GOWRAMMA C (DEAD) BY LRS versus MANAGER (PERSONNEL) HINDUSTAN AERONAUTICAL LTD. & ANR. on 23 February 2022

JUDGMENT

Leave granted.

1. The appellant impugns the judgment of the Division Bench bywhich the High Court confirmed the view taken by the learned singleJudge. The original appellant passed away and the legal representativespursue the appeal as additional appellants.

2. The appellant was appointed as Staff Nurse (Group-C) withthe respondent.There was an inquiry against her by the respondent onthe charge that the appellant had professed to belong to theScheduledCaste category and secured employment, whereas, she did not belongto the Scheduled Caste community. The Tahasildar verified the castecertificate and vide order dated 10.07.2009, it was found that the appellantdid not belong to the community ‘Adi Karnataka’ which is a ScheduledCaste. The appellant challenged the order of the Tahasildar before theHigh Court and the learned single Judge repelled the challenge to theorder by its judgment dated 29.12.2009. Following the said judgment, itis that the Disciplinary Authority, by order dated 08.10.2010, dismissedthe appellant from service relying upon the order of the Tahasildar. Theappellant challenged the judgment of the learned single Judge before theDivision Bench and the Division Bench by judgment dated 28.06.2011allowed the appeal filed by the appellant and found that actually thepower to rule on the Caste status did not lie with the Tahasildar but withanother authority and verification of the caste certificate was directedto be made over to the Bangalore District Caste Verification Committee,which was the Competent Authority. The said authority verified the castestatus of the appellant and found that the appellant, in fact, belonged tothe Scheduled Caste in question. There upon the appellant gave arepresentation and on 12.04.2014, the appellant was reinstated withoutany consequential benefits. A representation dated 28.04.2014, did notyield results. This occasioned the filing of the writ petitions, which hasfinally generated the appeals before us.

3. The learned Single Judge partly allowed the Writ Petitions filedand directed the first respondent to give promotion, if any, notionally and50 per cent of the back wages and the retirement benefits on the basisof the last pay cheque that she would be entitled to, in case, she weregranted any notional promotion.The appellant filed a review petition which A

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Awas dismissed. Thereafter, the writ appeals were filed, which culminatedin the impugned order being passed, affirming the judgment of the learnedSingle Judge.

4. Heard the learned counsel for the appellants and learned counselfor the respondents.B

5. Learned counsel for the appellants would contend that denialof the full back wages is unsustainable as it is a case where the appellantwas not at fault.She was kept out of the employment without anymisconduct on her part. She always belonged to the caste in questionand denial of the full back wages is not justified.

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6. Per-contra, learned counsel for the respondents would pointout that impugned orders would reflect that the Court had reconciled therelevant aspects that both the appellant and the respondents were not atfault. He would further project the dimension that it is a case where inthe writ petition the appellant had not specifically pleaded that she wasDnot gainfully employed during the period in question. It was only in thereview petition that the case was set up which was rightly rejected. Healso sought to draw support from a line of judgments for the contentionthat Courts have recognised that merely upon an employee beingreinstated it does not ipso facto follow that he becomes entitled for fullback wages. In such circumstances, those decisions will decide theEdestiny of such a claim. In the facts of this case, having regard to thefact that two Courts have concurrently found that the respondents wereacting on the basis of the report of Tahasildar who had opined that theappellant was not a member of the Scheduled Caste,the respondentswere entitled to take shelter under the principle that whenthe employerFwas not at fault,the employee cannot have the absolute right to claim fullback wages.

7. Having heard the learned counsel for the parties, we are of theview that the appellant is entitled to partial relief.This is for the followingreasons:-GThe appellant was employed by the respondent which is Stateunder Article 12 of the Constitution of India. The appellant wasdismissed from service only on the report given by the Tahasildar.There is no other charge against the appellant regarding any kindof misconduct or misrepresentation. The appellant relying on acaste certificate entitling her to be treated as member of theH

Scheduled Caste secured employment.This was put under a cloud.The doubt regarding her caste certificate was fortified in favourof the respondent by the report of the Tahasildar. It was, however,found that the Tahasildar was incompetent to give such an opinion.The competent authority has cleared the appellant and she stoodvindicated by the view expressed by the authority, which, in law,could possibly have found as to which caste she belonged to. It isa case, therefore, where the appellant was completely blamelessin the matter. She had to go through a long series of sittings evenaccording to the respondent which was held by way of enquiryand at the end of the day though on the basis of decision of theDivision Bench which again she was constrained to appeal to,matter reached the hands of the competent authority whichconclusively and finally found that she belonged to the ScheduledCaste which she always professed she was a member of.

8. At the same time, the respondent has a case that the appellantdid not specifically plead about her being unemployed during the relevantperiod. It is also pointed out that an attempt was made in the reviewwhich proved futile. In this regard support is sought from the decision in2018 (18) SCC 299 by the respondent.

