IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P.(S) No. 5459 of 2004
...
Anil Kumar Singh ... Petitioner
-V e r s u s-
1. Union of India
2. Inspector General, Central Industrial Security
Force, North East Zone, Headquarters, Patna
3. Commandant, Central Industrial Security Force,
Unit C.T.P.S.(DVC), Chandrapura, Bokaro
4. Deputy Commandant, Central Industrial Security
Force, Unit F.C.I., Sindri, Jharkhand ... Respondents
...
CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
...
For the Petitioner : - Mr. Anil Kumar Sinha, Sr. Advocate
For the Respondents : - Mr. Faiz ur Rahman, CGC
...
6/07.04.2010
Heard counsel for the parties.
2. The petitioner in this writ application has prayed for a direction upon the
respondents to pay him his entire salary for the period 07.02.1994 till 27.12.2002
during which period he was kept out of service pursuant to an earlier order of
termination of his services.
3. As per the admitted facts of the case, the petitioner being a constable working
in the C.I.S.F. Unit, was terminated from service on certain charges.
The petitioner challenged the order of his termination by filing a writ
application before this Court. The writ application of the petitioner vide C.W.J.C. No.
8069 of 1994 was allowed by this Court holding that the impugned order of the
petitioner’s termination from service was illegal. While disposing of the writ
application, this Court had directed the respondents to reinstate the petitioner in
service.
4. It appears that in compliance with the directions contained in the order of this
Court, as passed in the earlier writ application, the respondents had though reinstated
the petitioner in service, but such reinstatement was made on initial scale of his pay.
No back wages for the entire period during was he was out of service, was paid to
him.
5. In the counter affidavit, an explanation for refusal to pay back wages has
been offered by the respondents by taking a plea that since the order of the High
Court, as passed in the earlier writ application, does not specify that the petitioner
should be paid his back wages and further, since the principle of ‘no work no pay’
would apply to the petitioner, therefore he is not entitled to back wages.
As regards the fixing of the pay scale of the petitioner at the initial scale and
not the scale to which he was entitled on the date of passing the order of his
termination from service, the counter affidavit of the respondents is totally silent.
6. Learned counsel for the petitioner informs by reference to paragraph 12 of
the writ application that the petitioner has specifically stated that the period during
which the petitioner was kept out of service, he was not gainfully employed and this
averment has not been denied by the respondents in their counter affidavit.
7. The principle of ‘no work no pay’ would certainly not apply in cases where
the employee though willing to offer his services he is not allowed to work without
his fault. It is well settled that in cases where the services of the employee is
terminated by an order which is found to be thoroughly illegal, the employee cannot
be subjected to any detriment which would follow on account of termination of his
services. In this context one may advert to the judgement of the Supreme Court in
the case of Union of India & others Vs. K.V. Jankiraman & others, 1991(4) SCC
109.
From the perusal of the judgement passed in the earlier writ application and
the observations contained therein, while setting aside the impugned order of
termination of the petitioner’s service, this Court has observed that the frorder
appears to have been passed vindictively and malafidely by the concerned
authorities of the respondents. It is apparent therefore that this Court had declared
that the termination of the petitioner’s services was thoroughly illegal and arbitrary
and as such, the petitioner cannot be denied the benefits of wages for the period
during with he was not allowed to join duty. To reiterate, the principle of ‘no work
no pay’ would not apply to the facts and circumstances of the present case.
For the same reason, the order of reinstatement would imply that the
petitioner, upon his being reinstated, should be placed in the same position on
which he was working on the date when the order of his termination from service was
passed and he would certainly, under such conditions, be entitled to all the
monetary benefits which he would have earned, had he not been illegally removed
from service.
8. In the light of the above discussions and the facts and circumstances of the
case, I find merit in this application. Accordingly, this writ application is allowed.
The concerned authorities of the respondents shall pay the entire back wages to the
petitioner for the period during which he was kept out of service and shall also pay
him the salary which was paid to him on the date when his services were
terminated, in the appropriate scale along with periodical increments which he
would otherwise have earned during such period.
9. The directions contained in this order shall have to be complied with by the
concerned authorities of the respondents within a period of two months from the
date of receipt/production of a copy of this order.
Let a copy of this order be given to the counsel for the respondents.
(D.G.R. Patnaik, J.)
Birendra/A.F.R.