JUDGMENT
R.P. Sethi, J.
Holding the trade union activities of the petitioners to be prejudicial to the interests of the State the respondent Slate terminated the services of the petitioners vide various orders passed in the year 1975. The petitioners remained out of service till April 25, 1990 when they were reinstated after realising that their activities were not prejudicial to the interests of the State. It has been prayed by the petitioners that the original order of terminating their services be quashed along with the order impugned reinstating them in so far and to the extent the same deprives them of seniority, pension, increments, leave, salary, allowances and other benefits for the period between the date of their dismissal to the date of their reinstatement.
2. The important facts for determining the controversy in the instant case are: that the petitioners are the office bearers and active members of the low paid employees and claim to be instrumental in establishing the organisation known as ‘J & K Low Paid Employees Federation’ (hereinafter referred to as the Federation) in the year 1956. Petitioner Abdul Majid Khan is the Chairman of the Federation whereas the other petitioners are office bearers. The Federation is stated to have given a call for State-wide strike in all Government offices to impress upon the State Government to grant Central pay-scales and Dearness Allowance to the employee serving in the State of Jammu & Kashmir. It is claimed that the strike was a total success and practically brought the Government to its knees forcing it to concede the demands. It is alleged that looking at the organisational capacity of the petitioners and their popularity among the employees, the then Government hit upon a plan of dismissing the petitioners and some other active members in the Federation movement. Services of the petitioners and others were terminated in terms of Section 126 (2)(c) of the Constitution of Jammu & Kashmir. It is submitted that the Federation continued agitating for the fulfilment of its demands including demand for the reinstatement of the dismissed employees including the petitioners. After about 4 years the then Government reinstated the dismissed employees in supersession of their earlier orders. It is alleged that after taking reins of the Government, late Sheikh Mohd. Abdullah dismissed 2400 employees who had been appointed by the outgoing ministry headed by Syed Mir Qasim as teachers, clerks and peons. Sheikh threatened that the employees of the State, including the members of the Federation who completed 25 years of services or 50 years of age shall be compulsorily retired. It is further alleged that Sheikh declared to hold examination of all the teachers in the State Education Department who were recruited during the last 22 years when he was out of power. The Federation declared to have risen to the occasion and asserted that the Government could not afford to ride roughshod over the rights of the employees and any such efforts on the part of the Sheikh would be resisted with all force at the command of the Federation. On the persistence of the demands of the Federation the Government was forced to take back all the 2400 employees earlier dismissed and gave up the idea of holding examination for the teachers. The action for retiring the employees at the age of 50 years or 25 years of active service, was also abandoned. It is claimed that the Government felt defeated and was in search of an opportunity to vindicate its prestige and honour by mis-using and abusing the Constitutional provisions and victimising those who provided leadership to the Federation. Consequently orders for the dismissal of the petitioners were issued on September 5, 1975. It is stated that the orders of dismissal were never served upon the petitioners. Till the date of filing of the present petition, no such order was shown to be in existence in so far as Abdul Majid petitioner was concerned, but the orders regarding other petitioners were published in the Government Gazette which have been attached with the petitions. The Federation continued with its trade union activities and included in the charter of demands the reinstatement of the dismissed employees including the petitioners. Despite promises by the administration nothing was done and it was only in 1990 when Shri Jag-mohan took over the administration of the State after the imposition of Governor’s rule, that the demand for the reinstatement of the petitioners was dispassionately looked into. Ultimately the administration of Shri Jagmohan decided to reinstate the petitioners on April 25, 1990 subject, however, to certain conditions which have been incorporated in the individual orders served upon the petitioners. The petitioners have been deprived the benefits which they state, are permissible to a Government servant in the ordinary course of his service career including the benefits of seniority, promotion, arrears, allowances and pensionary benefits etc. It is submitted that the Government after having returned a definite and unambiguous finding that the petitioners were not guilty of indulging in any activity prejudicial to the interest of the State, the dismissal order ought to have been superseded and set aside unconditionally, the petitioners were entitled to the payment of interest upon the accumulated salary of which they were allegedly denied without any just cause. It is submitted that no reasons have been assigned nor indicated in the Government orders for depriving the petitioners the aforesaid benefits. It is submitted that power to reinstate has been exercised by the respondent State in a number of other cases in similar manner. It is alleged that the Government reinstated the colleagues of Sheikh Mohd. Abdullah who had also been dismissed from service after Sheikh’s removal from power in the year 1953. Such persons named by the petitioners include Shri Sadro Din Mujahid, G.M. Shah, Ghulam Rasoul Mir, Mohd. Amin, Ghulam Mohd. Chiken, Syed Mubarak Shah and others. All such persons were given full benefits by way of salary, promotion, arrears etc. The petitioners claim to have been discriminated and subjected to hostile treatment without any justification. It is submitted that the initial order of dismissal of the petitioners was passed without any charge-sheet or enquiry which was void and liable to be considered non-existent. The petitioners have prayed for quashing the conditions imposed by the Government upon their reinstatement vide orders passed on April 25, 1990 with a direction to the respondents to grant them all the benefits to which they are entitled in the absence of their dismissal along with interest at the rate of 18% per annum on the arrears of salary that became due to them. The petitioners may also be promoted to the next higher ranks and given all consequential benefits.
