. As per Rule 4 read with
Scheduled 'B' thereof the criteria of
promotion to the post in question is
'seniority cum merit'. Vide Rule 29
thereof the Rules, 1947 have been
repealed. In my view this does not make
any difference to the case, as, the
selection in question herein was held prior
to 04.07.2013. The process of selection
having been initiated and completed prior
to 04.07.2013, in my view, the vacancy
will have to be filled in according to the
Rues, 1994.
30. The other submissions of the
learned counsel for the parties assuming
the application of Rule 20(3) of Rules,
1947, need no consideration.
31. In view of the above discussion,
the order of promotion of the Respondent
No.5 dated 05.01.2012, passed by the
District Judge, Allahabad cannot be
sustained and is quashed. The selection
proceedings on the basis of which the said
promotion order was issued are declared a
nullity in the eyes of law. However, as the
post in question should not remain vacant,
it is provided that the Respondent No.5
shall continue to function as Sadar
Munsarim on the same terms and
conditions on which he has been
continuing. No recovery of financial
benefits already given shall be made from
him. His continuance shall be subject to
the fresh selection and promotion to be
made by the respondents, expeditiously, if
possible, before 15.01.2015. So far as
Relief No.2 is concerned, the same cannot
be considered at this stage as it will
depend upon the fresh selection to be
held, as aforesaid. Learned counsel for the
petitioner informs that the other post of
Sadar Munsarim is lying vacant since
2009, accordingly it is provided that, if
there is no legal impediment then the
respondents may consider filling up the
said post also accordingly.
32. Subject to above, the writ
petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.11.2014
BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Civil Misc. Writ Petition No. 8309 of 2001
Ram Kishan
...Petitioner
Versus
State of U.P. & Anr.
...Respondents
Counsel for the Petitioner:
Sri Shamsher Singh
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-claim of
Back
wages-petitioner
running
under
suspension w.e.f. 9.5.82 to 27.04.96-on
pendency of criminal trail-after acquittal
allowed to join-no disciplinary proceeding
1482
 INDIAN LAW REPORTS ALLAHABAD SERIES
initiated-entitled
for
back
wages-in
absence of pleading regarding no gainful
working
-anywhere
else-in
view
of
guidelines of Apex Court in Depali Gundu
Sarwase-40% back wages would
be
proper-payable within 4 month.
Held: Para-7
Indisputably,
the
petitioner
was
suspended on the ground that criminal
proceeding is pending against him. The
Department
has
not
initiated
any
disciplinary
proceedings
against
the
petitioner.
The
petitioner
has
been
acquitted and has also been reinstated
by the respondents but he has been
denied salary from the year 1982 to
1996 only on the ground of no work no
pay. It is a trite law that no work no pay
shall be applicable in such circumstances
where there is fault of an employee. The
petitioner was a Class IV employee, he
was kept out of job for twelve years only
on the ground of pendency of criminal
proceeding against the petitioner. It is
also trite law that on the same charges
the Departmental proceedings as well as
criminal
proceedings
can
go
on
simultaneously and in case the employee
is acquitted in a criminal case the
employer is not bound to accept that
decision and make it independent view
in the disciplinary proceeding holding
him guilty as the law of evidence is not
applicable
in
the
disciplinary
proceedings. But in the present case the
department preferred not to initiate any
disciplinary proceedings. Therefore, after
acquittal of the petitioner he is entitled
for full pay for the period when he was
kept out of the employment.
Case Law discussed:
(1979) 2 SCC 80; (2006) 1 SCC 479; (2006) 9
SCC 434; (2009) 5 SCC 705; (2010) 2 SCC 70;
JT 2013 (12) SC 322.
(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)
1. The petitioner has preferred this
writ petition for quashing of the impugned
order dated 12.7.2000 passed by the
respondent no.2 and for payment of his
salary for the period when he was under
suspension i.e. 19.5.1982 to 27.4.1996.
2. The brief facts of the case are that
the petitioner was a tube well operator in
Irrigation Department. He was placed
under suspension on 19.5.1982 on the
ground of criminal proceeding under
section 161 IPC and 5(2) of Prevention of
Corruption Act, 1988 was pending against
the petitioner. In the said criminal case he
was acquitted by the IV Additional
Sessions Judge on 19.5.1992. A copy of
the judgment of the Sessions court is on
the record. A perusal of the order indicate
that petitioner was falsely implicated in
the criminal case and prosecution failed to
establish
the
charges
against
the
petitioner.
3. After acquittal on 19.5.1992, the
petitioner made several representations
for his joining but no action was taken.
He preferred Writ petition No. 31430 of
1994 for a direction upon the respondents
to pay his arrears of salary and permit him
to join his duties. Pending consideration
of the said writ petition the second
respondent vide order dated 26.4.1996
permitted the petitioner to join his duty at
Tube well No.24 NG Sub. Division III,
and his suspension order was revoked.
After joining the petitioner made a fresh
representation for payment of his salary
during the period of his suspension.
4. In Writ Petition No. 31430 of
1994 an interim mandamus was issued on
15.10.1997 with a direction to either pay
the difference of salary to the petitioner or
file counter affidavit within three weeks.
The said order was not complied with as
neither the difference of salary was made
3 All]. Ram Kishan Vs. State of U.P. & Anr.
1483
nor counter affidavit was filed within the
stipulated time. The said writ petition was
finally disposed of on 2nd August, 1999
with a direction to the authorities to
decide the petitioner's representation in
accordance with law by a speaking order.
