Dr. Sambuddha Chakrabarti, J.@mdashThis appeal is directed against a part of the judgement and order passed by a learned Single Judge of this
court on August 1, 2013 in W.P. No. 506 of 2013.
2. The appellant was the writ petitioner. The facts leading to the filing of the writ petition may be summed up very briefly.
3. The appellant was appointed as a Heavy Vehicle Driver of the Forest Plantation Development Corporation (Corporation, for short) on January
6, 1993. He was on probation for a period of two years and this period was subsequently extended from time to time. During the period of
probation he made a wrong declaration in his attestation form that no criminal case was pending against him. This declaration having been found to
be incorrect his service was terminated.
4. The appellant raised an industrial dispute which was referred to the Labour Court for adjudication of the issue whether the action on the part of
the Corporation in terminating the service of the appellant was legal and justified. The presiding officer of the Labour Court by the Award, dated
January 9, 2012, held the termination of the service of the present appellant to be valid.
5. The appellant challenged the said Award in the writ petition mentioned above.
6. A learned Single Judge of this Court had disposed of the writ petition setting aside and quashing of the said Award. The concerned authority
was directed to reinstate the petitioner in service immediately within two weeks from the date of communication of the order. The learned Single
Judge, however, made it clear that the employer was not required to pay any pay and allowances to the appellant for the period during which he
could not render any service due to his termination.
7. The appellant is aggrieved by the last direction of the learned Single Judge and has filed the present appeal praying for backwages.
8. The order of the learned Single Judge was also challenged by the Corporation by a separate appeal and a Division Bench of this Court by a
judgement and order, dated September 18, 2013 had dismissed the appeal as well as the connected application.
9. In the present appeal, the appellant''s contention is that since termination of the petitioner was found to be illegal he is entitled to back wages and
the learned Single Judge by declaring that the employer would not be required to pay the back wages for the period during which the appellant
could not render any service to the employer, had really deprived him of the financial benefit which he is otherwise entitled to. According to the
appellant, he was prevented from rendering any service after his termination for no fault of his.
10. Mr. Gopala Binnu Kumar, the learned advocate for the appellant, submitted that the learned Trial Judge had directed reinstatement of the
appellant in service only because he had found termination to be invalid and improper. Such being the finding, the appellant cannot be denied the
wages for the period during which he was illegally kept out of employment.
11. In support of his contention, the appellant has relied on the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.
Ed.) and Others, , for a proposition that reinstatement entitles an employee to claim full back wages and denial of it would amount to indirectly
punishing the employee and rewarding the employer by relieving him of the obligation to pay back wages.
12. This appeal has been very seriously contested by Ms. Tasneem, the learned advocate for the respondents. According to her, the appellant had
knowingly made a misstatement in the attestation form by declaring that no criminal case was pending against him. Verification from the police
authority revealed that as many as seven cases were pending against him on the day and in one of them he even pleaded guilty. Having made
deliberately a wrong declaration, the appellant cannot now go behind his illiteracy as an excuse for the same. Ms. Tasneem has drawn my attention
to the fact that it was specifically mentioned in the form that the misstatement would made the declarant liable to be dismissed from service. She
prayed for dismissal of the appeal.
13. I have heard the learned advocates for the parties and have given my anxious consideration to the issues involved in the case.
14. The principle on which back wages are allowed when an order of reinstatement of a terminated employee is passed is that an employee who is
illegally terminated was not at fault. When a termination order is found to have been made in violation of law the entire responsibility for passing
such an order is to be borne by the employer. An employee is always at the receiving end of the unsustainable steps taken by the employer. If an
employer passes an illegal order of termination and deprives an employee of his pay and allowances, it is for him to pay back the same to such an
employee if he is reinstated upon a declaration by a Court that the initial order of termination was bad.
15. I am afraid, such is not the case here. That the appellant made a wrong declaration is an admitted fact. It just cannot be that when seven cases
were pending against a person, no matter at whose instance they were initiated, it is next to impossible to believe that he would not be aware of
any one of them. His defence of illiteracy is too feeble and weak to be seriously reckoned with. I have no manner of doubt that the appellant
positively made a misstatement.
