G H CHIEF REGIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED versus SIRAJ UDDIN KHAN on 11 July 2019

SUPREME COURT REPORTS[2019] 9 S.C.R. 232

[2019] 9 S.C.R.

ACHIEF REGIONAL MANAGER, UNITED INDIAINSURANCE COMPANY LIMITED

v.

SIRAJ UDDIN KHAN

(Civil Appeal No. 5390 of 2019)

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JULY 11, 2019

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Service Law – Payment of arrears of salary and otherbenefits – Respondent-assistant typist was transferred fromCAllahabad Branch to Jaunpur Branch – He did not join the saidbranch and was unauthorisedly absent from 02.02.2007 –Disciplinary proceedings were initiated against him – By order dated14.05.2009, disciplinary authority held respondent guilty of chargeof unauthorised absence – Thereafter, respondent attained the ageDof superannuation on 20.06.2012 – On 26.06.2012, disciplinaryauthority terminated his services – Appeal against the said orderdated 26.06.2012 was dismissed on 18.07.2014 – Writ petition wasfiled by respondent against the orders dated 14.05.2009, 26.06.2012and 18.07.2014 – Single Judge of the High Court by order dated29.05.2015, set aside the order dated 26.06.2012 and insofarEorder dated 14.05.2009 was concerned, no relief was granted tothe respondent – However, Division Bench of the High Court byorder dated 15.02.2016 quashed the order dated 14.05.2009 andheld appellant entitled to all consequential benefits – Since, thesaid order of the Division Bench of the High Court was notFchallenged it has become final – Thereafter, respondent filedanother writ petition praying for payment of salary from January,2007 to June, 2012 – The Single Judge of the High Court held thatappellant was entitled for salary w.e.f. 02.02.2007 upto 14.05.2009,since order dated 14.05.2009 was set aside by the Division Benchof the High Court – Further, order dated 26.06.2012 was also setGaside by the Single Judge of the High Court by order dated29.05.2015, thus, salary w.e.f. 14.05.2009 to 20.06.2012 cannotbe denied to the respondent – On appeal, held: In pursuance of theorder of the Division Bench of the High Court dated 15.02.2016,the respondent is entitled to receive salary from 02.02.2007 toH

14.05.2009 – Insofar claim for salary or back wages for theperiod 14.05.2009 to 20.06.2012 is concerned, there is noadjudication regarding claim of salary or back wages to therespondent in the impugned judgment of Single Judge for theperiod 14.05.2009 to 20.06.2012 – Single Judge was of theopinion that in view of the setting aside of the order dated26.06.2012, payment of salary is automatic, this view of the SingleJudge is not correct – The present is not a case where therespondent was dismissed from the service and consequent todismissal, he could not work and when dismissal was set aside, hewill be automatically entitled for back wages – Therefore, directionof the High Court to the appellant to make payment of salary after14.05.2009 till 20.06.2012 set aside – Further, appellant directedto consider the claim of respondent for back wages after 14.05.2009to 20.06.2012.

Partly allowing the appeal, the Court

HELD: 1. The issue, which has to be answered is as towhether by setting aside of the order dated 26.06.2012, wherebydisciplinary authority terminated the service of the respondent,the respondent was automatically entitled for back wages. Aperusal of the judgment of Single Judge dated 29.05.2015indicates that although Single Judge has set aside the order dated26.06.2012, but there was no order for payment of back wages orconsequential benefits. Single Judge has set aside the order dated26.06.2012 and has left the matter there. [Para 11] [241-D-E]

2. It was after 15.11.2017 that Writ Petition No.61102 of2017 was filed by the respondent. Thus, in the Writ PetitionNo.61102 of 2017, the Single Judge was required to adjudicateon the entitlement of respondent for payment of salary. SingleJudge has adjudicated with regard to entitlement of salary from02.02.2007 to 14.05.2009 and issued directions thereunder. ThisCourt may notice that the Division Bench while setting aside theorder dated 14.05.2009 has directed for payment ofconsequential benefits. [Para 13] [242-B-C]

3. There is no adjudication regarding claim of salary or backwages to the respondent in the impugned judgment of Single Judgefor the period 14.05.2009 to 20.06.2012. Single Judge was of the AB

