WRIT PETITION 3764 of 2023 on 31 December 2020

1. These two writ petitions filed by the petitioner and the subject matter andissue are almost similar in both writ petitions, which arise out of theemployment of deceased employee Mr. Praveen Sharma; therefore, theyare being tagged, heard and decided together. issue are almost similar in both writ petitions, which arise out of theemployment of deceased employee Mr. Praveen Sharma; therefore, theyare being tagged, heard and decided together.

2. The petitioner has filed the present W.P.(S) No. 3764/2023 claiming thefollowing reliefs:-following reliefs:- “(i)To call for entire records pertaining to the case.

(ii) To declare that the departmental proceedings initiated videcharge sheet dated 31.12.2020 lapsed on the death ofhusband of Petitioner having been remained unconcluded anddirect respondents to grant consequential benefits.charge sheet dated 31.12.2020 lapsed on the death ofhusband of Petitioner having been remained unconcluded anddirect respondents to grant consequential benefits.

(iii) To issue writ of mandamus commanding the respondents toforthwith pay the back wages to the petitioner that becamepayable on reinstatement of husband of petitioner on11.11.2020 for the period 25.06.2010 to the date ofreinstatement alongwith interest @ 10 % p.a. compoundedyearly.forthwith pay the back wages to the petitioner that becamepayable on reinstatement of husband of petitioner on11.11.2020 for the period 25.06.2010 to the date ofreinstatement alongwith interest @ 10 % p.a. compoundedyearly.

(iv) To direct respondents to calculate and pay the salary andbenefits of the said period from 25.06.2010 to 11.11.2020 forthe higher post/posts to which he would have been promotedon completion of requisite years of service on the feeder postas one of the consequential benefit.benefits of the said period from 25.06.2010 to 11.11.2020 forthe higher post/posts to which he would have been promotedon completion of requisite years of service on the feeder postas one of the consequential benefit.

(v) To direct respondents to pay the balance of retiral dues ofhusband of petitioner to petitioner including gratuity alongwithinterest @ 10 % p.a. compounded yearly.husband of petitioner to petitioner including gratuity alongwithinterest @ 10 % p.a. compounded yearly.

(vi) To direct respondents to pay compensation of Rs 25 lacs formental agony suffered by petitioner.mental agony suffered by petitioner.

(vii) To direct respondents to pay the cost litigation to petitioner.

(viii) To grant any other relief deemed fit and proper by the Hon’bleHigh Court in the interest of justice.”High Court in the interest of justice.”

3. The petitioner has filed the present W.P.(S) No. 4178/2023 claiming thefollowing reliefs:-following reliefs:- “(i)To call for entire records pertaining to the case.

(ii) To declare that the departmental proceedings initiated vide acharge sheet containing identical charges as were leveledagainst him by charge sheet dated 29.08.2008 lapsed on thedeath of husband of Petitioner having been remainedunconcluded and direct respondents to grant consequentialbenefits.charge sheet containing identical charges as were leveledagainst him by charge sheet dated 29.08.2008 lapsed on thedeath of husband of Petitioner having been remainedunconcluded and direct respondents to grant consequentialbenefits.

(iii) To direct respondents to pay the balance of retiral dues ofhusband of petitioner to petitioner including gratuity alongwithinterest @ 10 % p.a. compounded yearly.husband of petitioner to petitioner including gratuity alongwithinterest @ 10 % p.a. compounded yearly.

(iv) To direct respondents to pay compensation of Rs 25 lacs formental agony suffered by petitioner.mental agony suffered by petitioner.

(v) To direct respondents to pay the cost litigation to petitioner.

(vi) To grant any other relief deemed fit and proper by the Hon’bleHigh Court in the interest of justice.”High Court in the interest of justice.”

