@JUDGMENTTAG-ORDER
Jayanandan Singh, J.@mdashThough these two writ applications were heard on different dates, but are being dealt with and disposed of together by a common order because of the reason that the cases are common and identical. Since the order is common, petitioners of the cases hereinafter shall be referred to as petitioner No. 1 and petitioner No. 2, as and when necessary. The two petitioners were in the service of respondents as constables and on 6.6.2002 were posted as guard in Mishrapur Police Camp under Bath police station of Bhagalpur district. The case against them, in short, is that at about 10.00 in the night both of them, along with two Sub-Inspectors, namely, Ramagya Chaudhary and Nawal Kishore Singh, on two motorcycles, went out from the police station through Belari Camp towards Mishrapur Camp and then proceeded further went beyond the territorial jurisdiction of the police station. There at about 2.00 in the night Sub-Inspector Nawal Kishore Singh, with the means of a country made pistol, shot dead Sub-Inspector Ramagya Chaudhary. Though the two petitioners were present there, but they concealed this and suppressed the true facts due to which the investigation and enquiry was hampered. Hence the petitioners were found to have indulged into indiscipline, dereliction of duty, carelessness, etc., and therefore they were suspended. Thereafter separate charges were framed and served upon them and disciplinary proceedings were initiated. Enquiry was held and report was submitted, finding the charges proved. Accordingly, 2nd show cause notice was issued to them and, after considering their reply, they were dismissed from service by separate orders of the Superintendent of Police, Bhagalpur. Petitioners, after exhausting remedies of appeal and memorial, moved this Court in CWJC No. 17483 of 2008 and 17860 of 2008 respectively. Their writ applications were disposed of, by a common order dated 28.1.2013, vide Annexures-3 and 10 respectively with the present writ applications, and, orders passed in their cases on their memorials and appeals, were quashed and the matter was remitted back to the Appellate Authority, i.e., the D.I.G., Bhagalpur, to consider their appeals afresh in the light of the observations therein as well as in the light of settled principles of law, after considering the materials produced by them in support of their pleadings. It was observed that "If the claims of the petitioners were affirmed and the orders of the disciplinary authority are set aside, the appellate authority shall also consider reinstating the petitioners back in service with full salary and other admissible allowances for the period he was kept out of service from the date of their dismissals." After this order was received by the respondent D.I.G., Bhagalpur, notices were issued to the petitioners, they were heard and orders were passed on their appeals and communicated to them by letter dated 14.5.2013, vide Annexures-9 and 11 respectively with their writ applications.
2. From the order of the D.I.G. dated 14.5.2013 it appears that, after analysis of facts, the D.I.G. found that though in the criminal trial the trial court had found that in the incident the petitioners had no role to play, but this was not controverted that even though the petitioners had the knowledge of the fact of murder of Sub-Inspector Ramagya Chaudhary by Sub-Inspector Nawal Kishore Singh, they have practiced falsehood hampering the investigation for which also they had been found guilty in the proceeding. He thus found that for this part of the charge the trial court had not given any finding. In the circumstances, the D.I.G. found that the order of dismissal of petitioners was not proportionate to this part of the finding of guilt in the proceeding. Therefore, he set aside the order of their dismissal and passed order of punishment of withholding of their one increment without cumulative effect with their reinstatement in service. However, he denied them payment of salary and allowances of the period between their dismissal and their reinstatement on the principle of "no work no pay" which period was, otherwise, directed to be adjusted against their admissible extraordinary leave. This common order passed by the D.I.G. in the case of both the petitioners has been separately challenged by the petitioners in the present writ applications.
3. Learned counsel for the petitioners, who appeared in both the cases, raised solitary issue of inapplicability of principle of "no work no pay" in the cases of petitioners. He submitted that, once, after matter being remitted back by this Court, an order has been passed by the Appellate Authority reinstating the petitioners in service, though with some minor punishment, the same has to relate back to the date of order of their dismissal. Hence, it has to be presumed that the impugned revised order of punishment passed, by the D.I.G., the Appellate Authority, was passed in the preceding (sic--proceeding?) on the date of their dismissal only. Hence, he submitted that since the petitioners had been inflicted with one minor punishment by the impugned order, they could not be penalized again by denial of the salary of the period. In support of this submission, learned counsel for the petitioner placed reliance on the celebrated judgment of the Apex Court in the case of
4. In Jankiraman (supra) the Court framed three questions for its consideration in paragraph 2 (AIR). Out of the three questions, 3rd question formulated by the Court was "To what benefits an employee who is completely or partially exonerated is entitled to and from which date". The questions were considered by the Court one by one. Final conclusion on this question, arrived at by the Court, is contained in paragraph 26 (SCC) of the judgment, and at page 2017 right hand column in AIR, in the following terms:--
We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases where the proceeding, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardize public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:
"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."