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Aopinion that in view of the setting aside of the order dated26.06.2012, payment of salary is automatic, which view of theSingle Judge is not correct. The present is not a case where therespondent was dismissed from the service and consequent todismissal, he could not work and when dismissal was set aside,he will be automatically entitled for back wages. [Para 15]B[243-D-E]

4. It is not a case where respondent was kept away fromthe work on account of dismissal. Admittedly, the respondentattained the age of retirement on 20.06.2012 and orderterminating his services was passed only on 26.06.2012, whichCwas rightly held to be ineffective. [Para 17] [244--F]

5. In the present case, as noted above, the respondent wasnot kept away from work by any order of the appellant. The orderof termination of his services/dismissal was passed on 26.06.2012,after his retirement on 20.06.2012, which in no mannerDprohibited the respondent from working. The respondent duringsubmission has submitted that he was illegally transferred toBranch Office, Jaunpur from Allahabad. He was suffering from adisability of more than 40% and he could not have beentransferred to another place. There is nothing on record toEindicate that transfer of respondent from Branch Office, Allahabadto Branch Office, Jaunpur was at any time set aside or withdrawn.The salary upto 14.05.2009 was allowed to the respondent onaccount of setting aside of the order dated 14.05.2009, whichwas with all consequential benefits but with regard to entitle-ment of salary after 14.05.2009 to 20.06.2012, there has been noFadjudication by the High Court, which is apparent from judgmentof the High Court dated 03.07.2018. [Para 22] [247-F-H;248-A-B]

6. Single Judge having itself not determined theentitlement of respondent to receive salary after 14.05.2009 toG20.06.2012, it ought to have directed the appellant to considerthe entitlement and take a decision thereon. This Court is of theview that ends of justice be served in setting aside the directionof the High Court directing the appellant to make payment ofsalary after 14.05.2009 till 20.06.2012, with a direction to theHappellant to consider the claim of respondent for back wages after 14.05.2009 to 20.06.2012 and pass appropriate orders.[Para 23] [248-B-C]

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Deepali Gundu Surwase v. Kranti Junior AdhyapakMhavidyalaya (D.Ed.) and Others (2013) 10SCC 324 : [2013] 9 SCR 1 ; Airports Authority ofIndia and Others v. Shambhu Nath Das alias S.N. Das B

(2008) 11 SCC 498 – relied on.

Shobha Ram Raturi v. Haryana Vidyut Prasaran NigamLimited and Others (2016) 16 SCC 663– referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No.5390 of D

From the Judgment and Order dated 03.07.2018 of the High Courtof Judicature at Allahabad in Writ A. No.61102 of 2017.

P. P. Malhotra, Sr. Adv., Mohit Paul, Yasir Rauf, Ms.SumainaPhul, Advs. for the Appellant.

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Respondent-in-person.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. Leave granted.

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2. This appeal has been filed challenging the judgment dated03.07.2018 of Allahabad High Court, partly allowing the writ petition ofthe respondent, wherein direction has been issued by the High Court forpayment of arrears of salary and other benefits.

3. By our order dated 02.01.2019, limited notice was issued to thequestion as to whether the respondent was entitled for payment ofsalary after 14.05.2009 to 20.06.2012. The respondent has filed a counteraffidavit and appeared in person when the matter was heard on01.07.2019.

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4. We have heard Mr. P.P. Malhotra, learned senior counsel forthe appellant and the respondent appearing in-person.

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A5. The brief facts of the case necessary to be noticed fordeciding the limited issue as entertained by this Court in this appealare: - 5.1 The respondent was appointed by the appellant company on thepost of assistant/typist. The respondent was transferred byBorder dated 18.08.2006from Allahabad branch of the companyto Jaunpur branch in pursuance of which he was relieved on01.02.2007 from Allahabad to join at Branch Office, Jaunpur.The respondent did not join and was unauthorizedly absent from02.02.2007. A charge sheet dated 07.06.2007 was issued withregard to his unauthorised absence from 02.02.2007 toC07.06.2007, for which disciplinary proceedings were initiated,Writ petition No.11840 of 2008 was filed by the respondentpraying for expeditious disposal of the departmental inquiry andfurther direction to the appellant for payment of salary w.e.f.23.07.2007.

