REPORTABLE

IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5390 OF 2019 (arising out of SLP (C) No. 174 of 2019)

CHIEF REGIONAL MANAGER, UNITED  INDIA INSURANCE COMPANY LIMITED ...APPELLANT  

VERSUS

SIRAJ UDDIN KHAN  ...RESPONDENT  

J U D G M E N T

ASHOK BHUSHAN,J.

Leave granted.  

2. This  appeal  has  been  filed  challenging  the

judgment  dated  03.07.2018  of  Allahabad  High  Court,

partly allowing the writ petition of the respondent,

wherein direction has been issued by the High Court

for payment of arrears of salary and other benefits.

3. By our order dated 02.01.2019, limited notice was

issued to the question as to whether the respondent

was entitled for payment of salary after 14.05.2009

to 20.06.2012.  The respondent has filed a counter

affidavit and appeared in person when the matter was

heard on 01.07.2019.   

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4. We have heard Mr. P.P. Malhotra, learned senior

counsel  for  the  appellant  and  the  respondent

appearing in-person.   

5. The  brief  facts  of  the  case  necessary  to  be

noticed for deciding the limited issue as entertained

by this Court in this appeal are: -

5.1 The respondent was appointed by the appellant

company on the post of assistant/typist.  The

respondent  was  transferred  by  order  dated

18.08.2006 from  Allahabad  branch  of  the

company  to  Jaunpur  branch  in  pursuance  of

which  he  was  relieved  on  01.02.2007  from

Allahabad to join at Branch Office, Jaunpur.

The  respondent  did  not  join  and  was

unauthorizedly  absent  from  02.02.2007.   A

charge sheet dated 07.06.2007 was issued with

regard  to  his  unauthorised  absence  from

02.02.2007  to  07.06.2007,  for  which

disciplinary proceedings were initiated, Writ

petition No.11840 of 2008 was filed by the

respondent praying for expeditious disposal

of  the  departmental  inquiry  and  further

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direction  to  the  appellant  for  payment  of

salary w.e.f. 23.07.2007.     

5.2 Learned Single Judge of the High Court vide

its order dated 05.03.2008 disposed of the

writ  petition  directing  for  expeditious

disposal of the proceedings and with regard

to claim of the salary of the respondent,

direction was issued to consider and decide

the  representation  of  the  respondent  dated

11.11.2007.   The  disciplinary  proceedings

with regard to unauthorised absence resulted

in order dated 14.05.2009 of the disciplinary

authority  holding  the  respondent  guilty  of

charge of unauthorised absence and awarding

punishment of “reduction of basic pay by two

steps”  under  Rule  23(a)  of  the  General

Insurance  (Conduct,  Discipline  &  Appeal)

Rules, 1975.  The respondent filed an appeal,

which too was rejected.   

5.3 A  second  charge  sheet  was  issued  alleging

unauthorised  absence  of  663  days.   Charge

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sheet was sent to the respondent but he did

not  receive  the  same.   The  inquiry  was

conducted ex-parte.  The respondent, in the

meantime, attained the age of superannuation

on 20.06.2012.  An order dated 26.06.2012 was

passed  by  the  disciplinary  authority

terminating  his  services.  A  departmental

appeal against the order dated 26.06.2012 was

also dismissed on 18.07.2014. A Writ petition

No. 59041 of 2014 was filed by the respondent

praying  for  quashing  the  orders  dated

14.05.2009,  26.06.2012  and  18.07.2014.  The

learned  Single  Judge  decided  the  writ

petition  filed  by  the  respondent  vide  its

judgment dated 29.05.2015.  The order dated

26.06.2012 terminating his services was set

aside on two grounds, firstly, the inquiry

proceedings  are  vitiated  since  the  charge

sheet was never served upon the respondent

and secondly, the respondent having already

retired on 20.06.2012, he could not have been

terminated  on  26.06.2012.   Insofar  as  the

challenge  to  order  dated  14.05.2009  was

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concerned, awarding punishment of reduction

of basic pay by two steps, writ petition was

dismissed  on  the  ground  that  the  same  is

barred  by  laches  and  the  relief  to  that

extent was denied.   