4. The common facts of the case in both writ petitions are that the petitioner isthe wife of the deceased employee, namely Praveen Sharma, who wasworking with the Respondent No. 1/Corporation, in the post of DeputyBusiness Manager. Initially, he joined the post of Accountant in the yearthe wife of the deceased employee, namely Praveen Sharma, who wasworking with the Respondent No. 1/Corporation, in the post of DeputyBusiness Manager. Initially, he joined the post of Accountant in the year

5.

1986, and ultimately, after several years of his service tenure, he was postedas Deputy Business Manager in the year 2007. At the time of bifurcation ofthe State, his services were allocated to the Respondent No. 1/Corporation.In the year 2008, certain charges were levelled against the husband of thepetitioner, and he was implicated in an offence registered at Police StationCity Kotwali, Mahasamund. In the Criminal Case, the husband of thepetitioner was acquitted vide judgment dated 02-07-2014 by the learnedChief Judicial Magistrate, Mahasamund. In the year 2006, a charge sheetwas issued against the husband of the petitioner for the initiation of adepartmental inquiry against him, which culminated in imposing a majorpenalty of his termination from service and recovery of Rs. 1.5 Crore fromhim, which is half of the loss sustained by the Respondent No.1/Corporation, vide order dated 25-06-2010. The departmental appealpreferred by the husband of the petitioner was rejected, and thereafter, aWrit Petition (S) No. 69/2011 was preferred before this Court. The said writpetition was disposed of on 24-10-2013 with the direction to the appellateauthority of the Respondent No. 1/Corporation to decide the appeal of thehusband of the petitioner by a speaking order. Thereafter, another WritPetition (S) No. 4239/2014 was filed by the husband of the petitioner, whichwas dismissed as withdrawn on 18-01-2021 with liberty to approach theCourt if need so arises. Before the withdrawal of the W.P.S. No. 4239/2014,the husband of the petitioner was reinstated on 11-11-2020, after quashmentof all the departmental orders. Thereafter, the W.P.S. No. 4239/2014 waswithdrawn. Since all the departmental orders, including the terminationorder, were quashed by the Corporation, the husband of the petitioner wasentitled to all the consequential benefits, including the back wages. After his reinstatement on 11-11-2020, another disciplinary proceeding wasissued on 31-12-2020, against him pertaining to Kunkuri Kendra and anothercharge sheet was issued on 21-10-2021 pertaining to Dhamtari and Mahasamund. The allegations in the subsequent disciplinary proceedingwere identical to the earlier proceeding, which was issued more than oneand a half decades after the alleged incident. On 18-11-2022, the husbandof the petitioner made his representation for quashment of the disciplinaryproceedings initiated against him by saying that in the Criminal Case, he hasbeen acquitted, and the loss of Rs. 3.30 Crores was recovered from theState Warehousing Corporation. In the meantime, the husband of thepetitioner has passed away on 16-01-2023. Since the departmental benefitsfor the period from 25-06-2010 to 11-11-2020 have not been paid to him, shemade a representation to the authorities. Only the CPF and insuranceamount have been paid to her, and gratuity, etc., has not been paid to her.Hence, this petition.

Arguments

Learned counsel for the petitioner would submit that when thedepartment/Corporation has quashed all the departmental orders, includingthe order of termination of the husband of the petitioner, and he has beenreinstated in service, he is entitled to all the service benefits, including theback wages. Though the disciplinary proceeding was initiated against thehusband of the petitioner, but the same was not concluded till his death, andit would automatically lapse on account of his death. He would rely upon theorder passed by the Hon’ble Division Bench of this Court in W.A. No.67/2016 (Chhattisgarh State Civil Supplies Corporation Ltd. and Othersv. Udho Prasad Sharma), order dated 26-02-2016. He would further submitthat the husband of the petitioner was acquitted in the Criminal Case, andthe amount of Rs. 3.30 Crores has already been recovered from the StateWarehousing Corporation. The husband of the petitioner was reinstated inservice after quashing all departmental orders, and therefore, there was nocharge and no disciplinary inquiry against him. Despite there being nocharge against him and the quashing of all the departmental orders, theservice benefits of the husband of the petitioner from the year 2010 to 2020

are withheld by the Respondent No. 1/Corporation, and she is entitled to thesame including the full back wages, interest and compensation, as she is thelegal heir of the deceased employee.