D5.2 Learned Single Judge of the High Court vide its order dated05.03.2008 disposed of the writ petition directing forexpeditious disposal of the proceedings and with regard to claimof the salary of the respondent, direction was issued to considerand decide the representation of the respondent dated 11.11.2007.EThe disciplinary proceedings with regard to unauthorisedabsence resulted in order dated 14.05.2009 of the disciplinaryauthority holding the respondent guilty of charge of unauthorisedabsence and awarding punishment of “reduction of basic payby two steps” under Rule 23(a) of the General Insurance(Conduct, Discipline & Appeal) Rules, 1975. The respondentFfiled an appeal, which too was rejected.

5.3 A second charge sheet was issued alleging unauthorised absenceof 663 days. Charge sheet was sent to the respondent but hedid not receive the same. The inquiry was conducted ex-parte.The respondent, in the meantime, attained the age ofGsuperannuation on 20.06.2012. An order dated 26.06.2012 waspassed by the disciplinary authority terminating his services. Adepartmental appeal against the order dated 26.06.2012 wasalso dismissed on 18.07.2014. A Writ petition No. 59041 of 2014was filed by the respondent praying for quashing the orders H

dated 14.05.2009, 26.06.2012 and 18.07.2014. The learned SingleJudge decided the writ petition filed by the respondent vide itsjudgment dated 29.05.2015. The order dated 26.06.2012terminating his services was set aside on two grounds, firstly,the inquiry proceedings are vitiated since the charge sheet wasnever served upon the respondent and secondly, the respondenthaving already retired on 20.06.2012, he could not have beenterminated on 26.06.2012. Insofar as the challenge to orderdated 14.05.2009 was concerned, awarding punishment ofreduction of basic pay by two steps, writ petition was dismissedon the ground that the same is barred by laches and the relief tothat extent was denied.

5.4 The appellant aggrieved by the order of the learned Single Judgedated 29.05.2015 had filed a Special Leave Petition (C) No.26395of 2015, which was dismissed by this Court on 18.09.2015. Therespondent, aggrieved by order of learned Single Judge insofaras it has dismissed the writ petition challenging the order dated14.05.2009, filed a special appeal before Division Bench of theHigh Court. The Division Bench proceeded to consider thechallenge to the order dated 14.05.2009 and allowed the specialappeal setting aside the order rejecting the challenge to theorder dated 14.05.2009. The order dated 14.05.2009 wasquashed and it was held that appellant shall be entitled to allconsequential benefits. The order dated 15.02.2016 passed bythe Division Bench in the special appeal was not challengedand has become final.

5.5 A contempt application was filed by the respondent beingContempt Application No. 2680 of 2016 alleging disobedienceof judgment of learned Single Judge dated 29.05.2015 as wellas contempt of the Division Bench order dated 15.02.2016.

5.6 The respondent filed another writ petition being Writ PetitionNo. 61102 of 2017 praying for salary for the period fromJanuary, 2007 to June, 2012 with interest and all consequentialbenefits, such as, promotion arrears, medical bills, lump summedical reimbursement and re-fixation of pension. The saidwrit petition has been partly allowed by impugned judgment dated03.07.2018.

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A5.7 The learned Single Judge held that the order dated 14.05.2009awarding punishment having been set aside by Division Benchof the High Court by order dated 15.02.2016, the appellant isentitled for salary w.e.f. 02.02.2007 upto 14.05.2009. Thecontention regarding non-payment of salary by the appellantfrom 02.02.2007 to 20.06.2012 was noticed in paragraph No.16Bof the impugned judgment, to the effect that respondent havingbeen relieved from Branch Office, Allahabad by relieving orderdated 01.02.2007 and he having not joined the Branch Office,Jaunpur, he was not entitled for any salary. Insofar asentitlement of salary from 02.02.2007 to 14.05.2009 is concernedCfollowing directions were issued by learned Single Judge inparagraph Nos. 17 and 19, which is to the following effect: - “17. However, this Court in Special Appeal Defective No.87 of 2016 by its order dated 15.02.2016 had set aside thepunishment order dated 14.05.2009 and directed that theDappellant shall be entitled to consequential reliefs. This Courthaving directed the petitioner to be given all consequentialbenefits and the order dated 14th of May, 2009 being quashed,the petitioner was entitled to salary w.e.f. 02.02.2007 up to14.05.2009, the date, the punishment order was passed ofreduction in basic pay by two stages. This payment of salaryEhas apparently not been made by the respondent on the groundof “No Work No Pay”.

