Service Law – Payment of arrears of salary and other benefits – Respondent-assistant typist was transferred from Allahabad Branch to Jaunpur Branch – He did not join the said branch and was unauthorisedly absent from 02.02.2007 – Disciplinary proceedings were initiated against him – By order dated 14.05.2009, disciplinary authority held respondent guilty of charge of unauthorised absence – Thereafter, respondent attained the age of superannuation on 20.06.2012 – On 26.06.2012, disciplinary authority terminated his services – Appeal against the said order dated 26.06.2012 was dismissed on 18.07.2014 – Writ petition was filed by respondent against the orders dated 14.05.2009, 26.06.2012 and 18.07.2014 – Single Judge of the High Court by order dated 29.05.2015, set aside the order dated 26.06.2012 and insofar order dated 14.05.2009 was concerned, no relief was granted to the respondent – However, Division Bench of the High Court by order dated 15.02.2016 quashed the order dated 14.05.2009 and held appellant entitled to all consequential benefits – Since, the said order of the Division Bench of the High Court was not challenged it has become final – Thereafter, respondent filed another writ petition praying for payment of salary from January, 2007 to June, 2012 – The Single Judge of the High Court held that appellant 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 Bench of the High Court – Further, order dated 26.06.2012 was also set aside by the Single Judge of the High Court by order dated 29.05.2015, thus, salary w.e.f. 14.05.2009 to 20.06.2012 cannot be denied to the respondent – On appeal, held: In pursuance of the order of the Division Bench of the High Court dated 15.02.2016, the respondent is entitled to receive salary from 02.02.2007 to 14.05.2009 – Insofar claim for salary or back wages for the period 14.05.2009 to 20.06.2012 is concerned, there is no adjudication regarding claim of salary or back wages to the respondent in the impugned judgment of Single Judge for the period 14.05.2009 to 20.06.2012 – Single Judge was of the opinion that in view of the setting aside of the order dated 26.06.2012, payment of salary is automatic, this view of the Single Judge is not correct – The present is not a case where the respondent was dismissed from the service and consequent to dismissal, he could not work and when dismissal was set aside, he will be automatically entitled for back wages – Therefore, direction of the High Court to the appellant to make payment of salary after 14.05.2009 till 20.06.2012 set aside – Further, appellant directed to consider the claim of respondent for back wages after 14.05.2009 to 20.06.2012.
Partly allowing the appeal, the Court
HELD: 1. The issue, which has to be answered is as to whether by setting aside of the order dated 26.06.2012, whereby disciplinary authority terminated the service of the respondent, the respondent was automatically entitled for back wages. A perusal of the judgment of Single Judge dated 29.05.2015 indicates that although Single Judge has set aside the order dated 26.06.2012, but there was no order for payment of back wages or consequential benefits. Single Judge has set aside the order dated 26.06.2012 and has left the matter there. [Para 11] [241-D-E]
2. It was after 15.11.2017 that Writ Petition No.61102 of 2017 was filed by the respondent. Thus, in the Writ Petition No.61102 of 2017, the Single Judge was required to adjudicate on the entitlement of respondent for payment of salary. Single Judge has adjudicated with regard to entitlement of salary from 02.02.2007 to 14.05.2009 and issued directions thereunder. This Court may notice that the Division Bench while setting aside the order dated 14.05.2009 has directed for payment of consequential benefits. [Para 13] [242-B-C]
3. There is no adjudication regarding claim of salary or back wages to the respondent in the impugned judgment of Single Judge for the period 14.05.2009 to 20.06.2012. Single Judge was of the opinion that in view of the setting aside of the order dated 26.06.2012, payment of salary is automatic, which view of the Single Judge is not correct. The present is not a case where the respondent was dismissed from the service and consequent to dismissal, he could not work and when dismissal was set aside, he will be automatically entitled for back wages. [Para 15] [243-D-E]
4. It is not a case where respondent was kept away from the work on account of dismissal. Admittedly, the respondent attained the age of retirement on 20.06.2012 and order terminating his services was passed only on 26.06.2012, which was rightly held to be ineffective. [Para 17] [244--F]
5. In the present case, as noted above, the respondent was not kept away from work by any order of the appellant. The order of termination of his services/dismissal was passed on 26.06.2012, after his retirement on 20.06.2012, which in no manner prohibited the respondent from working. The respondent during submission has submitted that he was illegally transferred to Branch Office, Jaunpur from Allahabad. He was suffering from a disability of more than 40% and he could not have been transferred to another place. There is nothing on record to indicate that transfer of respondent from Branch Office, Allahabad to Branch Office, Jaunpur was at any time set aside or withdrawn. The salary upto 14.05.2009 was allowed to the respondent on account of setting aside of the order dated 14.05.2009, which was with all consequential benefits but with regard to entitlement of salary after 14.05.2009 to 20.06.2012, there has been no adjudication by the High Court, which is apparent from judgment of the High Court dated 03.07.2018. [Para 22] [247-F-H; 248-A-B]
6. Single Judge having itself not determined the entitlement of respondent to receive salary after 14.05.2009 to 20.06.2012, it ought to have directed the appellant to consider the entitlement and take a decision thereon. This Court is of the view that ends of justice be served in setting aside the direction of the High Court directing the appellant 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 for back wages after 14.05.2009 to 20.06.2012 and pass appropriate orders. [Para 23] [248-B-C]
Deepali Gundu Surwase v. Kranti Junior Adhyapak Mhavidyalaya (D.Ed.) and Others (2013) 10
SCC 324 : [2013] 9 SCR 1 ; Airports Authority of India and Others v. Shambhu Nath Das alias S.N. Das (2008) 11 SCC 498 – relied on.
Shobha Ram Raturi v. Haryana Vidyut Prasaran Nigam Limited and Others (2016) 16 SCC 663 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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