In compliance thereof the impugned order
has been passed wherein it is mentioned
that the petitioner is not entitled for the
back wages on the ground of no work no
pay.
5. A counter affidavit has been filed.
In the counter affidavit the same stand has
been reiterated.
6. I have perused the record and
heard learned Standing Counsel.
7. Indisputably, the petitioner was
suspended on the ground that criminal
proceeding is pending against him. The
Department
has
not
initiated
any
disciplinary
proceedings
against
the
petitioner.
The
petitioner
has
been
acquitted and has also been reinstated by
the respondents but he has been denied
salary from the year 1982 to 1996 only on
the ground of no work no pay. It is a trite
law that no work no pay shall be
applicable in such circumstances where
there is fault of an employee. The
petitioner was a Class IV employee, he
was kept out of job for twelve years only
on the ground of pendency of criminal
proceeding against the petitioner. It is also
trite law that on the same charges the
Departmental proceedings as well as
criminal
proceedings
can
go
on
simultaneously and in case the employee
is acquitted in a criminal case the
employer is not bound to accept that
decision and make it independent view in
the disciplinary proceeding holding him
guilty as the law of evidence is not
applicable in the disciplinary proceedings.
But in the present case the department
preferred not to initiate any disciplinary
proceedings. Therefore, after acquittal of
the petitioner he is entitled for full pay for
the period when he was kept out of the
employment.
8. As mentioned above from the
perusal of the judgment of the trial court it
is evident that there is finding that
petitioner was falsely implicated in the
case on account of personal enmity
between
the
complainant
and
the
petitioner.
9. The Supreme Court in the case of
Hindustan Tin Works (P) Ltd. v.
Employees, (1979) 2 SCC 80, held that
ordinarily, an employee whose service has
been illegally terminated would be
entitled to full back wages except to the
extent he was gainfully employed during
the period he was in employment. The
Court held that the back wages is a
normal Rule. This case was consistently
followed. However, with the passage of
time the Court took a pragmatic view that
employer may not be compelled to pay to
the workman during the period when he
did not worked. Reference may be made
to the judgment of U.P.State Brassware
Corpn. Ltd. v. Uday Narain Pandey,
(2006)1
SCC
479;
Haryana
State
Electronics Development Corpn. Ltd. v.
Mamni, (2006) 9 SCC 434; P.V.K.
Distillery Ltd. v. Mahendra Ram, (2009)
5 SCC705; Reetu Marbles v. Prabhakant
Shukla, (2010) 2 SCC 70; and U.P. SRTC
v. Mitthu Singh (2006)7 SCC 180.
10. In a recent case of Deepali
Gundu
Surwase
v.
Kranti
Junior
Adhyapak Mahavidyalaya, JT 2013 (12)
SC 322 the Supreme Court after analyzing
1484
 INDIAN LAW REPORTS ALLAHABAD SERIES
a large number of its earlier cases again held
that in case of removal/termination of service
reinstatement with continuity of service and
back wages is a normal rule. In the said case
the appellant was a teacher in a primary
school. The institution was receiving grantin-aid by the State Government. She was
suspended. The Education Officer did not
paid
her
subsistence
allowance
also.
Thereafter she was subjected to the
disciplinary proceedings and her services
were terminated. Her termination order was
quashed by the School Tribunal. The order of
the Tribunal was challenged in the High
Court in the Writ Petition. The learned
Single Judge set aside the direction given by
the School Tribunal for payment of back
wages. Aggrieved by the said order the
teacher preferred Special Leave Petition in
the Supreme Court. The relevant part of the
judgment read as under :-
"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. This is so because
it is settled law that the burden of proof of
the existence of a particular fact lies on
the persons who makes a positive
averments about its existence. It is always
easier to prove a positive fact than to
prove a negative fact. Therefore , once the
employee
shows
that
he
was
not
employed, the onus lies on the employer
to specifically plead and prove that the
employee was gainfully employed and
was getting the same or substantially
similar emoluments.
iv) The cases in which the Labour
Court/Industrial Tribunal exercises power
under Section 11-A of the Industrial
Disputes Act, 1947 and 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 concerned
3 All]. Smt. Satyabhama Dubey Vs. Regional Deputy Director of Education, Agra & Ors.
1485
Court or Tribunal 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 always be kept in view that
in the cases of wrongful/ illegal termination
of service, the wrongdoer is the employer
and sufferer is the employee/workman and
there is no justification to give 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 (supra).
vii)
The
observation
made
in
J.K.Synthetics
Ltd.
v.
K.P.Agrawal
(supra)
that
on
reinstatement
the
employee/workman
cannot
claim
continuity of service as of right is
contrary to the ratio of the judgments of
three Judge Benches referred to herein
above and cannot be treated as good law.
This part of the judgment is also against
the very concept of reinstatement of an
employee/workman."
11. In view of the above taking into
consideration the facts and circumstances
of this case I am of the view that the
petitioner is entitled for 40 percent of the
back wages. The petitioner shall be paid
the said amount within four months from
the date of communication of this order.
12. Let a certified copy of this order be
issued to learned Standing Counsel free of
cost for communication and compliance of
this order. Writ petition is allowed.
13. There shall be no order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.11.2014
BEFORE
THE HON'BLE RAJAN ROY, J.
Civil Misc. Writ Petition No. 41068 of 1996
Smt. Satyabhama Dubey
...Petitioner
Versus
Regional Deputy Director of Education,
Agra & Ors.
...Respondents
Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare, Sri
Mukesh Kumar