19. The petitioner is entitled to salary w.e.f. 02.02.2007 up to14.05.2009 along with interest at the rate of 18 per cent perannum.”

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5.8 With regard to claim of salary of the appellant after 14.05.2009,learned Single Judge took the view that the order dated26.06.2012 having been set aside by learned Single Judge on29.05.2015, which judgment was unsuccessfully challenged inthis Court and has attained finality, hence salary w.e.f.G14.05.2009 to 20.06.2012 cannot be denied and direction wasissued to pay salary with 18% interest. With regard to otherclaims, the High Court noticed the payments made to therespondent towards provident fund, gratuity fund, GSLI Claim,Leave Encashment and other payments totallingHRs.25,73,830/-.

5.9 There is no other issue in the present appeal except directionfor payment of salary after 14.05.2009 to 20.06.2012.

6. Learned counsel for the appellant submits that High Courtcommitted error in directing for payment of salary after 14.05.2009 to20.06.2012, whereas the respondent absented from work during the periodand was clearly not entitled for payment of salary on the principle of“No Work No Pay”. It is submitted that present is not a case where byvirtue of any order terminating the services of the respondent, he couldnot work. With regard to salary after 14.05.2009 till 20.06.2012, learnedSingle Judge has not adjudicated the claim except observing that in viewof the judgment of High Court dated 29.05.2015 against which specialleave petition was dismissed, respondent was entitled for arrears ofsalary. He further submits that the fact that by virtue of the judgment oflearned Single Judge dated 29.05.2015, respondent has to be treated inservice does not automatically result in any direction to pay the salary,since no such direction was issued in the judgment of learned SingleJudge dated 29.05.2015. The payment of salary for the aforesaid perioddoes not automatically flow from the judgment of learned Single Judge.He submits that the fund of the appellant company being public fund, thepayment of salary cannot be made when the respondent kept himselfaway from the work.

7. The respondent appearing in person refuted the submissions ofthe appellant and submits that he was entitled for salary since hisdismissal order dated 26.06.2012 was set aside on 29.05.2015, againstwhich special leave petition filed by the company had been dismissed bythis Court on 18.09.2015. He submits that he went to join the BranchOffice at Allahabad on 23.07.2007 but he was not permitted to takecharge by Branch Manager of Branch Office-1, Allahabad. He hasplaced reliance on the judgment of this Court in Shobha Ram RaturiVs. Haryana Vidyut Prasaran Nigam Limited and Others, (2016)16 SCC 663. He submits that the principle of “No Work No Pay”does not apply in the facts of the present case and learned Single Judgehas rightly directed for payment of salary after 14.05.2009 to 20.06.2012.

8. We have considered the submissions of the learned counsel forthe parties and have perused the records.

9. In Writ Petition No. 59041 of 2014, two set of orders werechallenged namely the order dated 14.05.2009, by which for unauthorised AB

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Aabsence for the period 02.02.2007 to 07.06.2007, he was awardedpunishment of reduction of basic pay by two steps and secondly, theorder dated 26.06.2012 terminating his services and order dated18.07.2014 dismissing his departmental appeal. Learned Single Judgehas set aside the order dated 26.06.2012 vide its judgment dated29.05.2015 as noted above. The learned Single Judge quashed theBorder dated 26.06.2012 on following two grounds – one, second chargesheet alleging unauthorised absence for 663 days was never served onthe respondent and second, the respondent having retired from serviceon 20.06.2012, no order terminating his services could have been passedon 26.06.2012. The relevant discussion and order of the learned SingleCJudge with regard to order dated 26.06.2012 is as follows:-