3. In the counter-affidavits filed on behalf of the respondent-State it is submitted that the writ petitions filed by the petitioners were not maintainable and the Government was justified to pass the orders of their reinstatement with any condition which was deemed, by the authorities, to be proper. It is submitted that the affairs of the State require to maintain discipline, absolute integrity, devotion to duty and exhibit good conduct which being essential characteristics of the service entitled the Government employees to continue to remain in service being eligible to the grant of pension on superannuation. The respondents claim to have framed rules known as Jammu & Kashmir Civil Services Regulations (CSR, for short) in exercise of their power under Section 124 of the State Constitution. They have also framed the Jammu & Kashmir Government Employees Conduct Rules, 1971 and the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1950. The Government claims to have the power to impose penalties like dismissal or removal from service upon any delinquent Government employee for good and sufficient reasons. The petitioners’ involvement in the trade union activities and being President and active members of the Federation has been admitted. It is however, submitted that with a view to muster the authority of the Government employees as a pressure upon the Government to yield to their demands, the petitioners acted prejudicially and as a consequence of repeated strikes the work in the offices of the State Government suffered causing inconvenience to the public in general and essential services in particular which prompted the State to take the decision to dismiss such employees including the petitioners from the service of the State for their prejudicial activities vide orders issued on September 5, 1975. It is admitted that the petitioners approached the Government for reconsideration of their cases upon which the respondent-State claims to have taken a lenient view and decided to reinstate the petitioners vide orders issued on April 24, 1990 subject to the conditions incorporated therein. The dismissal of the petitioners initially and their reinstatement in the year 1971 has been admitted. The threats attributed to Sheikh Mohd. Abdullah are denied for want of documentary evidence. The challenge to the orders of dismissal of the petitioners issued on September 5, 1975 has been described to be deleted and suffering from legal infirmity. The service of the dismissal orders issued in the year 1975 has been stated to be inferred and implied. The petitioners are stated to have not objected to the orders of dismissal during the last 15/16 years. However, submission of the petitioners of having made representation has not been denied. It is submitted that the activities of the petitioners were considered to be prejudicial to the interest of the State by the Government of the time on the basis of the reports of different agencies under the State. The petitioners’ activities are stated to be in the nature of misconduct forcing the State to dismiss them from their services. It is submitted that as the petitioners have not worked against any post for the last about 15/16 years as such they are not entitled to the payment of any remuneration on the doctrine of ‘No work, no wages’. It is further stated that as the petitioners were not actively working in the service under the Government, they are not entitled to increments of the intervening period salary etc. The impugned order is stated to be legal, valid and according to law. State claims to have the privilege not to hold any enquiry where it is neither reasonably practicable nor expedient to hold any such enquiry into the allegations of misconduct and other prejudicial activities to the interests of the State. The dismissal and reinstatement of the colleagues of late Sheikh Mohd. Abdullah, as stated by the petitioners has not been denied. It is submitted that the petitioners cannot equate their cases with such other persons. It is submitted that the circumstances in both the cases were at poles apart and the petitioners have not been subjected to any hostile treatment. The writ petitions are stated to be misconceived and liable to be dismissed.
4. I have heard learned counsel for the parties at length. Despite opportunities granted and under-taking given, relevant record pertaining to the petitioners and the material on the basis of which the impugned orders was passed, has not been produced.
