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REPORTABLE        

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   6119    OF 2016 (Arising out of Special Leave Petition (C) No. 34225 of 2013)

Mulin Sharma                       .... Appellant (s)

Versus

State of Assam and Others.       .... Respondent(s)

J U D G M E N T  

R.K. Agrawal, J.

1) Leave granted.

2) This  appeal  is  directed against  the final  judgment and

order dated 25.07.2012 passed by the Gauhati High Court at

Gauhati  in  Writ  Appeal  Nos.  14  of  2010  and  226  of  2009

whereby the Division Bench of the High Court partly allowed

Writ  Appeal  No.  14  of  2010  filed  by  the  appellant  herein

against the judgment and order dated 19.01.2007 passed by

the learned single Judge of the High Court in Writ Petition No.

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2357 of 2004 and dismissed the Writ Appeal No. 226 of 2009

filed by the respondents herein.   

3) Brief facts:

(a) Mulin Sharma-the appellant herein, an M.A. in Sanskrit,

was employed as an Assistant Teacher (Classical/Sanskrit) in

the Rangsina High School, Karbi, Anglong District, Assam in

the year 1995. The school was provincialized in the year 1996

as also the services of the appellant herein against the allotted

post of Assistant Teacher.    

(b) Owing  to  certain  differences  with  the  Headmistress

(Respondent No. 5 herein) of the School,  who incidentally is

the  wife  of  Respondent  No.  6 herein,  who is  also  the  Head

Master of the M.E. Section of the said school, the appellant

herein  was  forced  to  sign  the  resignation  letter  under

compulsion,  force  and  criminal  intimidation  by  Respondent

No. 6 and his men on 22.05.1998 and he was not paid his

salary from 23.05.1998.

(c) Making  a  grievance  against  such  forcible  obtaining  of

resignation letter and signature therein, the appellant herein

submitted a series of representations to various authorities to

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take action in the matter.  When the appellant herein did not

get any response in respect of his grievance relating to forceful

obtaining of letter of resignation, he filed a Writ Petition being

No. 4047 of 1999 before the High Court.  Learned single Judge

of the High Court, by order dated 16.08.1999, directed as an

interim measure that if the appellant is working in the school

in question as on today, he shall be allowed to continue.  

(d) The writ petition was disposed of by the High Court by

order  dated  14.07.2003  with  a  direction  that  the  appellant

herein  and  Respondent  Nos.  4  and  5  herein  shall  appear

before  the  learned  Deputy  Commissioner,  Karbi  Anglong,

Diphu.   The  Deputy  Commissioner  was  further  directed  to

determine  the  facts  and  circumstances  under  which  the

resignation  letter  came  to  be  issued  and  signed  by  giving

opportunity to both the sides.  

(e) The Deputy Commissioner, Karbi Anglong, Diphu, after

conducting  an  enquiry  and  also  after  affording  reasonable

opportunity to both the sides, by order dated 16.10.2003, held

that  the  resignation  tendered  by  the  appellant  herein  was

voluntary and that in terms of the order dated 14.07.2003, the

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competent authority will have to accept the resignation of the

appellant herein afresh.

(f) After the Order so passed by the Deputy Commissioner,

the Deputy Secretary, Education Department (Higher), Karbi

Anglong Autonomous Council (KAAC) passed an order dated

12.01.2004 accepting the resignation of the appellant herein

with effect from 16.10.2003, i.e., the date of the order passed

by  the  Deputy  Commissioner,  with  the  stipulation  that  the

appellant herein would not be entitled to any financial benefits

w.e.f. 22.05.1998 since according to the said authority, he did

not attend his duties from 22.05.1998.

(g) Another  consequential  order  dated  27.01.2004  was

issued by the office of the Inspector of Schools, Karbi Anglong

District Circle, Diphu stating that the resignation letter dated

22.05.1998 tendered by Shri Mulin Sharma, Classical Teacher

at  Rangsina  High  School  is  hereby  accepted  without  any

financial  benefit  with  effect  from  22.05.1998  since  the

incumbent concerned did not attend his duties.

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(h) Being aggrieved by the order dated 16.10.2003 passed by

the  Deputy  Commissioner,  the  appellant  herein  preferred  a

Writ Petition being No. 2357 of 2004 before the High Court.

Learned  single  Judge  of  the  High  Court,  by  order  dated

19.01.2007,  partly  allowed  the  petition  by  holding  that  the

resignation was not voluntary without passing any direction

on the back wages.

(i) Being  aggrieved  by  the  order  dated  19.01.2007 to  the

extent of back wages for the period 23.05.1998 to 16.08.1999,

the  appellant  herein  preferred  Writ  Appeal  being  No.  14  of

2010  before  the  High  Court.  The  respondents  herein  also

preferred Writ Appeal No. 226 of 2009 before the High Court

against the aforesaid order.