“There is nothing on record to show that the chargesheet wasever sought to be served upon the petitioner through registeredpost and it is not known as to from where this endorsement hascome and to who wrote the remark “GHAR BAND RAHTADHAI” or “not met”. Even, if it is assumed that the petitioner wasnot at his house and therefore the house was closed, it wasexpected of the respondents to have taken steps to notify thepetitioner about the chargesheet through newspaper publication.Nothing has been mentioned in the counter affidavit as to whetherthis procedure was adopted. Therefore, it is quite clear that theEchargesheet was never served upon the petitioner till 20.06.2012and thereafter the order of removal from service was passed on26.06.2012. In this view of the matter, the petitioner cannot besaid to have had notice of the enquiry proceedings and thereforeif the respondents proceeded to hold enquiry ex parte, suchFproceedings are clearly vitiated and it must be held that thepetitioner has been denied reasonable and adequate opportunityof hearing.

There is another aspect of the matter. The petitioner’s case isthat he retired from service on 20.06.2012 and the order ofGtermination was passed on 26.06.2012. The averments inparagraph 39 of the counter affidavit are also to the effect thatthe petitioner retired from service and even on the date ofretirement he had refused to accept the chargesheet and abscondedfrom office. This being so once the petitioner retired from serviceon 20.06.2012 no order terminating his services could have beenHpassed on 26.06.2012 as he ceased to be in service of the respondents w.e.f. 20.06.2012. A person cannot be removed fromservice after he has already retired from service.

In this view of the matter, the impugned orders dated 26.06.2012and 18.07.2014 cannot survive and are accordingly quashed.

The writ petition is allowed.”

10. As noted above, learned Single Judge dismissed the writpetition insofar as order dated 14.05.2009 is concerned, challenge towhich order stood accepted by Division Bench in Special Appeal No. 87of 2016, where Division Bench has set aside the order dated 14.05.2009and directed for payment with consequential benefits. In pursuance ofthe order of the Division Bench dated 15.02.2016, the respondent isentitled to receive salary from 02.02.2007 to 14.05.2009 with regard towhich we have not entertained the appeal.

11. Now, the issue, which has to be answered by us is as to whetherby setting aside of the order dated 26.06.2012, the respondent wasautomatically entitled for back wages. A perusal of the judgment oflearned Single Judge dated 29.05.2015 indicates that although learnedSingle Judge has set aside the order dated 26.06.2012, but there was noorder for payment of back wages or consequential benefits. LearnedSingle Judge has set aside the order dated 26.06.2012 and has left thematter there.

12. It is further relevant to notice that when contempt applicationwas filed by the respondent being Contempt Application No. 2680 of2016, the High Court observed that there has been no adjudication bythe Writ Court on the question as to whether the respondent was entitledto payment of salary for the period 2007 to 2012. The observations ofthe Contempt Court in last two paragraph is as follows:- “From the materials brought on record, it transpires that there isno adjudication by the writ court on the question as to whether theapplicant is entitled to payment of salary for the period 2007 to2012, particularly as he had not worked during that period. Thereis also no adjudication of his right to claim promotion or to receivemedical bills. The issues therefore as are being raised by theapplicant in this petition need not be entertained by this Court, atthis stage. It transpires that on account of setting aside of thedismissal order the petitioner has been paid all his retiral dues.

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ALeaving it open for the applicant to seek appropriate adjudicationin respect of his entitlement to receive salary for the period 2007to 2012 as well as other benefits including promotional pay scale,medical bills and re-fixation of his pension, in appropriateproceedings, this contempt petition is consigned to records.”

B13. It was after 15.11.2017 that Writ Petition No.61102 of 2017was filed by the respondent. Thus, in the Writ Petition No.61102 of2017, the learned Single Judge was required to adjudicate on theentitlement of respondent for payment of salary. Learned Single Judgehas adjudicated with regard to entitlement of salary from 02.02.2007 to14.05.2009 and issued directions thereunder. We may notice that theCDivision Bench while setting aside the order dated 14.05.2009 hasdirected for payment of consequential benefits. It is useful to extractthe operative portion of the said Appellate Court judgment dated15.02.2016, which is to the following effect:- “We accordingly allow the special appeal. The judgment andDorder of the learned Single Judge dated 29 May, 2015 and 2December, 2015 insofar as it rejects the challenge laid by theappellant to the order dated 14 May, 2009 is hereby set aside.Consequently, the order dated 14 May, 2009 is also quashed. Theappellant shall be entitled to all consequential benefits.”

