Salim Ali Centre For Ornithology And Natural History & Anr. vs Mathew K. Sebastian

NON-REPORTABLE IN THE SUPREME COURT OF INDIA EXTRA-ORDINARY APPELLATE JURISDICTION PETITION(S) FOR SPECIAL LEAVE TO APPEAL (C) NO. 5218/2022

Salim Ali Centre for Ornithology & Natural History, Coimbatore & Another …Petitioners

Versus

Dr. Mathew K. Sebastian …Respondent

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 27.07.2021 passed by the High Court of Judicature at

Madras in Writ Appeal No. 35/2021, by which the Division Bench of the

High Court has dismissed the said appeal and has confirmed the

judgment and order dated 25.02.2020 passed by the learned Single

Judge of the High Court allowing writ petition No. 29201 of 2020

preferred by the respondent herein and has directed the petitioners –

management to pay back wages along with interest @ 9% per annum to Signature Not Verified

the respondent herein – original writ petitioner for the period from Digitally signed by DEEPAK SINGH Date: 2022.04.16 12:29:06 IST Reason:

23.08.2002 to 30.04.2007, during which time he was out of employment,

1 the management has preferred the present special leave petition under

Article 136 of the Constitution of India.

2. The facts leading to the present special leave petition in a nutshell

are as under:

That the respondent herein – original writ petitioner (hereinafter

referred to as the ‘writ petitioner’) was dismissed from service on

30.01.1996. The order of termination was challenged. The writ

petitioner succeeded before the learned Single Judge. By judgment and

order dated 23.08.2002, the learned Single Judge directed his

reinstatement with all consequential benefits, except back wages.

Against the judgment and order dated 23.08.2002 passed by the learned

Single Judge, the management preferred an appeal before the Division

Bench. There was a stay against reinstatement in the appeal at the

instance of the management. The appeal came to be dismissed,

consequent to which, the writ petitioner was reinstated in his original

post on 16.12.2010. Since, there was a stay in the appeal preferred by

the management, the writ petitioner could not join the services and he

remained out of employment from 23.08.2002 to 30.04.2007, and was in

some other employment from 01.05.2007 to 20.01.2011. He submitted

representations for the back wages for the period during which he

remained unemployed, i.e., from 23.08.2002 to 30.04.2007. Thereafter,

the writ petitioner preferred the writ petition before the High Court

2 praying for tangible benefits including back wages from the date of order

of reinstatement passed by the learned Single Judge till the

reinstatement. However, he claimed back wages from 23.08.2002 to

30.04.2007 only, the period during which he remained out of

employment.

2.1 The learned Single Judge allowed the said writ petition and

directed the petitioners – management to pay to the writ petitioner back

wages along with interest @ 9% per annum for the period from

23.08.2002 to 30.04.2007, during which time he was out of employment.

2.2 Feeling aggrieved and dissatisfied with the judgment and order

passed by the learned Single Judge ordering back wages for the period

from 23.08.2002 to 30.04.2007, the management preferred an appeal

before the Division Bench. By the impugned judgment and order, the

Division Bench of the High Court has dismissed the said appeal and has

confirmed the judgment and order passed by the learned Single Judge

ordering back wages along with interest @ 9% per annum for the period

from 23.08.2002 to 30.04.2007.

2.3 Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the Division Bench of the High Court along with

interest @ 9% per annum to the writ petitioner for the period from

23.08.2002 to 30.04.2007, the management has preferred the present

special leave petition.

3

3. Ms. Madhvi Divan, learned Additional Solicitor General of India has

appeared for the petitioners.

3.1 Ms. Madhvi Divan, learned ASG has made the following

submissions, in support of her submission against awarding/granting

back wages to the writ petitioner for the period from 23.08.2002 to

30.04.2007:

i) that the writ petitioner has not established and proved and/or produced any documentary evidence to prove that during the period from 23.08.2002 to 30.04.2007, he was not gainfully employed;

ii) that as per the settled position of law, it is the employee who has to prove by leading evidence that he was not gainfully employed during the period he remained out of employment. Reliance is placed upon the decisions of this Court in the cases of State of U.P. v. Atal Behari Shastri, 1993 Supp (2) SCC 207; Kendriya Vidyalaya Sangathan v. S.C. Sharma, (2005) 2 SCC 363; J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433; P. Karupaiah v. General Manager, Thruuvalluvar Transport Corpn. Ltd., (2018) 12 SCC 663; and M.P.State Eelectricy Board v. Jarina Bee, (2003) 6 SCC 141;

iii) that even on the principle of “no work no pay”, the writ petitioner shall not be entitled to any back wages for the period from 23.08.2002 to 30.04.2007, during which time he never worked and he was out of employment.

4 4. Having heard Ms. Madhvi Divan, learned ASG and considering the

facts and circumstances narrated hereinabove, we are of the firm view

that the High Court has not committed any error in ordering back wages

along with interest @ 9% per annum to the writ petitioner for the period

from 23.08.2002 to 30.04.2007 during which time he was out of

employment.

