C.N.Malla vs State Of J&K & Ors

C.N. Malla .. Appellant

Versus

State of Jammu and Kashmir & Ors. ..Respondents

JUDGEMENT

R.M. Lodha, J.

Leave granted.

2. In this appeal by special leave, the only question that is

required to be considered is whether the Division Bench of the

High Court was justified in setting aside the order of the single Judge

awarding back wages to the appellant from the date of filing writ

petition upto the date of superannuation.

3. Facts are these, very briefly put. The appellant joined

the service of the State of Jammu & Kashmir as Assistant Surgeon in

1970. He held various posts in the Directorate of Health Services and was promoted first as Lecturer and then as Assistant Professor

in 1981. He was sent on deputation to Stanely Medical College,

Madras for undergoing specialized training in Microvascular and

Hand Surgery from January, 1986. Thereafter, the appellant

proceeded on 30 days leave with effect from March, 1986.

According to him, he had sent several applications for extension of

leave for undergoing further training and seeking service in foreign

country but his representations were not responded to by the state

government and his services were illegally terminated without

following the procedure prescribed in Jammu & Kashmir Civil

Services (Classification, Control and Appeal) Rules, 1956 (for short

`Rules 1956') on September 18, 1987. On the other hand, the stand

of the respondents is that after the period of sanctioned leave

expired, the appellant did not join duty despite letters and reminders

and continued to remain absent. Finally, by a notice dated July 16,

1987, the appellant was asked to show cause why his services

should not be terminated for having remained absent unauthorisedly

and, thereafter, by order September 18, 1987, his services were

brought to an end.

4. The appellant challenged the order of termination by

filing writ petition on May 16, 1994 before Jammu & Kashmir High

2 Court. The writ petition was opposed by the present respondents on

diverse grounds.

5. The learned single Judge after hearing the parties held

that the termination order was violative of the principles of natural

justice and the prescribed procedure. Vide order dated December

16, 1998, the learned single Judge set aside the order of termination

dated September 18, 1987 and awarded full back wages to the

appellant from the date of filing writ petition. The operative order

passed by the single Judge reads thus:

"As a result of aforesaid discussion this writ petition be allowed. Government Order No.400-HME of 1987 dated 18.9.1987 terminating the services of the petitioner is hereby quashed to set aside and the petitioner shall be deemed to have been in service from the date of his termination. Now arises the question of back wages. Petitioner is a Doctor by profession and in the background of this case it is ordered that he would only be entitled to back wages from the date he filed the writ petition i.e. 16.6.1994 (sic 16.5.1994) subject of course, to his fulfilling other condition as required under law so as to claim such wages. No costs."

6. The State of Jammu & Kashmir and its functionaries

challenged the order of the single Judge in intra court appeal. The

Division Bench concurred with the view of the single Judge that the

procedure established in Rules 1956 as well as provisions of section

126 of the Constitution of the State were not followed nor any

3 enquiry was held before terminating the services of the appellant.

This is what the Division Bench said:

"We are of the considered view that before termination of services of a Government servant, the procedure established under the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 as well as the provisions of Section 126 of the Constitution of the State have to be followed. We also concur with the view of learned Single Judge that it was not a case where no enquiry could have been conducted before terminating the services of the petitioner."

7. However, the Division Bench set aside the order of the

learned single Judge directing payment of back wages to the

appellant.

8. On May 12, 2009, when the matter came up before this

Court, learned counsel appearing on behalf of the respondents was

requested to take instructions whether back wages could be agreed

to be paid to the appellant and the matter was adjourned to the month

of August, 2009. Mr. Anis Suhrawardy, learned counsel for the

respondents today appeared before us and submitted that he took

up the matter with the state functionaries but has not been able to get

any positive response from the state government.

9. In PGI of Medical Education and Research, Chandigarh

vs. Raj Kumar,1 this Court stated:

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(2001) 2 SCC 54

4 "12. Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no strait-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety."

10. In U.P.State Brassware Corporation vs. Uday Narain

Pandey,2 , this Court while dealing with aspect of payment of back

wages to a workman by an Industrial Court whose retrenchment was

held illegal, held:

"42. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance."

11. Recently, in the case of Metropolitan Transport

Corporation vs. V. Venkatesan, (Civil Appeal No.5167/2009 decided

on August 7, 2009), we took note of recent approach of the courts

in the matter of direction for payment of back wages where

dismissal order is found illegal and invalid. We said:

"11. Firstly, it may be noticed that in seventees and eighties, direction for reinstatement and payment of full back wages on dismissal order having been found invalid would ordinarily follow as a matter of course. But there is change in legal approach now. We recently observed in Jagbir Singh vs. Haryana State Agriculture Marketing Board & Anr.{JT 2009 2 (2006) 1 SCC 479

5 (9) SC 396} that in recent past there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that the relief of reinstatement with back-wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is held to be in contravention to the prescribed procedure."

12. The legal position is fairly settled by 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. Insofar as the present case is

concerned, the Division Bench was mainly influenced by two

reasons in denying the appellant back wages viz., (one)

unauthorised leave and (two) delay in approaching the court. The

two reasons noticed by the Division Bench neither collectively nor

individually justify denial of back wages to the appellant in its

entirety. The allegation of unauthorized absence has not been

established as no enquiry was held; the case of the appellant was

that he had sent several applications for extension of leave for

undergoing further training. As regards the second reason viz.,

6 delay, suffice it to say that this aspect was clearly taken note of by

the single Judge and it was for this reason that back wages were

not awarded to him for the period from date of termination until date

of filing writ petition. The observation of the Division Bench that if

the court orders payment of back wages to the petitioner (appellant

herein), it will be against the public interest and also will drain the

public exchequer is founded on no legal premise.

13. Regard being had to all relevant facts and

circumstances, particularly the fact that the appellant is a doctor by

profession and must not have remained idle even after filing writ

petition, full back wages from the date of filing writ petition until

date of superannuation may not be justified. In our considered view,

the demand of justice would be met if the appellant is awarded 50%

back wages from the date of filing writ petition until he attained the

age of superannuation.

14. Consequently, appeal is allowed to the aforesaid extent.

The payment of due amount shall be made by the respondents to the

appellant within one month from today failing which it will carry simple

interest at the rate of 9% per annum from May 16, 1994 till the date

of actual payment. Parties will bear their own costs.

7 .................................J (Tarun Chatterjee)

.................................J (R.M. Lodha)

New Delhi, August 24, 2009

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