5.4 The appellant aggrieved by the order of the

learned  Single  Judge  dated  29.05.2015  had

filed a Special Leave Petition (C) No.26395

of 2015, which was dismissed by this Court on

18.09.2015.  The  respondent,  aggrieved  by

order of learned Single Judge insofar as it

has dismissed the writ petition challenging

the order dated 14.05.2009, filed a special

appeal  before  Division  Bench  of  the  High

Court.   The  Division  Bench  proceeded  to

consider  the  challenge  to  the  order  dated

14.05.2009  and  allowed  the  special  appeal

setting  aside  the  order  rejecting  the

challenge to the order dated 14.05.2009. The

order dated 14.05.2009 was quashed and it was

held that appellant shall be entitled to all

consequential  benefits.   The  order  dated

15.02.2016 passed by the Division Bench in

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the special appeal was not challenged and has

become final.   

5.5 A  contempt  application  was  filed  by  the

respondent  being  Contempt  Application  No.

2680  of  2016  alleging  disobedience  of

judgment  of  learned  Single  Judge  dated

29.05.2015  as  well  as  contempt  of  the

Division Bench order dated 15.02.2016.   

5.6 The  respondent  filed  another  writ  petition

being Writ Petition No. 61102 of 2017 praying

for salary for the period from January, 2007

to  June,  2012  with  interest  and  all

consequential  benefits,  such  as,  promotion

arrears,  medical  bills,  lump  sum  medical

reimbursement  and  re-fixation  of  pension.

The  said  writ  petition  has  been  partly

allowed  by  impugned  judgment  dated

03.07.2018.   

5.7 The learned Single Judge held that the order

dated 14.05.2009 awarding punishment having

been set aside by Division Bench of the High

Court  by  order  dated  15.02.2016,  the

appellant  is  entitled  for  salary  w.e.f.

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02.02.2007 upto 14.05.2009.  The contention

regarding  non-payment  of  salary  by  the

appellant from 02.02.2007 to 20.06.2012 was

noticed in paragraph No.16 of the impugned

judgment,  to  the  effect  that  respondent

having  been  relieved  from  Branch  Office,

Allahabad by relieving order dated 01.02.2007

and he having not joined the Branch Office,

Jaunpur, he was not entitled for any salary.

Insofar  as  entitlement  of  salary  from

02.02.2007  to  14.05.2009  is  concerned

following directions were issued by learned

Single Judge in paragraph 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  the  punishment  order  dated 14.05.2009  and  directed  that  the appellant  shall  be  entitled  to consequential  reliefs.  This  Court having directed the petitioner to be given all consequential benefits and the order dated 14th of May, 2009 being quashed, the petitioner was  entitled  to  salary  w.e.f. 02.02.2007  up  to  14.05.2009,  the date,  the  punishment  order  was passed of reduction in basic pay by two stages. This payment of salary

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has apparently not been made by the respondent  on  the  ground  of  "No Work No Pay".

19. The petitioner is entitled to salary  w.e.f.  02.02.2007  up  to 14.05.2009 along with interest at the rate of 18 per cent per annum.”

5.8 With  regard  to  claim  of  salary  of  the

appellant  after  14.05.2009,  learned  Single

Judge  took  the  view  that  the  order  dated

26.06.2012 having been set aside by learned

Single  Judge  on  29.05.2015,  which  judgment

was unsuccessfully challenged in this Court

and  has  attained  finality,  hence  salary

w.e.f.  14.05.2009  to  20.06.2012  cannot  be

denied and direction was issued to pay salary

with  18%  interest.   With  regard  to  other

claims, the High Court noticed the payments

made  to  the  respondent  towards  provident

fund,  gratuity  fund,  GSLI  Claim,  Leave

Encashment  and  other  payments  totalling

Rs.25,73,830/-.   

5.9 There is no other issue in the present appeal

except direction for payment of salary after

14.05.2009 to 20.06.2012.                 