(emphasis supplied)
5. It may be pointed out that in Jankiraman (supra) a clause of a Memorandum of Government of India (Department of Training and Personnel), laying down inflexible rule of denial of salary of intervening period in all circumstances, as noticed in the above passage, was not approved and was directed to be substituted in the manner indicated therein, for leaving out the discretion with the concerned authority. Hence it is obvious that, in view of the above observations of the Apex Court, the judgment is hardly of any help to the petitioners. It has to be noticed that, in the present case, this Court, in its earlier order, while remitting the matter back to the D.I.G., i.e., the Appellate Authority, did not quash either the enquiry report or the order of the disciplinary authority. The matter was only remitted back to the Appellate Authority for consideration of appeals of petitioners. Thus, the findings of guilt in the enquiry report and of the disciplinary authority remained intact. Moreover, when the Appellate Authority considered the matter afresh, under the directions of this Court, it also did not "completely exonerate" the petitioners. Though, in view of the judgment of the trial court, finding the petitioners not guilty of involvement in the crime, the Appellate Authority did not hold them involved in the crime, but found that the petitioners were at least guilty of suppression of information though they knew the full facts, and thus, hampered the investigation. The Appellate Authority, hence, found charges against them partially proved. Hence it only modified the order of the Disciplinary Authority in respect of punishment by reducing it to stoppage of one increment without cumulative effect and accordingly ordered for their reinstatement. Since this order was being passed in appeal on a matter being remitted back by this Court, it could not relate back to the date of order of dismissal. Moreover, as per the observations of the Apex Court, as reproduced hereinabove, it would be clear that, for any claim for payment of salary and allowances of the intervening period, upon being reinstated, a complete exoneration was essential. This was not the case of petitioners. It may be pointed out again that the Apex Court only found the complete bar in the Memorandum as not correct and it was ordered to be replaced, as quoted in paragraph, by vesting a discretion in the concerned authority to take decision on consideration of all the facts and circumstances of the particular case, and, in the event of denial of arrears, to record reasons for the same. It is clear from the judgment that this discretion was held available to a disciplinary authority even if the reinstatement was after ''complete exoneration'' from the charges.
6. The principle of "No work no pay" has been considered and relied by the Apex Court in several judgments in the last over 60 years. Prior to Jankiraman (supra), the Apex Court held the view that, in case of reinstatement in service, the delinquent was invariably entitled to full back wages. But since Jankiraman (supra) the view started changing and in several cases thereafter the Apex Court applied the principle to deny back wages in the background of the facts of the particular case. It is needless to take into account all the judgments of the Apex Court dealing with the principle and applying the same in the facts of the particular case. However, it may be appropriate to notice a judgment of the Apex Court in
"17. Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched."
and then in paragraph 22 observed as follows:--
"22. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or-otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act."
and thereafter His Lordship noticed several other judgments clearly establishing that, in the cases of reinstatement in service also, grant or denial of back wages was always within the domain of the Disciplinary Authority which depend upon the facts situation of the particular case. Finally applying the principle in that particular case the writ petitioner was held entitled for only 25% of the back wages.
7. In a more recent judgment, the Apex Court in the case of
"49. The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is reinstated, it would not automatically make him entitled to back wages as entitlement to get back wages is independent of reinstatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic.
8. This view, in brief, has been expressed by a Bench of this Court also in
9. Thus, it is clear that there is no hard and fast rule that, in case of reinstatement, a delinquent is, in all circumstances, entitled for payment of back wages and the principle of "no work no pay" can in no circumstance be applied by the Disciplinary Authority in the event of reinstatement, upon complete or partial exoneration from charge.
10. As noticed above in Jankiraman (supra), the most important precondition for consideration of such claim is complete exoneration from the charges. But, even in case of complete exoneration, discretion lies with the competent authority, who can deny back wages on the principle of "no work no pay" in the facts situation of the case by assigning reasons. In the present case the petitioners have not been completely exonerated. Though they have not been found guilty of the graver charge, but the lighter charge has been found stood established against them from the very beginning. This finding of the Appellate Authority in the impugned order, has not been challenged by the petitioners, on facts, by filing memorial. As pointed out earlier, the enquiry report and the order of the Disciplinary Authority was not interfered with by this Court earlier, and the matter was remitted back to the Appellate Authority only for reconsideration of the appeals of the petitioners. Hence, the findings of obstruction in investigation by concealing facts, found established in the enquiry and concurred by the Disciplinary Authority as well as Appellate Authority again, becomes concluded finding of fact. Hence this Court, within its powers of judicial review, cannot reopen and examine the same.
11. In the circumstances, this Court does not find that, while modifying the punishment of petitioners by substituting the punishment of dismissal with punishment of withholding of one increment without cumulative effect, denial of their back wages by the Appellate Authority, on the principle of "no work no pay", calls for any interference by this Court. As a result, the writ applications are dismissed.