E14. There is clear difference between the direction of the HighCourt insofar as setting aside the order dated 14.05.2009 is concernedand insofar as setting aside the order dated 26.06.2012 is concerned,whereas there is a clear direction for payment of consequential reliefswhile setting aside the order dated 14.05.2009 there is no direction withFregard to payment of salary while setting aside the order dated26.06.2012, hence the question was required to be gone into by learnedSingle Judge while deciding the Writ Petition No.61102 of 2017. Wemay also notice the consideration of learned Single Judge while noticingthe claim of the respondent for quashing and setting aside the orderdated 26.06.2012. In paragraph Nos. 20 and 21, entire discussion re-Ggarding setting aside the order dated 26.06.2012 is contained, which is tothe following effect:- “20. With regard to the absence of the petitioner thereafter, thepetitioner was subjected to disciplinary proceeding and a chargesheet was issued to him alleging the absence of 663 days. The inquiry proceeded ex-parte against him and ultimately thedismissal order was passed on the ground of unauthorisedabsence on 26.06.2012. The petitioner had in the meantime beenretired on 20.06.2012 and this Court in its judgment and orderdated 29.05.2015 in Writ - A No. 59041 of 2014 set aside thedismissal order and the appellate order. This judgment of this Courtwas challenged by the respondent in Special Leave Petition whichwas dismissed on 18.09.2015 and the judgment and order dated29.05.2015 attained finality.

21. The respondent cannot therefore say that the petitioner wasunauthorisedly absent for the said period now at this late stage.The petitioner is entitled to the arrears of salary w.e.f. 14.05.2009up to 20.06.2012, the date of his retirement, along with interest atthe rate of 18% per annum from the date when it became due tillthe date of its actual payment.”

15. There is no adjudication regarding claim of salary or backwages to the respondent in the impugned judgment of learned SingleJudge for the period 15.05.2009 to 20.06.2012. Learned Single Judgewas of the opinion that in view of the setting aside of the order dated26.06.2012, payment of salary is automatic, which view of the SingleJudge is not correct. The present is not a case where the respondentwas dismissed from the service and consequent to dismissal, he couldnot work and when dismissal was set aside, he will be automaticallyentitled for back wages.

16. We may notice some of the judgments of this Court whereissue of back wages has been considered by this Court. This Court inDeepali Gundu Surwase Vs. Kranti Junior AdhyapakMhavidyalaya (D.Ed.) And Others, (2013) 10 SCC 324 wasconsidering a case where the question was considered as to whetherthe appellant was entitled to wages for the period she was kept out ofservice forcibly by the management of school. In paragraph No. 22,following was laid down:- “22. The very idea of restoring an employee to the position whichhe held before dismissal or removal or termination of serviceimplies that the employee will be put in the same position in whichhe would have been but for the illegal action taken by theemployer. The injury suffered by a person, who is dismissed or A

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Aremoved or is otherwise terminated from service cannot easily bemeasured in terms of money. With the passing of an order whichhas the effect of severing the employer-employee relationship,the latter’s source of income gets dried up. Not only theemployee concerned, but his entire family suffers graveadversities. They are deprived of the source of sustenance. TheBchildren are deprived of nutritious food and all opportunities ofeducation and advancement in life. At times, the family has toborrow from the relatives and other acquaintance to avoidstarvation. These sufferings continue till the competentadjudicatory forum decides on the legality of the action taken byCthe employer. The reinstatement of such an employee, which ispreceded by a finding of the competent judicial/quasi-judicial bodyor court that the action taken by the employer is ultra vires therelevant statutory provisions or the principles of natural justice,entitles the employee to claim full back wages. If the employerwants to deny back wages to the employee or contest hisDentitlement to get consequential benefits, then it is for him/her tospecifically plead and prove that during the intervening period theemployee was gainfully employed and was getting the sameemoluments. The denial of back wages to an employee, who hassuffered due to an illegal act of the employer would amount toEindirectly punishing the employee concerned and rewarding theemployer by relieving him of the obligation to pay back wagesincluding the emoluments.”