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6. Learned counsel for the appellant submits that

High Court committed error in directing for payment

of salary after 14.05.2009 to 20.06.2012, whereas the

respondent absented from work during the period and

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 by virtue of any order

terminating the services of the respondent, he could

not work.  With regard to salary after 14.05.2009

till  20.06.2012,  learned  Single  Judge  has  not

adjudicated the claim except observing that in view

of  the  judgment  of  High  Court  dated  29.05.2015

against which special leave petition was dismissed,

respondent was entitled for arrears of salary.  He

further submits that the fact that by virtue of the

judgment  of  learned  Single  Judge  dated  29.05.2015,

respondent  has  to  be  treated  in  service  does  not

automatically  result  in  any  direction  to  pay  the

salary, since no such direction was issued in the

judgment  of  learned  Single  Judge  dated  29.05.2015.

The payment of salary for the aforesaid period does

not automatically flow from the judgment of learned

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Single  Judge.   He  submits  that  the  fund  of  the

appellant company being public fund, the payment of

salary  cannot  be  made  when  the  respondent  kept

himself away from the work.  

7. The respondent appearing in person refuted the

submissions of the appellant and submits that he was

entitled for salary since his dismissal order dated

26.06.2012 was set aside on 29.05.2015, against which

special leave petition filed by the company had been

dismissed by this Court on 18.09.2015.  He submits

that he went to join the Branch Office at Allahabad

on 23.07.2007 but he was not permitted to take charge

by Branch Manager of Branch Office-1, Allahabad.  He

has placed reliance on the judgment of this Court in

Shobha Ram Raturi Vs. 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

Judge  has  rightly  directed  for  payment  of  salary

after 14.05.2009 to 20.06.2012.

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8. We have considered the submissions of the learned

counsel for the parties and have perused the records.

9. In Writ Petition No. 59041 of 2014, two set of

orders  were  challenged  namely  the  order  dated

14.05.2009, by which for unauthorised absence for the

period  02.02.2007  to  07.06.2007,  he  was  awarded

punishment of reduction of basic pay by two steps and

secondly, the order dated 26.06.2012 terminating his

services  and  order  dated  18.07.2014  dismissing  his

departmental appeal.  Learned Single Judge has set

aside the order dated 26.06.2012 vide its judgment

dated 29.05.2015 as noted above.  The learned Single

Judge quashed the order dated 26.06.2012 on following

two  grounds  –  one,  second  charge  sheet  alleging

unauthorised absence for 663 days was never served on

the  respondent  and  second,  the  respondent  having

retired  from  service  on  20.06.2012,  no  order

terminating his services could have been passed on

26.06.2012.  The relevant discussion and order of the

learned  Single  Judge  with  regard  to  order  dated

26.06.2012 is as follows:-

“There is nothing on record to show that the  chargesheet  was  ever  sought  to  be

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served  upon  the  petitioner  through registered post and it is not known as to from where this endorsement has come and to who wrote the remark “GHAR BAND RAHTA HAI” or “not met”. Even, if it is assumed that the  petitioner  was  not  at  his  house  and therefore  the  house  was  closed,  it  was expected of the respondents to have taken steps  to  notify  the  petitioner  about  the chargesheet  through  newspaper  publication. Nothing has been mentioned in the counter affidavit as to whether this procedure was adopted. Therefore, it is quite clear that the chargesheet was never served upon the petitioner  till  20.06.2012  and  thereafter the  order  of  removal  from  service  was passed on 26.06.2012. In this view of the matter,  the  petitioner  cannot  be  said  to have had notice of the enquiry proceedings and therefore if the respondents proceeded to hold enquiry ex parte, such proceedings are clearly vitiated and it must be held that  the  petitioner  has  been  denied reasonable  and  adequate  opportunity  of hearing.  

There is another aspect of the matter. The  petitioner's  case  is  that  he  retired from service on 20.06.2012 and the order of termination was passed on 26.06.2012. The averments  in  paragraph  39  of  the  counter affidavit are also to the effect that the petitioner retired from service and even on the date of retirement he had refused to accept the chargesheet and absconded from office. This being so once the petitioner retired from service on 20.06.2012 no order terminating  his  services  could  have  been passed 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 from

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service after he has already retired from service.  

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

The writ petition is allowed.”

10. As noted above, learned Single Judge dismissed

the writ petition insofar as order dated 14.05.2009

is concerned, challenge to which order stood accepted

by Division Bench in Special Appeal No. 87 of 2016,

where Division Bench has set aside the order dated

14.05.2009  and  directed  for  payment  with

consequential benefits.  In pursuance of the order of

the Division Bench dated 15.02.2016, the respondent

is  entitled  to  receive  salary  from  02.02.2007  to

14.05.2009  with  regard  to  which  we  have  not

entertained the appeal.   