(j) The  Division  Bench  of  the  High  Court,  by  common

judgment and order dated 25.07.2012 denied back wages to

the appellant herein while granting a sum of Rs. 25,000/- for

wrongful denial of his employment during the abovesaid period

in  question.   Writ  Appeal  No.  226  of  2009  was,  however,

dismissed by the Division Bench.

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(k) Aggrieved by the order dated 25.07.2012, the appellant

herein has preferred this petition by way of special leave before

this Court.

4) Heard learned counsel for the parties.

5) In the facts and circumstances of the present case, it is

undisputed  that  the  resignation  tendered  by  the  appellant

herein on 22.05.1998 was not voluntary and the courts below

have categorically held that the appellant herein is not entitled

to  back wages in the absence of  any material  on record to

show that  he remained unemployed during the said period.

Now, the question that arises for consideration is whether the

courts below erred in not granting back wages to the appellant

herein or whether the appellant has made out a case for grant

of back wages for the period 23.05.1998 to 16.08.1999.

6) Learned  single  Judge  of  the  High  Court  while  holding

that  the  resignation  was  not  voluntary,  reinstated  the

appellant  herein  in  service  but  denied  him  back  wages.

Learned counsel for the appellant contended before this Court

that  the  respondents  did  not  allow  the  appellant  herein  to

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perform his duties in the school.  In fact, the very same thing

was  raised  before  the  learned  single  Judge  that  the

respondents did not  allow the entry of  the appellant  herein

into the School.  The appellant herein signed the resignation

letter  under  compulsion,  criminal  intimidation  and  force

applied by the respondents on to him at their residence and

forcefully they deprived him from entering into the school.

7) The  fact  remains  that  the  appellant  herein  did  not

perform his duties in the School at the behest of respondents.

Similarly,  the  fact  of  he  being  unemployed  throughout  the

period was not  proved;  no material  evidence was placed on

record for the same.  In that case, learned single Judge of the

High Court was having only the remedy of reinstatement of the

appellant  herein  in  the  service  and  he  ordered  so  after

carefully examining that the resignation was not voluntary.

8) The  High  Court,  on  the  other  hand,  dealt  with  the

question of back wages left open by learned single Judge as

well as the appeal filed by the respondents herein.  The High

Court,  on  a  correct  appreciation  of  evidence  on  record,

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dismissed the appeal filed by the respondents herein holding

that  the  resignation  was  not  voluntary.   Though  the  High

Court did not grant back wages to the appellant herein, a sum

of  Rs.  25,000/-  was  granted  for  wrongful  denial  of  his

employment.

9) We are fully satisfied that in the facts and circumstances

of the case, back wages should not have been awarded to the

appellant  herein.  In several  cases,  this  Court has held that

payment of back wages is a discretionary power which has to

be  exercised  by  a  court  keeping  in  view  the  facts  in  their

entirety and neither straitjacket formula can be evolved nor a

rule of universal application can be laid down in such cases.

Thus, reinstatement does not necessarily result in payment of

back  wages  which  would  be  independent  of  reinstatement.

While dealing with the prayer of back wages, factual scenario

and the principles of justice, equity and good conscience have

to be kept in view by an appropriate court.

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10) In C.N. Malla vs. State of Jammu and Kashmir &  

Ors. (2009) 9 SCC 597, this Court has held as under:-

“11. The  legal  position  is  fairly  settled  by  a  catena  of decisions that direction to pay back wages in its entirety is not  automatic  consequent  upon  declaration  of  dismissal order bad in law. The concept of discretion is inbuilt in such exercise.  The  court  is  required  to  exercise  discretion reasonably  and  judiciously  keeping  in  view  the  facts  and circumstances  of  the  case.  Each  case,  of  course,  would depend on its own facts.”

11) In  view  of  the  foregoing  discussion,  we  are  of  the

considered opinion that the concurrent finding of the courts

below that the appellant herein is not entitled to back wages in

the  absence  of  any  material  on  record  that  he  remained

unemployed  during  the  entire  period  from  23.05.1998  to

16.08.1999 is correct.  Even learned counsel for the appellant

herein has admitted before this Court that he was not allowed

to  perform  his  duties  after  obtaining  his  signature  on

22.05.1998.

12) In the present facts and circumstances of the case, the

appellant has not produced any material on record to prove

that  he  being  unemployed  during  that  period  and  has  not

made out  a  case  for  grant  of  back wages  for  the  aforesaid

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period.  The appellant herein did not attend the school during

that period and back wages cannot be granted to him for that

period.  He, however, should be reinstated in service and be

given  all  other  consequential  benefits.   Though  he  is  not

entitled to back wages, he is certainly entitled to an amount of

Rs. 25,000/-, in addition to the amount granted by the High

Court, for wrongful denial of service.

13) In view of the above, the appeal is disposed of with the

above terms.

...…………….…………………………J.            (J. CHELAMESWAR)                                  

 .….....…………………………………J.    (R.K. AGRAWAL)                          

NEW DELHI; JULY 12, 2016.  

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