7. Per contra, learned counsel for the Respondents/Corporation would submitthat the petitioner has claimed multiple reliefs in her writ petition, whichinclude various disputed questions of fact, and therefore, the writ petition asframed by the petitioner is not maintainable. He would further submit that inthe 80[th] meeting of the Board, it was decided to quash all the departmentalorders against the petitioner and to reinstate him in service; however, it wasalso clearly mentioned in the order dated 11-11-2020 that the departmentalinquiry against the husband of the petitioner would be initiated separately.On 31-12-2020, another charge sheet was issued against the husband ofthe petitioner with respect to misappropriation and mishandlingtransportation of rice, when he was posted at Kunkuri Kendra and on 21-10-2021, pertaining to Dhamtari and Mahasamund. During the pendency of thedepartmental inquiry, the petitioner has expired on 20-01-2023 (correct dateis 16-01-2023 as per Annexure P-1). Thereafter, on 10-05-2023, theRespondent No. 1/Corporation immediately communicated for the release ofadmissible dues. The claim of EDLI has been deposited in the bank accountof the petitioner. He would further submit that the charge sheet against thehusband of the petitioner was pending in respect of alleged misappropriationarising out of Dhamtari, Mahasamund and Durg District. Though thehusband of the petitioner was reinstated, there are serious allegations ofmisappropriation, and disciplinary proceedings were pending against him; hewas not paid the departmental dues.

8. I have heard learned counsel for the parties and perused the documentsannexed with the petition by the parties.annexed with the petition by the parties.

9. It is not disputed by the parties that the husband of the petitioner wasreinstated on 11-11-2020 (Annexure R-1). In the order dated 11-11-2020, it isreinstated on 11-11-2020 (Annexure R-1). In the order dated 11-11-2020, it is specifically mentioned that all the earlier departmental orders are quashed,and he is reinstated. Departmental inquiry would be initiated separately. Thisreinstatement order is the basis of the claim of the petitioner that all thedepartmental orders are quashed, and there is no charge against thehusband of the petitioner, and he has been acquitted in the Criminal Case.Therefore, the petitioner, being the wife of the deceased employee, isentitled to all the departmental dues from the period of 2010 to 2020. It isnecessary to quote here the contents of the order dated 11-11-2020(Annexure R-1), which reads as under:-

“dzekad@LFkkiuk@2020@924] jk;iqj] fnukad 11-11-2020

svkn’k

fuxe lapkyd eaMy dh 80 oha cSBd fnukad 09-11-2020 ds ,ts.Mk dzekad 80-06esa fy;s x;s fu.kZ; vuqlkj Jh izoh.k 'kekZ ds fo#) iwoZ esa tkjh leLr foHkkxh;vkns’kksa dks fujLr dj lsok esa cgky djrs gq, mUgsa mi&O;olk; izca/kd ds inij eq[;ky;&jk;iqj esa rRdky izHkko ls inLFk fd;k tkrk gSA

Jh izoh.k 'kekZ ds fo#) foHkkxh; tkap dh dk;Zokgh i`Fkd ls dhtkosxhA”