5. Mr. Gandhi, the learned Addl. Advocate General, has argued that the writ petitions filed were misconceived as no fundamental or legal right of the petitioners was infringed. It has been submitted that the claim to the pension, increments and salary cannot be termed to be any legal right for which a petition could be filed or the relief granted. It is submitted that such grants are in the discretion of the Government who have the exclusive powers to pass appropriate orders with respect to the grant or refusal of the pension, salary and other service benefits. It is further submitted that the orders of reinstatement of the petitioners have been passed only on humanitarian grounds and after taking a lenient view in the matter. It is urged that the petitioners were guilty of gross misconduct disentitling them to be reinstated or the grant of consequential benefits,
6. Salary of a civil servant cannot be termed to be a measure of grant or a bounty being in the discretion of the Government. The salary is paid for the services rendered to which a civil servant is entitled as a matter of right either under the service rules or the service contract. The salary being a consideration of the services rendered, is, in fact, a property of which a civil servant cannot be deprived without having recourse to the provisions of Constitution and the service rules applicable. The mere fact that an employee serves the State in the discretion of the executive, cannot be made a basis for depriving him of the fruit of the services and the labour rendered. A civil servant cannot be forced to serve the executive ex-gratia and it cannot be held that his salary is in the nature of a bounty. In State of Bihar v. Abdul Majid, (1954-II-LLJ-678 at 684) it was held:
“The rule that a civil servant holds office at the pleasure of the Crown has its original in the Latin phrase ‘durate bene placito’ (during pleasure) meaning that the tenure of office or a civil servant, except where it is otherwise provided by statute, can be terminated at any time without cause assigned. The true scope and effect of this expression is that even if a special contract has been made with the civil servant the Crown is not bound thereby. In other words civil servants are liable to dismissal without notice and there is no right of action for wrongful dismissal, that is, that they cannot claim damages of premature termination of their services. (See Fraser’s Constitutional Law, p.126; Chalmer’s Constitutional Law, p.186; ‘Shenton v. Smioth’, 1895 AC 229 at p. 234 (G); – ‘Dunn v. The Queen’, (1896) IQ B. 116.
This rule of English law has not been fully adopted in Section 240. Section 240 itself places restrictions and limitations on the exercise of that pleasure and those restrictions must be given effect to. They are imperative and mandatory. It follows therefore that whenever there is a breach of restrictions imposed by the statute by the Government or the Crown the matter is justiciable and the party aggrieved is entitled to suitable relief at the hands of the court. As pointed out earlier in this judgment, there is no warrant for the proposition that the relief must be limited to the declaration and cannot go beyond it. To the extent that the rule that Government servants hold office during pleasure has been departed from by the statute, the Government servants are entitled to relief like any other person under the ordinary law, and that relief therefore must be regulated by the Code of Civil Procedure.”
The Supreme Court in that case dealt with the cases decided earlier and reported in (AIR) 1947 FC 23, (AIR) 1948 PC 121, (AIR) 1949 PC 112, 1895 AC 229 and (1896) 1 QB 116.
7. In view of the judgment of the Supreme Court, and the law as developed in this Democratic Republic for the last more than 40 years is unambiguous in terms and is the result of long trade union movement in the country established and continued for the purposes of attaining the legal rights and constitutional guarantees for the civil servants. The civil servants cannot be equated with private employees or personal property of any individual howsoever high he may be or left at the mercy of a particular ruler in the country at a particular time. Consistency and security of tenure of the civil servants is the basis of the fabric upon which rests the present administrative set up of the country. The civil servants are entitled to various rights and subject to specified obligations. If the service career of a civil servant is left to the whim or caprice or unguided discretion of a particular ruler at a specific time, same may result in deterioration of standards in the civil services jeopardising the whole system and resulting in crumbling down of the whole of the administrative institutional system in the country. The executive or the State or the Government of a particular time in this country have to be bound and governed by the rule of law as enshrined in the Constitution and interpreted by the apex court and various High Courts in the country. Security of service cannot be allowed to be endangered or termed to be in the absolute discretion of the executive.
8. Similarly it cannot be held that a pension is merely a bounty payable on the sweet will and pleasure of the Government. Right to receive salary and pension is property under Article 31 of the Constitution, of which the civil servants cannot be deprived without having recourse to the provisions of law. In Deokinandan Prasad v. State ofBihar and Ors., (1971-I-LLJ-557)the Supreme Court held (pp. 568-569):
“The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India, (AIR) 1962 Punj. 503. It was held that such a right constitutes, ‘property’ and any interference will be a breach of Article 31(1) of the Constitution. It was further held mat the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh, ILR (1965) 2 Punj. 1 approved the decision of the Learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is ‘property’ within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as ‘property’ cannot possibly undergo such mutation at the whim of a particular person or authority.