16. Such is also finding of the learned Trial Judge. Notwithstanding the fact that the Award of the Labour Court was set aside and quashed, this
Court was alive to the fact that the petitioner was not right in making the wrong statement and that is the reason why the learned single Judge had
specifically disapproved of the wrong which the appellant committed by declaring that no criminal case was pending against him in the attestation
form. The Award was set aside for very different reasons viz. failure on the part of employer to prove that the appellant was punished in any of the
criminal cases pending against him, impropriety on the part of the employer to appoint the appellant when he knew that criminal cases were
pending against him, etc. The learned single Judge has also taken several other aspects into consideration: his employment with the respondent
Corporation since 1978, their presumed knowledge of the appellant''s antecedent etc. The learned single judge never held that there was no
misconduct on the part of the appellant or the respondent corporation had acted without jurisdiction in invoking the clause relating to the
consequence of making a wrong declaration in the attestation form.
17. Obviously it was for this suppression of a vital information that this court while directing the reinstatement of the appellant specifically clarified
that the employer would not be required to pay any pay and allowances for the period during which he was out of employment of the Corporation.
It is not a case that the learned Single Judge omitted to pass any order of back wages in favour of appellant. On the contrary it is a case where the
learned Single Judge had specifically denied the back wages to the appellant.
18. The question relating to the grant of back wages along with re-instatement came for consideration in numerous judicial proceedings over a very
long period of time. A three-Judge Bench of the Supreme Court in the case of Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan
Tin Works Pvt. Ltd. and Others, , had held that ordinarily a workman whose service has been illegally terminated would be entitled to full back
wages except of the extent he was gainfully employed during the enforced idleness. This is the general law which still holds the field. But it is an
altogether different question when an employer terminates the service of an employee for any fault on the part of the latter. Must he still have the
right to claim back wages if he is directed to be reinstated in service for any reason other than with a finding of no-fault on his part?
19. The judgement in the case of The Depot Manager A.P.S.R.T.C. Vs. P. Jayaram Reddy, , has similarity with the facts in the present case. In
that case the respondent was terminated from service for suppressing the fact of earlier dismissal from service. The Labour Court found the
punishment to be disproportionate and ordered re-instatement, but without back wages. The Supreme Court held that it was one thing to say that
the respondent had no duty to furnish information about earlier termination from service. But it is another thing to say that the order of appointment
was passed in ignorance of the fact that his services had been terminated on charges of grave misconduct. The Supreme Court did not allow back
wages to the respondent.
20. The judgment relied on by the appellant is clearly distinguishable from the facts of the present case. It will not be fair to apply the ratio of the
judgement without reference to the facts of that particular case. Although sounds a bit of a cliche it is worth reminding ourselves an age old adage
that a decision is after all an authority on what it decides and not what may be inferentially deduced therefrom. While summarising the propositions
which could be culled out from the various judgment cited before the Supreme Court, the Court observed that while deciding the issue of back
wages the adjudicating authority or the Court may take into consideration, amongst others, the nature of misconduct committed by the employee.
The Supreme Court further held that in cases where the competent court finds that the employer had acted in gross violation of the statutory
provisions and or the principles of natural justice or was guilty of victimizing the employee, the Court would be fully justified in directing payment of
full back wages.
21. If the said principle is kept in mind and applied to the facts of the present case the appellant is clearly not entitled to claim any back wages
regard being had to the nature of misconduct committed by him. This is also not a case where the employer can be blamed to have acted in
violation of the statutory provisions or principles of natural justice.
22. That apart, there is major factual distinction between the case cited by the appellant and the present one. The Supreme Court had specifically
found that the action of the management in the cited case was without any rhyme and reason. In that case the Tribunal came to finding that the
action of the management was wholly arbitrary and vitiated due to violation of the rules of natural justice. The Supreme Court approved that this
finding and held that the charges levelled against the appellant in that case were frivolous and the enquiry that was conducted against her was in
gross violation of the rules of natural justice. It was in this factual context the Supreme Court directed payment of the full back wages to the
reinstated employee. The same, however, cannot be held in this case. It cannot be said that the management had illegally terminated his service or
while doing so the Corporation acted contrary to the principles of natural justice or any other provision of law. Mere reinstatement without anything
more does not necessarily lead to any unimpeachable inference that the action of the respondent is bad or blameworthy.
23. The learned Single Judge himself had not approved the wrong committed by the appellant in making the false declaration and did not allow
back wages in his favaour.
24. I find no infirmity or impropriety in that part order which has been assailed in the present appeal. The learned Single Judge very correctly
declined back wages to the appellant.
25. The appeal is without any merit and is thus dismissed.
26. There shall, however, no order as to costs.
27. Urgent certified copy of this order be supplied, if applied for, to the learned advocates for the respective parties upon compliance of usual
formalities.
Indira Banerjee, J.
I agree.