11. Now, the issue, which has to be answered by us is

as to whether by setting aside of the order dated

26.06.2012, the respondent was automatically entitled

for back wages.  A perusal of the judgment of learned

Single Judge dated 29.05.2015 indicates that although

learned Single Judge has set aside the order dated 13

26.06.2012, but there was no order for payment of

back wages or consequential benefits.  Learned Single

Judge has set aside the order dated 26.06.2012 and

has left the matter there.  

12. It  is  further  relevant  to  notice  that  when

contempt  application  was  filed  by  the  respondent

being Contempt Application No. 2680 of 2016,  the

High  Court  observed  that  there  has  been  no

adjudication by the Writ Court on the question as to

whether  the  respondent  was  entitled  to  payment  of

salary for the period 2007 to 2012.  The observations

of the Contempt Court in last two paragraph is as

follows:-

“From the materials brought on record, it transpires that there is no adjudication by the writ court on the question as to whether  the  applicant  is  entitled  to payment of salary for the period 2007 to 2012,  particularly  as  he  had  not  worked during  that  period.  There  is  also  no adjudication  of  his  right  to  claim promotion or to receive medical bills. The issues therefore as are being raised by the applicant  in  this  petition  need  not  be entertained by this Court, at this stage. It  transpires  that  on  account  of  setting aside of the dismissal order the petitioner has been paid all his retiral dues.  

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

13. 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 learned

Single  Judge  was  required  to  adjudicate  on  the

entitlement  of  respondent  for  payment  of  salary.

Learned Single Judge has adjudicated with regard to

entitlement of salary from 02.02.2007 to 14.05.2009

and issued directions thereunder.  We may notice that

the  Division  Bench  while  setting  aside  the  order

dated  14.05.2009  has  directed  for  payment  of

consequential benefits.  It is useful to extract the

operative  portion  of  the  said  Appellate  Court

judgment dated 15.02.2016, which is to the following

effect:-

“We accordingly allow the special appeal. The  judgment  and  order  of  the  learned Single  Judge  dated  29  May,  2015  and  2 December,  2015  insofar  as  it  rejects  the challenge  laid  by  the  appellant  to  the order  dated  14  May,  2009  is  hereby  set aside.   Consequently,  the  order  dated  14

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May, 2009 is also quashed.  The appellant shall  be  entitled  to  all  consequential benefits.”

14. There is clear difference between the direction

of the High Court insofar as setting aside the order

dated 14.05.2009 is concerned and insofar as setting

aside  the  order  dated  26.06.2012  is  concerned,

whereas there is a clear direction for payment of

consequential reliefs while setting aside the order

dated 14.05.2009  there is no direction with regard

to payment of salary while setting aside the order

dated 26.06.2012, hence the question was required to

be gone into by learned Single Judge while deciding

the  Writ  Petition  No.61102  of  2017.   We  may  also

notice  the  consideration  of  learned  Single  Judge

while  noticing  the  claim  of  the  respondent  for

quashing  and  setting  aside  the  order  dated

26.06.2012.   In  paragraph  Nos.  20  and  21,  entire

discussion  regarding  setting  aside  the  order  dated

26.06.2012 is contained, which is to the following

effect:-

“20. With  regard  to  the  absence  of  the petitioner  thereafter,  the  petitioner  was subjected to disciplinary proceeding and a charge sheet was issued to him alleging the

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absence of 663 days. The inquiry proceeded ex-parte  against  him  and  ultimately  the dismissal order was passed on the ground of unauthorised  absence  on  26.06.2012.  The petitioner had in the meantime been retired on  20.06.2012  and  this  Court  in  its judgment and order dated 29.05.2015 in Writ -  A  No.  59041  of  2014  set  aside  the dismissal  order  and  the  appellate  order. This judgment of this Court was challenged by the respondent in Special Leave Petition which was dismissed on 18.09.2015 and the judgment  and  order  dated  29.05.2015 attained finality.  