The matter again came up before a Full Bench of the Punjab & Haryana High Court in K.R. Erry v. The State of Punjab, ILR (1967) 1 Punj & Har 288 (FB). The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet-will and pleasure of the Government and that right to superannuation pension including its amount is a valuable right vesting in a Government Servant. It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Services Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet-will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a Government servant.
9. This court in State of Madhya Pradesh v. Ranojirao Shinde (AIR) 1968 SC 1053 had to consider the question whether a ‘cash grant’ is ‘property’ within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This court held that it was property, observing, ‘it is obvious that a right to sum of money is property”.
10. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by Sub-article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1) of the Constitution, and as such the writ petiion under Article 32 is maintainable. It may be that under the Pensions Act (Act 23 of 1871) there is a bar against a Civil Court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a writ of mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law.
11. The Supreme Court again in D.S. Nakara v. Union of India (1983-I-LLJ-104) while dealing with the question as to whether the pension was a bounty, a gratuitous payment or a right of civil servant, held (p.110):
“The antiquated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right, and, therefore, no right to pension can be enforced through court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar (1971-I-LLJ-557) wherein this court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within these rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone’s discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh (1976-II-LLJ-377):”
In that case the Supreme Court held that while expanding horizons of socio-economic justice, the socialist republic and welfare State which the country endeavours to set up and the fact that the old men who retired at particular time were held entitled to the benefits of subsequent legislation made with regard to the payment of pension and other benefits.
12. The plea that as the petitioners had not performed duties during the period of 15/16 years on account of their dismissal, they were not entitled to the grant of emolument on the principle of ‘No work, no wages’, is by itself misconceived and based upon wrong notions of law. The argument of the learned Addl. Advocate General has no legs to stand inasmuch as the petitioners were never offered the work which they allegedly refused. The present case is a case where the petitioners were illegally deprived to work. Deprivation to work to the post to which they were appointed was at the risk and responsibility of the respondent-State and could not have been made a basis for depriving the petitioners of the emoluments to which they were entitled had the orders of termination not been passed against them. One cannot forget the halocast of economic deprivation to the dependents of the petitioners which might have upset their career, depriving the society of the services of such youth and budding dependants or children of the petitioners. The Executive apparently was not justified to pass the orders of reinstatement of the petitioners with restrictions and conditions as laid down in the impugned orders. Once being satisfied about the falsity of their statement in dismissing the petitioners and subsequently holding them to be involved in genuine trade union activities, it was incumbent upon the respondent-State to revoke the order of dismissal unconditionally. The order of reinstatement putting restrictions does not specify any ground or justification for depriving the petitioners of the benefits to which they would have been otherwise entitled to in the absence of the orders of their dismissal. The respondent-State has also not been in a position to justify their action from the official record for the production of which sufficient time was given to them. The non-production of the record justifying the deprivation of the service benefits to the petitioners, leaves this court with no option but to draw a presumption that such record is non-existent or if in existence the production of it would be to the prejudice to the respondent-State. In the absence of contemporaneous record and the non-speaking orders putting restrictions upon the benefits to which the petitioners are entitled upon their reinstatement, strengthens the case of the petitioners as rejected in the writ petitions and dashes to the ground the sand-walls raised by the respondents on their ipsi dixit and connected pleas on frivolous grounds.
13. Mr. Gandhi has next referred to Chapter X with particular reference to Articles 107, 108-A, 108-B and 108-C of the Civil Services Regulations to urge that the respondents had the discretion to pass appropriate orders regarding the pay and allowances of the petitioners while passing the orders of their reinstatement. It is submitted that the opinion of the respondent-authorities cannot be substituted by this Court. It is contended that where once the authority comes to the conclusion that a Government servant has been reinstated and is not entitled to the pay and allowances, his opinion is binding upon the Court. Article 108-B provides:
“(1) When a Government servant who has been dismissed, removed, compulsorily retired before attaining the age of superannuation, or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order –
(a) regarding the pay and allowances to be paid to such Government servant for the period of his absence from duty; and
(c) whether or not the said period shall be treated as a period spent on duty
(d) where the authority mentioned in Sub-rule (i) is of opinion that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified, the Government servant shall be given the fully pay and allowances to which he would have been entitled had he not been dismissed, removed, compulsorily retired before attaining the age of superannuation or suspended, as the case may be. The period of absence from duty shall be treated as period spent on duty.