17. We may hasten to add that present is not a case whererespondent was kept away from the work on account of dismissal.FAdmittedly, the respondent attained the age of retirement on 20.06.2012and order terminating his services was passed only on 26.06.2012, whichwas rightly held to be ineffective.

18. We may notice another judgment of this Court in AirportsAuthority of India and Others Vs. Shambhu Nath Das alias S.N.GDas, (2008) 11 SCC 498. In the above case, the respondent did notjoin after expiry of the leave. The respondent was issued a warning thatunless he joins on or before 30.10.1985, failing which it would bepresumed that he had voluntarily abandoned his service with theconsequence that his name would be struck off the rolls with effectfrom 01.11.1985. The said order was challenged by the respondent andH

learned Sigle Judge on 10.11.1995 directed the Airports Authority ofIndia to allow the respondent to join duty but it was held that he shall notbe entitled for the arrears of pay for the period he was absent. Theorder of learned Single Judge was again challenged by the respondentwithout joining. The Division Bench set aside the order of the learnedSingle Judge and remanded the matter back to the learned Single Judge.Learned Single Judge directed the appellant to reinstate the respondentand further directed that insofar as the salary of the writ petitioner isconcerned, during the period he stayed away from the work, AirportsAuthority of India, is directed to consider the matter sympatheticallyand, if it is permissible under its rules, allow to him half of the salary andother benefits during the period from 17.10.1985 till 10.11.1995. TheAirports Authority of India accepted the judgment and allowed him tojoin w.e.f. 01.11.1999 and passed an order on 14.05.2002 holding thatthe period of unauthorised absence was to be treated as dies-non andthe claim for back wages was accordingly disallowed on the principle of“no work no pay”. The order dated 14.05.2002 was once againchallenged by the respondent claiming back wages, which was allowedby the learned Single Judge. On further denial of claim, matter wastaken by respondent to learned Single Judge to issue certain directions.Against the learned Single Judge’s Order, matter was taken in appealbefore Division Bench, where direction to pay 50% of back wages wasissued. Allowing the appeal, this Court stated following in paragraphNos. 8 to 11:- “8. This order of the learned Single Judge has been set aside bythe Division Bench vide the impugned order dated 21-3-2007 withthe observations that the order of the High Court in CR (W)No. 5715 of 1986 which had directed that the respondent be paid50% of the back wages for the period from 17-10-1985 to10-11-1995 should be complied with.

9. The learned counsel for the appellant has pointed out that asthe respondent had not attended to his duties for almost 15 yearsdespite having been called upon to do so repeatedly, the directionof the Division Bench to grant him back wages from 17-10-1985to 10-11-1995 was clearly not justified on the principle of “nowork no pay”. She has pointed out that the appellant Authoritywould have been fully justified even if it had dismissed therespondent from service, but on the contrary, a huge benefit had ABC

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already been given to him as he had been taken back in servicedespite having remained absent for almost fifteen years.

10. The learned counsel for the respondent has, however, supportedthe judgment of the Division Bench. We are of the opinion that inthe light of the fact that the respondent did not report for duty for15 years, there was no justification whatsoever to grant him anyback wages on the general principle that nobody could be directedto claim wages for the period that he remained absent withoutleave or without justification. We also find that the judgment dated13-8-1999 which had attained finality had directed as under:

“(a) Insofar as the salary of the writ petitioner is concernedduring the period he stayed away from the work, therespondent Airports Authority of India, is directed to considerthe matter sympathetically and, if it is permissible under itsrules, allow to him half of the salary and other benefits.”

11. This claim was considered by the competent authority andrejected for valid reasons. We are, thus, unable to endorse theHigh Court’s order for payment of 50% back wages for the periodfrom 17-10-1985 to 10-11-1995 which are far in excess of thedirections in the order dated 13-8-1999. We accordingly allowthis appeal, set aside the order of the Division Bench and restorethe order of the learned Single Judge dated 15-4-2004.”