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

15.  There  is  no  adjudication  regarding  claim  of

salary  or  back  wages  to  the  respondent  in  the

impugned  judgment  of  learned  Single  Judge  for  the

period  15.05.2009  to  20.06.2012.   Learned  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

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dismissal  was  set  aside,  he  will  be  automatically

entitled for back wages.   

16. We may notice some of the judgments of this Court

where issue of back wages has been considered by this

Court.   This  Court  in  Deepali  Gundu  Surwase  Vs.

Kranti  Junior  Adhyapak  Mhavidyalaya  (D.Ed.)  And

Others,  (2013)  10  SCC  324  was  considering  a  case

where the question was considered as to whether the

appellant was entitled to wages for the period she

was kept out of service 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  which  he  held  before dismissal  or  removal  or  termination  of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise  terminated  from  service  cannot easily be measured in terms of money. With the  passing  of  an  order  which  has  the effect  of  severing  the  employer-employee relationship, the latter’s source of income gets  dried  up.  Not  only  the  employee concerned,  but  his  entire  family  suffers grave adversities. They are deprived of the source  of  sustenance.  The  children  are deprived  of  nutritious  food  and  all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance

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to  avoid  starvation.  These  sufferings continue  till  the  competent  adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding  of  the  competent  judicial/quasi- judicial  body  or  court  that  the  action taken by the employer is ultra vires the relevant  statutory  provisions  or  the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential  benefits,  then  it  is  for him/her  to  specifically  plead  and  prove that  during  the  intervening  period  the employee  was  gainfully  employed  and  was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned  and  rewarding  the  employer  by relieving him of the obligation to pay back wages including the emoluments.”

17.  We may hasten to add that present 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.

18. We may notice another judgment of this Court in

Airports Authority of India and Others Vs. Shambhu

Nath Das alias S.N. Das, (2008) 11 SCC 498.  In the

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above case, the respondent did not join after expiry

of the leave.  The respondent was issued a warning

that unless he joins on or before 30.10.1985, failing

which it would be presumed that he had voluntarily

abandoned his service with the consequence that his

name would be struck off the rolls with effect from

01.11.1985.  The said order was challenged by the

respondent  and  learned  Sigle  Judge  on  10.11.1995

directed the Airports Authority of India to allow the

respondent to join duty but it was held that he shall

not be entitled for the arrears of pay for the period

he was absent.  The order of learned Single Judge was

again challenged by the respondent without joining.

The Division Bench set aside the order of the learned

Single  Judge  and  remanded  the  matter  back  to  the

learned Single Judge.  Learned Single Judge directed

the appellant to reinstate the respondent and further

directed  that  insofar  as  the  salary  of  the  writ

petitioner is concerned, during the period he stayed

away from the work, Airports Authority of India, is

directed to consider the matter sympathetically and,

if it is permissible under its rules, allow to him

half  of  the  salary  and  other  benefits  during  the

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period from 17.10.1985 till 10.11.1995.  The Airports

Authority of India accepted the judgment and allowed

him to join w.e.f. 01.11.1999 and passed an order on

14.05.2002  holding  that  the  period  of  unauthorised

absence was to be treated as dies-non and the claim

for  back  wages  was  accordingly  disallowed  on  the

principle  of  "no  work  no  pay".  The  order  dated

14.05.2002  was  once  again  challenged  by  the

respondent claiming back wages, which was allowed by

the  learned  Single  Judge.   On  further  denial  of

claim,  matter  was  taken  by  respondent  to  learned

Single Judge to issue certain directions. Against the

learned  Single  Judge’s  Order,  matter  was  taken  in

appeal before Division Bench, where direction to pay

50% of back wages was issued.  Allowing the appeal,

this Court stated following in paragraph Nos. 8 to

11:-  

“8. This order of the learned Single Judge has been set aside by the Division Bench vide  the  impugned  order  dated  21-3-2007 with the observations that the order of the High Court in CR (W) No. 5715 of 1986 which had  directed  that  the  respondent  be  paid 50% of the back wages for the period from 17-10-1985 to 10-11-1995 should be complied with.