10. It is also not in dispute that the husband of the petitioner was reinstated on11-11-2020, and a charge sheet was issued on 31-12-2020 in respect ofKunkuri Kendra. Another charge sheet was issued on 21-10-2021 pertainingto Dhamtari and Mahasamund as reflected from the document Annexure R-7in W.P.S. No. 4178/2023. During the pendency of the said charge sheets,the husband of the petitioner died on 16-01-2023. At the time of the death ofthe husband of the petitioner, the departmental inquiry proceeding waspending, but the same cannot proceed as the employee has died. Thepunishment order of his termination with respect to the departmental inquiryinitiated in the year 2008 is quashed by the 80[th] Board meeting, and there isno charge sheet for the same. There is no condition in the order dated 11-11-2020 when the husband of the petitioner was reinstated, except that thedepartmental inquiry would be initiated separately. The said charge sheet with respect to the allegation levelled in the year 2008, pertaining toDhamtari and Mahasamund, was concluded, and a termination order of theemployee was passed on 25-06-2010. The departmental appeal wasdismissed, but subsequently, vide order dated 11-11-2020, all thedepartmental orders against the petitioner were quashed and he wasreinstated, and the charge sheet was revived on 21-10-2021 (as reflected inAnnexure R-7 in W.P.S. No. 4178/2023). The subsequent charge sheetdated 31-12-2020 was with respect to the allegation of Kunkuri Kendra, andthe charge sheet dated 21-10-2021 was with respect to Dhamtari andMahasamund, which was also not concluded and before its conclusion, theemployee died.

As per the settled law, once the employee facing the charge sheet dies, allthe proceedings pending against him stand abated. It cannot be said that thedepartment has the right to proceed against a dead employee and to passan order against him. In the matter of “Shiksha Devi v. Haryana StateFederation of Consumers Co-operative Wholesale Stores Ltd.” decidedon 02-08-2022 in C.W.P. No. 21917 of 2016 (Punjab & Haryana High Court),it has held that:-

"11. Even otherwise, even if it is assumed for the sake of argumentthat the respondent had jurisdiction to issue the chargesheetsto the late husband of the petitioner, even after his retirement,then also the impugned order of recovery by way ofpunishment can not be sustained for the reason that noproceeding can continue against a dead employee. Thehusband of the petitioner, unfortunately, died on 16.05.2015. Itis the conceded position that till the said date, none of thechargesheets had attained finality so as to give jurisdiction tothe respondent to pass any orders on the chargesheet. Afterthe death of the employee, disciplinary proceedings abate;hence, as the husband of the petitioner had already passedaway, the proceedings initiated by the respondents in respectof the three charge sheets could not have continued anythat the respondent had jurisdiction to issue the chargesheetsto the late husband of the petitioner, even after his retirement,then also the impugned order of recovery by way ofpunishment can not be sustained for the reason that noproceeding can continue against a dead employee. Thehusband of the petitioner, unfortunately, died on 16.05.2015. Itis the conceded position that till the said date, none of thechargesheets had attained finality so as to give jurisdiction tothe respondent to pass any orders on the chargesheet. Afterthe death of the employee, disciplinary proceedings abate;hence, as the husband of the petitioner had already passedaway, the proceedings initiated by the respondents in respectof the three charge sheets could not have continued any further. Keeping in view the said factual position, the recoveryof Rs . 6,44,890/-, which has been imposed upon the latehusband of the petitioner, is held to be bad and accordinglyquashed."

12. In the matter of “Gulam Gausul Azam and Others v. State of U.P. and Others”, 2014 SCC Online All. 6394, the Allahabad High Court has held thatbefore the disciplinary authority could pass any order on the inquiry report,the petitioner died, ending the master and servant relationship; therefore, nopunishment order can be passed. Relevant paragraph of the judgment arebeing quoted below:- "There is another aspect of the matter. In the presentcase Abdul Kareem expired on 15.7.2011, i.e. before thedisciplinary authority could pass any order on the enquiryreport dated 3.7.2011. In the circumstances therefore, themaster and servant relationship between Late Abdul Kareemand the respondents also came to an end with his death andtherefore, the impugned order dated 21.11.2011 could nothave been passed after the death of Abdul Kareem.

In my opinion therefore the disciplinary authority couldnot have passed the order dated 21.11.2011 withholding theretiral dues and other benefits of late Abdul Kareem. WhenAbdul Kareem died on 15.7.2011 he could not have been saidto be a government servant thereafter and therefore the orderdated 21.11.2011 on the face of it is a wholly illegal andarbitrary order and has no basis in law and cannot survive.

