1. This intra court appeal have been filed by the Union of India through Director General Railway Protection Force, Rail Bhawan, New Delhi and the officers of North Eastern Railway against the judgment and order dated 4.3.2016 passed in Civil Misc. Writ Petition No.9762 of 1985 (Hari Shanker Pandey v. Union of India.
2. From a perusal of the record and the findings returned by the learned Single Judge, it is reflected that the learned Single Judge has carefully gone through the entire material evidence which form part of the inquiry proceedings and placed before the Disciplinary, Appellate as well as the Revisional Authorities.
3. A categorical finding have been recorded that the appellants could not bring material evidence on record to bring home the charge of guilt against the delinquent employee. The finding of guilt returned by the Disciplinary Authority and affirmed by the Appellate as well as Revisional Authorities are based on no evidence. The disciplinary proceedings do not inspire confidence of this Court inasmuch as the petitioner was not supplied relevant material relating to criminal proceedings launched against him which could provide the details of involvement of respondent No.6, who lodged criminal complaint against the petitioner of theft on the allegation of having visited the petitioner''s house and found the stolen property. Non-supply of relevant documents had taken away the right of the petitioner to defend. Further, there was no independent witness to show that the alleged stolen property had been recovered from the house of the petitioner.
4. In view of the conclusion so arrived at by the learned Single Judge, we see no reason to interfere in the decision taken by the learned Single Judge to set aside the termination order.
5. Sri A.K. Gaur, assisted by Sri Satya Prakash Mishra, learned counsels for the parties, however, contended before us that the learned Single Judge erred in re-appreciation of evidence and arrive at a different conclusion from that have been arrived at by the Disciplinary and Revisional Authorities. In support of this contention, he has placed reliance upon the judgment of the Apex Court in the case of B.C. Chaturvedi v. Union of India & Ors. 1996 Supreme Court Cases (L&S) 80.
6. He further contends that in the facts and circumstances of the case, the employee had actually not worked between 1983 till the date of judgment of this Court i.e. 4.3.2016 and in the meantime, he had attained the age of superannuation. Since the petitioner had not worked during the long period of 29 years, the direction given by the learned Single Judge to pay him entire salary is not justified having regard to the principle of "No Work No Pay".
7. Reliance is placed upon the judgment of Apex Court in the case of Defence Research Education Society v. Neeta Tuteja reported in JT 2014 (14) SC 210 and in the case of Fisheries Department, State of Uttar Pradesh v. Charan Singh reported in (2015) 8 SCC 150 to submit that full back wages cannot be awarded in the facts and circumstances of the present case.
8. Sri Rakesh Pandey, learned counsel for the respondents on the other hand submits that the findings recorded by the learned Single Judge are based on the entire material evidence which was placed before the Writ Court. There is no question of re-appreciation of evidence as there was no material evidence at all before the Disciplinary Authority to bring home the charge of theft against the petitioner. The respondent-employee had illegally been restrained from working because of the illegal termination order passed by the Disciplinary Authority. The employers cannot be permitted to take benefit of their own wrong and thereby deny full salary to the employee who has illegally been restrained from working.
9. In support of his submission, he has placed reliance upon the judgment of Apex Court in the case of Fisheries Department (supra) and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Others reported in (2013) 10 Supreme Court Cases 324.
10. Heard learned counsel for the parties and perused the record.
It is no doubt true that in exercise of powers of judicial review under Article 226 of the Constitution of India, this Court would not interfere with the findings of fact based on evidence by reappraisal the evidence to arrive at its own conclusion. The legal position in this regard has been laid at rest by the Apex Court in the case of B.C. Chatuvedi (supra).
11. It is, however, well-settled legal position that if the findings are based on no evidence and perverse, the Writ Court cannot keep its hands off and is not precluded from interfering to that extent to upset such finding.
12. Having carefully gone through the record, we are of the considered view that the finding of guilt returned in the facts of the present case is perverse and reflects complete non application of mind to the material as was disclosed in the Inquiry Report.
13. The findings returned by the learned Single Judge are within the four corners of settled principles of judicial review. We are in respectful agreement with the conclusion drawn by the learned Single Judge and see no reason to interfere in the judgment and order dated 4.3.2016 holding that the order of punishment is unsustainable for want of evidence.
14. Now the question remains as to whether the respondent employee would be entitled to full salary for the period of his termination i.e. from 1983 till the date of superannuation as well as other benefits as a result of setting aside the illegal order of dismissal.
15. The Apex Court in the case of Deepali Gundu Surwase (supra) has laid down the legal proposition in paragraph 38 of the judgment in this regard.
It is held that in case of wrongful termination of service, reinstatement with continuity of service and back-wages is the normal rule. However, the adjudicating authority or the Court may take into consideration other relevant factors such as length of service of the employee, nature of misconduct, if any, found proved against him, the financial condition of the employer etc. If the employer wants to avoid payment of full back wages then it has to plead and also give evidence to prove that the employee was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of his/her service. The same principle has been reiterated in Fisheries Department (supra) wherein it has been held that the principle of "No Work No Pay" does not have any significance to the factual situation of a case of illegal termination by the employer. It was found in the said case that the workman had rendered considerable length of service and his services were wrongly terminated.
16. It have been held that if workman is kept out of service due to the fault or mistake of the employer he was working with, then the workman is entitled to full back-wages for the period he was illegally kept out of service.
17. In the light of the above referred legal position settled by the Apex Court considering the facts and circumstances of the present case, we find that there is no pleading with regard to the gainful employment of the employee during the period he was kept away as a consequence of illegal termination order.
We are, therefore, of the opinion that the respondent employee was rightly held to be entitled to full salary and terminal benefits.
For the reasons noted above, we do not find any merit in the appeal.
18. The appeal is dismissed.