4.1 It is required to be noted that this is a case where the writ

petitioner – respondent herein was claiming back wages on quashing

and setting aside the order of termination. This is case where he

remained out of employment, despite the order of reinstatement granted

by the learned Single Judge, in view of the stay in the appeal preferred

by the management – petitioners herein, which ultimately came to be

dismissed in the year 2010. The back wages which are awarded to the

writ petitioner are for the period the learned Single Judge in the earlier

round of litigation ordered reinstatement. If there would not have been

any stay order in the appeal preferred by the management, in that case,

the writ petitioner would have been reinstated in service in the year 2002

itself, pursuant to the judgment and order passed by the learned Single

Judge. What was denied by the learned Single Judge in the earlier

round of litigation was the back wages from the date of termination

(1996) till the order of reinstatement (2002). In the present case, the writ

petitioner is claiming the back wages for the period subsequent to the

5 order of reinstatement passed by the learned Single Judge and the writ

petitioner remained out of employment even thereafter due to the order

of stay passed in the appeal preferred by the management. Therefore,

as such, on dismissal of the appeal of the management and the stay

being vacated, the judgment and order passed by the learned Single

Judge, setting aside the termination and ordering reinstatement came to

be confirmed, as a natural consequence, the writ petitioner – employee

shall be entitled to back wages during the period he remained

unemployed in view of the order of stay granted by the appellate court,

which was at the instance of the management, subject to the

management proving or producing any material on record that even

during the said period the employee was gainfully employed.

5. Now so far as the submission on behalf of the management that

the writ petitioner has not established and proved by leading cogent

evidence that he was not gainfully employed during the period he was

out of employment and therefore he shall not be entitled to the back

wages is concerned, at the outset, it is required to be noted that as such

the learned Single Judge in the earlier round of litigation ordered

reinstatement vide order dated 23.08.2002 and in fact the appeal came

to be dismissed and the writ petitioner was reinstated in service on

16.12.2010. Therefore, as such, he was entitled to back wages for the

period between 23.08.2002 to 16.12.2010, subject to proving that he

6 was otherwise gainfully employed. However, the writ petitioner himself

came out with a case and claimed back wages only for the period from

23.08.2002 to 30.04.2007 by specifically averring and submitting that he

was in some other employment for the period from 01.05.2007 to

20.01.2011. By submitting so, it can be said that the writ petitioner has

discharged the initial burden. Thereafter, the onus shifted to the

employer to disprove and establish that the employee was gainfully

employed throughout the aforesaid period.

6. Now so far as the submission on behalf of the petitioners herein

that the writ petitioner had not established and proved by leading cogent

evidence that he was not gainfully employed is concerned, it is to be

noted that once the writ petitioner came out with a specific case that he

remained out of employment for the period from 23.08.2002 to

30.04.2007 and that he was gainfully employed during the period from

01.05.2007 to 20.01.2011, meaning thereby, that he was not gainfully

employed for the period between 23.08.2002 to 30.04.2007, thereafter,

he was not required to lead any further evidence to prove the negative.

Even in the case of J.K. Synthetics v. K.P. Agrawal (supra), it is

specifically observed by this Court that an employee cannot be asked to

prove the negative. However, he has to at least assert on oath that he

was neither employed nor engaged in any gainful business or venture

and that he did not have any income. Thereafter the employee is not

7 supposed to prove the negative that he was not gainfully employed.

There cannot be any evidence to prove the negative to the effect that he

is not gainfully employed. Once he asserts that he is not gainfully

employed, thereafter the onus will shift to the employer positively and it

would be for the employer to prove that the employee was gainfully

employed. Therefore, in the facts and circumstances of the case, none

of the decisions relied upon by the learned ASG, referred to

hereinabove, is of any assistance to the petitioners, considering the facts

and circumstances, narrated hereinabove.

7. As far as the submission on behalf of the petitioners that even on

the principle of “no work no pay”, the writ petitioner shall not be entitled

to back wages is concerned, the said principle shall not be applicable to

the facts of the case on hand, where the employee remained

unemployed due to the stay order granted by the appellate court. It was

the management who preferred the appeal and at the instance of the

management, there was an order of stay against reinstatement as

ordered by the learned Single Judge and the appeal came to be

dismissed and consequently the stay came to be vacated in the year

2010. Therefore, the employee/writ petitioner/respondent herein cannot

be denied the back wages for no fault of his. Therefore, the principle of

“no work no pay” shall not be applicable in such a situation.

8

8. In view of the above discussion and for the reasons stated above,

we see no reason to interfere with the impugned judgment and order

passed by the Division Bench as well as the judgment and order passed

by the learned Single Judge ordering back wages for the period from

23.08.2002 to 30.04.2007 along with interest @ 9% per annum. The

special leave petition stands dismissed accordingly. Now the Petitioners

- management shall pay the amount due and payable to the Respondent

- Original Writ Petitioner within a period of eight (8) weeks from today.

……………………………………..J. [M.R. SHAH]

NEW DELHI; ……………………………………..J. APRIL 04, 2022. [B.V. NAGARATHNA]

9