Conclusion

So far as the matter of compassionate appointment ofthe petitioner no. 1 is concerned, for the same reasons thatsince the disciplinary authority has not taken any decisionregarding the finding of guilt against late Abdul Kareem prior tohis death, it could not be said that the charge had beenestablished against late Abdul Kareem as disciplinaryproceedings are concluded only with the passing of the orderof disciplinary authority and not when the enquiry officersubmits his report.

In this view of the matter, the writ petition is allowed andboth the impugned orders dated 21.11.2011 and 1.3.2012 are quashed. The respondents are directed to take steps forpayment of all retiral benefits to the legal heirs of late AbdulKareem. So far as the order dated 1.3.2012 regarding rejectionof the claim of petitioner no.1 for compassionate appointmentis concerned, a direction is issued to the District Magistrate,Deoria respondent no. 3 to take a decision afresh in this regardhaving regard to the educational qualification of the petitionerno. 1 and availability of vacancy within a period of two monthsfrom the date a certified copy of this order is received in hisoffice."

In the aforesaid case, the dispute was that the father ofpetitioner Abdul Kareem was died on 15.07.2011 before thedisciplinary Authority could pass any order on the inquiry reportdated 3.7.2011 and the Court has held that after the death, nosuch order can be passed against the petitioner and furtherdirected the authority to pay full post retiral benefits.

13. A similar dispute has also come before the Jharkhand High Court in thecase of “Jayanti Devi v. State of Bihar and Others”, 2001 SCC OnlineJhar. 370, the Court, after following the decision of the Bombay High Court,had taken the same view and directed the respondents to pay all post-retirement benefits to the widow. Relevant Paragraph Nos. 9, 10 and 11 ofthe judgment are being quoted below:- “9- It is well settled that a departmental proceeding can beinitiated against the government servant for the purpose ofimposing penalty if misconduct is established. Theimposition of penalty like dismissal or removal has nexus tothe contract of service. The proceeding thereforeautomatically lapse or terminated by reason of death ofdelinquent employee unless otherwise it is continued inaccordance with rules. Similar-question arose before theBombay High Court in the case of Hirabai Deshmukh and Anr. v.State of Maharashtra, 1986 Lab IC 248. A Division Benchwhile deciding the question observed : 'The provisions withregard to dismissal, removal and suspension of the civilservant do not permit holding of any further enquiry into theconduct of such a civil servant after his death. Such

Procedure

proceeding are intended to impose departmental penaltyand would abate by reason of the death of civil servant.The purpose of proceedings is to impose penalty, ifmisconduct is established against the civil servant. Thatcan only be achieved if the civil servant continues to be inservice. Upon broader view the proceedings are quosi-criminal in the sense it can result in fault finding and furtherimposition of penalty. The character of such proceedingshas to be treated as quasi-judicial for this purpose. In thelight of the character of the proceedings and the nature ofpenalty like dismissal or removal, or any other penalties,minor or major, it has nexus to the contract of service.Therefore, if the person who has undertaken that contractis not available, it should follow that no proceedings cancontinue. Thus when the proceedings are quite personal inrelation to such a contract of service, the same shouldterminate upon death of the delinquent. By reason of death,such proceedings would terminate and abate. We think thatsuch a result is also inferable from the provisions of Rule152-B of the Bombay Civil Services Rules."