9. It is true that no work no pay is a principle which is apposite incircumstances where the employee does not work but it is not an absoluteprinciple, which does not admit of exceptions. In this regard we maynotice that in one of the judgments relied upon by the respondents,namely,State of Kerala v. E.K. Bhaskaran Pillai2007(6)SCC 524 which,in fact, dealt with issue as to monetary benefits when retrospectivepromotion is given, this Court held:

“… So far as the situation with regard to monetary benefits withretrospective promotion is concerned, that depends upon case tocase. There are various facets which have to be considered.Sometimes in a case of departmental enquiry or in criminal case itdepends on the authorities to grant full back wages or 50 per centof back wages looking to the nature of delinquency involved inthe matteror in criminal cases where the incumbent has beenacquitted by giving benefit of doubt or full acquittal. Sometimes inthe matter when the person is superseded and he has challengedthe same before court or tribunal and he succeeds in that anddirection is given for reconsideration of his case from the date AB

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Apersons junior to him were appointed, in that case the court maygrant sometimes full benefits with retrospective effect andsometimes it may not. Particularly when the administration haswrongly denied his due then in that case he should be given fullbenefits including monetary benefit subject to there being anychange in law or some other supervening factors. However, it isBvery difficult to set down any hard-and-fast rule. The principle“no work no pay” cannot be accepted as a rule of thumb. Thereare exceptions where courts have granted monetary benefits also.”

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(Emphasis supplied)

C10. In the decision in P.V.K. Distillery Ltd. v. Mahendra Ram2009 (5) SC 705 again relied upon by respondent, the matter arose outof an award by the Labour Court where exercise of power under Section11 A of the Industrial Disputes Act was made. This is also a case whereincidentally the court noted that the appellant-employer remained closedfor years together and it was declared as asick unit. In this regard, a factDwhich weighed with the court is found reflected in following statement :

“18. Although direction to pay full back wages on a declarationthat the order of termination was invalid used to be the usualresult but now, with the passage of time, a pragmatic view of thematter is being taken by the Court realising that an industry mayEnot be compelledto pay to the workman for the period duringwhich he apparently contributed little or nothing at all to it and/orfor a period that was spent unproductively as a result whereof theemployer would be compelled to go back to a situation whichprevailed many years ago, namely, when the workman wasretrenched.”F

(Emphasis supplied)

11. In regard to interference in such matters, i.e., cases relating toback wages, we find similar approach adopted in other decisions whichno doubt the respondent lays store by [see in this regard 2007 (5) SCCG742]. Though the decision reported in Canara Bank v. DamodarGovind Idoorkar2009(4) SCC 323 again relied upon by the respondentdid involve the service of the employee being terminated as he had securedemployment in the reserved category using a false caste certificate andthe court modified direction of the High Court whichordered full backwages by substituting the order by reducing it to 50%,we do not find thatH

any principle has been laid down which could be treated as constitutingit as a precedent. The decision in Deepali Gundu Surwase v. KrantiJunior Adhyapak Mahavidyalaya (D.Ed.) and Others2013 (10) SCC324 involved the High Court setting aside the award of back wages onthe ground that the appellant had not proved the factum of non-employment. The court inter alia laid down as follows:

“(vi) In a number of cases, the superior courts have interferedwith the award of the primary adjudicatory authority on the premisethat finalization of litigation has taken long time ignoring that inmajority of cases the parties re not responsible for such delays.Lack of infrastructure and manpower is the principal cause fordelay in the disposal of cases. For this the litigants cannot beblamed or penalized. It would amount to grave injustice to anemployee or workman if he is denied back wagessimply becausethere is long lapse of time between the termination of his serviceand finality given to the order of reinstatement. The courts shouldbear in mind that in most of these cases, the employer is in anadvantageous position vis-à-vis the employee or workman. Hecan avail the services of best legal brain for prolonging the agonyof the sufferer i.e. the employee or workman, who can ill-affordthe luxury of spending money on a lawyer with certain amount offame. Therefore, in such cases it would be prudent to adopt thecourse suggested in Hindustan Tin Works (P)Ltd., (1979) 2SCC 80

12. The most important question is whether the employee is atfault in any manner. If the employee is not at all at fault and she waskept out of work by reasons of the decision taken by the employer, thento deny the fruits of her being vindicated at the end of the day would beunfair to the employee. In such circumstances, no doubt, the questionrelating to alternative employment that the employee may have resortedto, becomes relevant. There is also the aspect of discretion which isexercised by the Court keeping in view the facts of each case. As wehave already noticed, this is a case where apart from the charge of theemployee having produced false caste certificate, there is no othercharge.Therefore, we would think that interests of justice, in the facts of this,would be subserved, if we enhance the back wages from 50% to 75%of the full back wages, which she was otherwise entitled. The appealsare partly allowed.The impugned judgments will stand modified and the A

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742SUPREME COURT REPORTS

Arespondents shall calculate the amount which would be equivalent to75% of the back wages and disburse the amount remaining to be paidunder this judgment within a period of six weeks from today to theadditional appellants.

Pending application(s), if any, stands disposed of.B

Devika Gujral

Appeals partly allowed.

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