14. A perusal of the above provision shows that the Government is under an obligation to consider and make specific order regarding pay and allowances to be paid to such reinstated Government servant for the period of his absence from duty and whether or not said period shall be treated as period spent on duty. The words, ‘shall consider’ casts an obligation upon the respondent-State to consider judiciously and pass appropriate orders in consequence thereof. The orders contemplated under the aforesaid rule are considered to be the result of such consideration. Any order passed without such consideration is in negation to the mandatory provision of the aforesaid rule. In the instant case, the language of the orders does not show any consideration and the respondents have failed to produce any relevant record in proof of and to demonstrate such consideration. It is true that the respondents were not under an obligation to show consideration in the orders itself but could also prove such consideration from the relevant record. In the absence of consideration it cannot be said that the Government had exercised the option vested in it under Article 108-B of the CSR. Withholding of the record speaks volumes and supports the contention as raised by the petitioners. The petitioners’ case, therefore, has not at all been considered in terms of Article 108-B of the CSR.
15. Sub-rule (ii) of Article 108-B provides that where the authority is of the opinion that the Government servant has been fully exonerated, such servant shall be given the full pay and allowances to which he would have been otherwise entitled had he not been dismissed, removed or compulsorily retired and the period of absence from duty shall be treated as a period spent on duty. In case of exoneration of the allegation, the authority has no option but to grant the salary and treat the period of absence from duty as period spent on duty. In the instant cases services of the petitioners were terminated on the ground of their activities prejudicial to the interest of the State which was found to be incorrect and the respondents vide the orders reinstating the petitioners held, ‘The Government is satisfied that the said Shri (the petitioner) has remained involved in trade union activities and not with the activities prejudicial to the interest of the State.’ A perusal of para 6 of the aforesaid orders clearly suggests that the petitioners were exonerated of the charges on the basis of which they were dismissed from service. It is, therefore, held that the petitioners were reinstated after being exonerated of the charges on the basis of which they were removed and were entitled to the grant of pay etc. in terms of Sub-rule (ii) of Article 108-B of the SCR.
16. Mr. Thakur has argued for specifically quashing the orders of dismissal of the petitioners dated September 5, 1975 holding it to be in contravention with the provisions of the Constitution and the service rules applicable in the case. In view of the fact that the said Government orders have been revoked by the State itself, I am not inclined to accept the prayer of the petitioners or go into the question regarding the validity or otherwise of the said Government orders.
17. The petitioners have further claimed they be paid their arrears of salary etc. with interest at the rate of 18% per annum. It is true that the petitioners have been deprived of the salary on the basis of the order of their dismissal which has been found to be without any basis, illegal and subsequently quashed and are entitled to be compensated by payment of interest in the form of compensation for wrongfully withholding the salary. I am, however, of the opinion that the rate of interest claimed in excessive and interest of justice would be served if the petitioners are held entitled to the payment of such interest at the rate of 12% per annum only.
18. The petitioners have also claimed the promotions, seniority and the pensionary benefits. So far as the promotions are concerned, I am not in a position to decide as the whether the petitioners could be promoted and, if so, to what post, during this period. However, I leave it to the respondents to consider the cases of the petitioners for further promotions in the absence of the orders of their dismissal and confer upon them all consequential benefits. Such consideration shall be finalised within a period of three months.
19. Under the circumstances these petitions are allowed by issuing the following directions:
(1) The conditions imposed in the orders of reinstatement of the petitioners dated April 25, 1990 shall be considered to be non-existent and the petitioners entitled to the consequential benefits of salary, permissible allowances, increments, promotions and Pensionary benefits. They may be deemed to be treated on duty during the period of their dismissal. The petitioners, however, cannot claim leave as a matter of right;
(2) The petitioners are held entitled to the payment of interest on the arrears of their salary etc. at the rate of 12% per annum from the date when the employments became due to them;
(3) The respondents shall consider the cases of the petitioners for further promotions in the absence of the order of their dismissal and grant them consequential benefits within a period of three months from to-day;
(4) The petitioners shall also be entitled to all the consequential benefits upon their reinstatement without any conditions as incorporated in the orders of the respondents dated April 25, 1990.
(5) No costs.