10. In the instant case admittedly the delinquent-employeedied on 24.3.1999 and the Enquiry Officer submitted his reporton 30.8.1999. In the enquiry report (Annexure F) the EnquiryOfficer took notice of the fact that the delinquent- employeedied on 24.3.1999. The Enquiry Officer further took notice ofthe fact that the delinquent- employee had requested therespondents to keep the departmental proceeding in abeyancetill the disposal of the case pending before him. However theEnquiry Officer after the death of delinquent employee calledupon the respondents and on the basis of documentsproduced by them submitted enquiry report and on the basis ofthat report a formal order of dismissal was passed. In myopinion therefore the manner in which respondents proceededwith the departmental proceeding against the delinquent-employee, the enquiry report as well as the order of dismissalis vitiated in law and is null and void. I am, further of the viewthat the widow of the deceased employee cannot be deprivedof her legitimate claim of death-cum-retirement benefits on the ground of dismissal of the employee on the basis ofdepartmental proceeding initiated after 6 years of the order ofsuspension and that to on the basis of enquiry report submittedby the Enquiry Officer after proceeding ex parte against thedeceased- employee who died much before the date when theEnquiry Officer proceeded with the matter and submitted hisreport.

11. For the reasons aforesaid, this writ application is allowedand the respondents are directed to release all the death-cum-retirement dues in favour of the petitioner, who is widow of thedeceased employee as expeditiously as possible andpreferably within a period of 30 days from the date ofreceipt/production of copy of this order."

14. Further, in the matter of “Kaushlya Devi v. State of Bihar and Others”,2023 SCC Online Pat. 106, in para 16 of its order, the Patna High Court hasheld that:-2023 SCC Online Pat. 106, in para 16 of its order, the Patna High Court hasheld that:-

“16. It is settled proposition of law that judicial enquiry ordepartmental proceeding against a delinquent totally abates ondeath of an employee for the simple reason that in order topunish an employer, there must be subsistence of employerand employee relationship. Once an employee died the saidrelationship ceases. The defence, if any, is a personal defenceavailable to the employee and no person can be substituted inplace of dead employee; and defend the conduct of a deademployee and, as such, no order could have been passedwithholding the retirement or any outstanding dues.”departmental proceeding against a delinquent totally abates ondeath of an employee for the simple reason that in order topunish an employer, there must be subsistence of employerand employee relationship. Once an employee died the saidrelationship ceases. The defence, if any, is a personal defenceavailable to the employee and no person can be substituted inplace of dead employee; and defend the conduct of a deademployee and, as such, no order could have been passedwithholding the retirement or any outstanding dues.”

15. Upon hearing learned counsel for the parties and on consideration ofpleadings and documents placed on record, it is amply clear that in thepresent case, the husband of the petitioner was reinstated on 11-11-2020after quashing all the earlier departmental orders against him, and during thependency of the subsequent charge sheet, he died on 16-01-2023. Thus,the master and servant relationship is over on the death of the employee,and the departmental proceeding cannot be continued after his death, andas such, there is no order against him. When he was reinstated on 11-11-pleadings and documents placed on record, it is amply clear that in thepresent case, the husband of the petitioner was reinstated on 11-11-2020after quashing all the earlier departmental orders against him, and during thependency of the subsequent charge sheet, he died on 16-01-2023. Thus,the master and servant relationship is over on the death of the employee,and the departmental proceeding cannot be continued after his death, andas such, there is no order against him. When he was reinstated on 11-11- 2020, the condition was put in his reinstatement that the departmentalinquiry would be initiated separately; however, another charge sheet wasissued on 31-12-2020 in respect of Kunkuri Kendra, that too after about oneand a half decades of the alleged incident, and on 21-10-2021 in respect ofDhamtari and Mahasamund.

The petitioner has pleaded in para 8.14 of the writ petition that her husbandremained unemployed before his reinstatement, i.e. for a period of about adecade, he had to withdraw the provident fund contribution and availfinancial help for his survival and therefore, is entitled to the entireconsequential benefits, including the full back wages. Since the terminationorder of the husband of the petitioner was withdrawn/quashed and he wasreinstated on 11-11-2020 and after quashing all the earlier departmentalorders against him, he remains out of service and its consequential benefits,the employee and the petitioner on his behalf as his legal heir, is entitled forback wages along with other consequential benefits.