19. This Court held that there was no justification whatsoever togrant any back wages to the respondent on the general principle thatnobody could be directed to claim wages for the period that he remainedabsent without leave or without justification.

20. We may further notice the judgment of this Court, which hasalso been relied on by the respondent in his counter affidavit, i.e.,judgment of this Court in Shobha Ram Raturi Vs. Haryana VidyutPrasaran Nigam Limited and Others (supra). In the above case,the appellant was retired from service on 31.12.2002, even though hewould have, in the ordinary course, attained his date of retirement onsuperannuation, only on 31.12.2005. The appellant assailed the order ofretirement, which was allowed by learned Single Judge. Learned SingleJudge has denied the back wages to the appellant on the principle of “nowork no pay”. The order of learned Single Judge was assailed by theappellant by filing a Letters Patent Appeal, which too was dismissed.

This Court allowed the appeal of the appellant and made followingobservations in paragraph Nos. 3 and 4:- “3. Having given our thoughtful consideration to the controversy,we are satisfied, that after the impugned order of retirement dated31-12-2002 was set aside, the appellant was entitled to allconsequential benefits. The fault lies with the respondents in nothaving utilised the services of the appellant for the period from1-1-2003 to 31-12-2005. Had the appellant been allowed tocontinue in service, he would have readily discharged his duties.Having restrained him from rendering his services with effectfrom 1-1-2003 to 31-12-2005, the respondent cannot be allowedto press the self-serving plea of denying him wages for the periodin question, on the plea of the principle of “no work no pay”.

4. For the reasons recorded hereinabove, we are satisfied, thatthe impugned order passed by the High Court, to the limitedextent of denying wages to the appellant, for the period from1-1-2003 to 31-12-2005 deserves to be set aside. The same isaccordingly hereby set aside.”

21. This Court held in the above case that; having restrained theappellant from rendering his services with effect from 1-1-2003 to31-12-2005, the respondent cannot be allowed to press the plea of theprinciple of “no work no pay” for denying the wages. In the above case,the appellant was restrained from working due to order of retirementdated 31.12.2002, due to which he could not work till his normalretirement. When the order dated 31.12.2002 was set aside,automatically, he became entitled for back wages and the principle of“no work no pay” was not attracted.

22. In the present case, as noted above, the respondent was notkept away from work by any order of the appellant. The order oftermination of his services/dismissal was passed on 26.06.2012, afterhis retirement on 20.06.2012, which in no manner prohibited therespondent from working. The respondent during submission hassubmitted that he was illegally transferred to Branch Office, Jaunpurfrom Allahabad. He was suffering from a disability of more than40% and he could not have been transferred to another place. There isnothing on record to indicate that transfer of respondent from BranchOffice, Allahabad to Branch Office, Jaunpur was at any time set aside A

BC

D

E

F

G

H

A

BC

D

E

F

G

H

or withdrawn. The salary upto 14.05.2009 was allowed to therespondent on account of setting aside of the order dated 14.05.2009,which was with all consequential benefits but with regard to entitlementof salary after 14.05.2009 to 20.06.2012, there has been no adjudicationby the High Court, which is apparent from judgment of the High Courtdated 03.07.2018, as extracted above.

A

B

23. Learned Single Judge having itself not determined theentitlement of respondent to receive salary after 14.05.2009 to 20.06.2012,it ought to have directed the appellant to consider the entitlement andtake a decision thereon. We are of the view that ends of justice beserved in setting aside the direction of the High Court directing theCappellant to make payment of salary after 14.05.2009 till 20.06.2012,with a direction to the appellant to consider the claim of respondent forback wages after 14.05.2009 to 20.06.2012 and pass appropriate ordersgiving reasons within three months from today. It shall also be open forthe respondent to submit an appropriate representation alongwithDrelevant materials regarding his entitlement for salary for the period15.05.2009 to 20.06.2012 to the appellant within a period of one monthfrom today.

24. The appeal is partly allowed to the extent as indicated above.The parties shall bear their own costs.

E

Ankit Gyan

Appeal partly allowed.

F

G

H