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9. The  learned  counsel  for  the  appellant has pointed out that as the respondent had not attended to his duties for almost 15 years despite having been called upon to do so  repeatedly,  the  direction  of  the Division Bench to grant him back wages from 17-10-1985  to  10-11-1995  was  clearly  not justified on the principle of “no work no pay”.  She  has  pointed  out  that  the appellant Authority would have been fully justified  even  if  it  had  dismissed  the respondent  from  service,  but  on  the contrary, a huge benefit had already been given to him as he had been taken back in service despite having remained absent for almost fifteen years.

10. The learned counsel for the respondent has, however, supported the judgment of the Division Bench. We are of the opinion that in  the  light  of  the  fact  that  the respondent did not report for duty for 15 years,  there  was  no  justification whatsoever to grant him any back wages on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification.  We  also  find  that  the judgment dated 13-8-1999 which had attained finality had directed as under:

“(a)  Insofar  as  the  salary  of  the writ petitioner is concerned during the period he stayed away from the work,  the  respondent  Airports Authority  of  India,  is  directed  to consider  the  matter  sympathetically and, if it is permissible under its rules,  allow  to  him  half  of  the salary and other benefits.”

11. This  claim  was  considered  by  the competent authority and rejected for valid reasons.  We  are,  thus,  unable  to  endorse the High Court’s order for payment of 50%

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back wages for the period from 17-10-1985 to 10-11-1995 which are far in excess of the  directions  in  the  order  dated  13-8- 1999. We accordingly allow this appeal, set aside the order of the Division Bench and restore  the  order  of  the  learned  Single Judge dated 15-4-2004.”

19. This Court held that there was no justification

whatsoever to grant any back wages to the respondent

on  the  general  principle  that  nobody  could  be

directed  to  claim  wages  for  the  period  that  he

remained  absent  without  leave  or  without

justification.  

20. We may further notice the judgment of this Court,

which has also been relied on by the respondent in

his counter affidavit, i.e., judgment of this Court

in  Shobha  Ram  Raturi  Vs.  Haryana  Vidyut  Prasaran

Nigam Limited and Others (supra).  In the above case,

the appellant was retired from service on 31.12.2002,

even though he would have, in the ordinary course,

attained  his  date  of  retirement  on  superannuation,

only on 31.12.2005. The appellant assailed the order

of retirement, which was allowed by learned Single

Judge.   Learned  Single  Judge  has  denied  the  back

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wages to the appellant on the principle of “no work

no  pay”.   The  order  of  learned  Single  Judge  was

assailed by the appellant by filing a Letters Patent

Appeal, which too was dismissed.  This Court allowed

the  appeal  of  the  appellant  and  made  following

observations 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 dated 31-12-2002 was set aside, the  appellant  was  entitled  to  all consequential benefits. The fault lies with the respondents in not having utilised the services  of  the  appellant  for  the  period from  1-1-2003  to  31-12-2005.  Had  the appellant  been  allowed  to  continue  in service, he would have readily discharged his  duties.  Having  restrained  him  from rendering his services with effect from 1- 1-2003 to 31-12-2005, the respondent cannot be allowed to press the self-serving plea of  denying  him  wages  for  the  period  in question, on the plea of the principle of “no work no pay”.

4. For the reasons recorded hereinabove, we are  satisfied,  that  the  impugned  order passed by the High Court, to the limited extent of denying wages to the appellant, for the period from 1-1-2003 to 31-12-2005 deserves  to  be  set  aside.  The  same  is accordingly hereby set aside.”

21. This Court held in the above case that; having

restrained the appellant from rendering his services

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with  effect  from  1-1-2003  to  31-12-2005,  the

respondent cannot be allowed to press the plea of the

principle of “no work no pay” for denying the wages.

In the above case, the appellant was restrained from

working due to order of retirement dated 31.12.2002,

due  to  which  he  could  not  work  till  his  normal

retirement.  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 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

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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, as

extracted above.  

23. Learned 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.  We are 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  giving

reasons within three months from today.  It shall

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also  be  open  for  the  respondent  to  submit  an

appropriate  representation  alongwith  relevant

materials  regarding  his  entitlement  for  salary  for

the period 15.05.2009 to 20.06.2012 to the appellant

within a period of one month from today.   

24. The appeal is partly allowed to the extent as

indicated above.  The parties shall bear their own

costs.  

......................J.                              (ASHOK BHUSHAN)

......................J.                              (NAVIN SINHA)

New Delhi,  July 11, 2019.   

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