In “M/s Hindustan Tin Works Pvt. Ltd. V. The Employees of M/sHindustan Tin Works Pvt. Ltd. and Others”, 1979 (2) SCC 80, thefollowing has been held by the Supreme Court in para 9 (relevant partextracted) & para 11 :

“9..............Ordinarily, therefore, a workman whose service hasbeen illegally terminated would be entitled to full back wagesexcept to the extent he was gainfully employed during theenforced idleness. That is the normal rule. Any other viewwould be a premium on the unwarranted litigating activity of theemployer. If the employer terminates the service illegally andthe termination is motivated as in this case, viz., to resist theworkman’s demand for revision of wages, the termination maywell amount to unfair labour practice. In such circumstancesreinstatement being the normal rule, it should be followed withfull back wages. Articles 41 and 43 of the Constitution wouldassist us in reaching a just conclusion in this respect. By asuitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavored to secure work to theworkmen. In breach of the statutory obligation the serviceswere terminated and the termination is found to be invalid; theworkmen though willing to do the assigned work and earn theirlivelihood, were kept away therefrom. On top of it they wereforced to litigation upto the apex Court and now they are beingtold that something less than full back wages should beawarded to them. If the services were not terminated theworkmen ordinarily would have continued to work and wouldhave earned their wages. When it was held that the terminationof services was neither proper nor justified, it would not onlyshow that the workmen were always willing to serve but if theyrendered service they would legitimately be entitled to thewages for the same. If the workmen were always ready to workbut they were kept away therefrom on account of invalid act ofthe employer, there is no justification for not awarding them fullback wages which were very legitimately due to them. ADivision Bench of the Gujarat High Court in Dhari GramPanchayat v. Safai Kamdar Mandal(1), and a Division Benchof the Allahabad in Postal Seals Industrial CooperativeSociety Limited v. Labour Court II, Lucknow, have takenthis view and we are of the opinion that the view taken thereinis correct.

11. In the very nature of things there cannot to a straight-jacketformula for awarding relief of back wages. All relevantconsiderations will enter the verdict. More or less, it would be amotion addressed to the discretion of the Tribunal. Full backwages would be the normal rule and the party objecting to itmust establish the circumstances necessitating departure. Atthat stage the Tribunal will exercise its discretion keeping inview all the relevant circumstances. But the discretion must beexercised in a judicial and judicious manner. The reason forexercising discretion must be cogent and convincing and mustappear on the face of the record. When it is said thatsomething is to be done within the discretion of the authority,that something is to be done according to the rules of reasonand justice, according to law and not humor. It is not to be

arbitrary, vague and fanciful but legal and regular (SeeSusannah Sharp v. Wakefiled).”

18. The Hon’ble Supreme Court in “General Manager, Haryana Roadways v.Rudhan Singh” 2005 (5) SCC 591 following has been held :

“8. There is no rule of thumb that in every case where the IndustrialTribunal gives a finding that the termination of service was in violationof Section 25-F of the Act, entire back wages should be awarded. Ahost of factors like the manner and method of selection andappointment, i.e., whether after proper advertisement of the vacancyor inviting applications from the employment exchange, nature ofappointment, namely, whether ad hoc, short term, daily wage,temporary or permanent in character, any special qualificationrequired for the job and the like should be weighed and balanced intaking a decision regarding award of back wages. One of theimportant factors, which has to be taken into consideration, is thelength of service, which the workman had rendered with theemployer. If the workman has rendered a considerable period ofservice and his services are wrongfully terminated, he may beawarded full or partial back wages keeping in view the fact that at hisage and the qualification possessed by him he may not be in aposition to get another employment. However, where the total lengthof service rendered by a workman is very small, the award of backwages for the complete period, i.e., from the date of termination till thedate of the award, which our experience shows is often quite large,would be wholly inappropriate. Another important factor, whichrequires to be taken into consideration is the nature of employment. Aregular service of permanent character cannot be compared to shortor intermittent daily wage employment though it may be for 240 daysin a calendar year.”

9. In M.L. Binjolkar v. State of M.P. 2005 (6) SCC 224, the SupremeCourt placed reliance on Hindustan Motors Ltd. v. Tapan KumarBhattacharya 2002 (6) SCC 41, Rajendra Prasad Arya v. State ofBihar 2009 (9) SCC 514, Sonepat Coop. Sugar Mills Ltd. v. AjitSingh 2005 (3) SCC 232, Haryana State Coop. Land DevelopmentBank v. Neelam 2005 (5) SCC 91, Manager, Reserve Bank ofIndia v. S. Mani 2005 (5) SCC 100, Allahabad Jal Sansthan v.Court placed reliance on Hindustan Motors Ltd. v. Tapan KumarBhattacharya 2002 (6) SCC 41, Rajendra Prasad Arya v. State ofBihar 2009 (9) SCC 514, Sonepat Coop. Sugar Mills Ltd. v. AjitSingh 2005 (3) SCC 232, Haryana State Coop. Land DevelopmentBank v. Neelam 2005 (5) SCC 91, Manager, Reserve Bank ofIndia v. S. Mani 2005 (5) SCC 100, Allahabad Jal Sansthan v.

Daya Shankar Rai 2005 (5) SCC 124, to hold that ‘the earlier viewwas that whenever there is interference with the order oftermination or retirement, full back wages were the naturalcorollary. It has been laid down in the cases noted above that itwould depend upon several factors, and the court has to weighthe pros and cons of each case and take a pragmatic view. Thatbeing so, we do not think it appropriate to interfere with thequantum of 50% fixed by the High Court’.

10. The Supreme Court in Chairman-cum-Managing Director, CoalIndia Limited and others vs. Ananta Saha and Others 2011 (5)SCC 142,reiterated the view that even after quashment of theorder of termination, the payment of back wages still remainsdiscretionary and the power to grant back wages is to beexercised by the court/tribunal keeping in view the facts in theirentirety as no straitjacket formula can be evolved, nor a rule ofuniversal application can be laid for such cases and further thateven if the delinquent is re-instated, it would not automaticallymake him entitled for back wages as entitlement to get backwages is independent of re-instatement. India Limited and others vs. Ananta Saha and Others 2011 (5)SCC 142,reiterated the view that even after quashment of theorder of termination, the payment of back wages still remainsdiscretionary and the power to grant back wages is to beexercised by the court/tribunal keeping in view the facts in theirentirety as no straitjacket formula can be evolved, nor a rule ofuniversal application can be laid for such cases and further thateven if the delinquent is re-instated, it would not automaticallymake him entitled for back wages as entitlement to get backwages is independent of re-instatement.

19. Keeping in view the principles laid down by the Supreme Court in the above-stated cases and for the fact that in the case in hand, the husband of thepetitioner was reinstated in service by the Respondents/Corporation afterquashing the earlier departmental orders passed against him, though theorder of holding him guilty in departmental proceeding is not set-aside onmerits but quashed by the 80[th] Board meeting and in the meantime he wasremained terminated, and right to initiate departmental inquiry separately isreserved by the Respondent No.1/Corporation, this Court is of theconsidered opinion that considering the entirety of the circumstances,awarding 50% back wages to the petitioner would serve the ends of justice.The petitioner is entitled to 50% back wages for the relevant period withrespect to back wages payable to her husband. The petitioner is alsoentitled to other consequential benefits and remaining departmental dues, Aadil like gratuity, etc., if already not paid. The petitioner is also entitled to simpleinterest @ 8% per annum on the dues payable to her, from the date of herentitlement till their payment.

20. In view of the above consideration, the W.P.S. No. 3764/2023 is partlyallowed, and W.P.S. No. 4178/2023 is disposed of.

21. No order as to cost(s).

Sd/-

(Ravindra Kumar Agrawal)

Judge