JUDGMENT
K.S. Radhakrishnan, J.
1. Point in controversy in this appeal is whether the first respondent is entitled to all service benefits including back wages, other monetary benefits, promotion etc., from the date of his dismissal till his reinstatement. The learned single Judge while interpreting the words “the entire period of dismissal is treated as period of service” in Exhibit P-4 took the view, the first respondent was entitled to continue in service from May 16, 1990, the date of dismissal, to May 6, 2004, the date of reinstatement with all consequential benefits like back wages and other monetary benefits the correctness as otherwise of the findings is the question before us.
2. The first respondent filed a statement on a direction given by us stating that an amount of Rs. 14,22,795/- (Rupees Fourteen Lakhs Twenty Two thousand Seven hundred and Ninety Five) would be due to him as on July 2, 2007 if the judgment of the learned Judge is implemented. We also directed the Bank to file a statement regarding the amount due to the first respondent if the judgment is given effect to. Bank has filed a statement on June 22, 2007 stating an amount of Rs. 10,16,342/- would be due if the judgment is given effect to. Bank submitted that the learned single Judge was not justified in directing the payment of entire back wages and other monetary benefits in the absence of any specific direction for payment of back wages. Exhibit P-4 is the order passed by the Joint Registrar on March 25, 1998 directing the Managing Committee of the Bank to reinstate the first respondent in service. Joint Registrar has rescinded the resolution passed by the Board in terminating the service to the first respondent. The operative portion of the order is as follows:
Consequent on the rescinding of decisions (resolutions) relating to the dismissal of Nazimudin the Managing Committee shall reinstate the employee in the Society forthwith. The entire period of dismissal is treated as period of service.
3. Society filed an appeal against the order which was dismissed by the Government by Exhibit P-5 order dated February 22, 1999. The above mentioned orders were challenged by the Bank in O.P. 6397/1999 which was dismissed and the matter was carried in Writ appeal No. 1989/2003, which was also dismissed. S.L.P. (C) 6279/2004 filed by the Society was also dismissed.
4. First respondent, thereafter, filed O.P. No. 35110/2003 claiming back wages and other monetary benefits. When the writ petition came up for hearing, the petitioner stated that he was reinstated in service but was not given the back wages and other monetary benefits on the strength of Exhibit P-4 order passed by the Joint Registrar. Learned single Judge disposed of the writ petition on June 8, 2004 stating that there was no justification in withholding other benefits which are due to him. First respondent later filed a representation dated July 5, 2004 before the Registrar of Societies who passed Exhibit P-11 order dated November 4, 2004 stating as follows:
The Joint Registrar (General) Thiruvanathapuram set aside the decision of the Sub Committee and Appellate authority dismissing the Petitioner from Service. The entire period of dismissal was treated as period of service in the said order. Since the order has attained finality, he is entitled for service and monetary relief. On considering the aspect that no work, no pay, and considering the financial interest of the Venjaramood Rubber Marketing Co-operative Society, Nazimuddin is to be given monetary benefits from the date of his reinstatement in service that is with effect from May 6, 2004. His pay should be notionally fixed as if he was in service in the Bank without any break of service and resultant pay and allowances should be given to him from the date of his reinstatement.
5. Registrar has also directed that the first respondent is entitled for consequential promotion. First respondent is aggrieved by the order of the Registrar restricting the back wages only from the date of his reinstatement in service, i.e. from May 6, 2004. The first respondent then took up the matter before the Government and the Government vide Exhibit P-12 order dated July 6, 2005 dismissed the appeal stating as follows:
After detailed examination the Registrar issued the order holding that the appellant is entitled for back wages and arrears from the date of reinstatement after fixing his pay notionally from the date of entry in service without any break of service and that he is entitled for backwages and arrears from the date of reinstatement and consequential promotions before his juniors from the date of acquiring JDC and that his pay should notionally be arrived as if he was in service of the society. Resultant salary arrears and the other monetary benefits in the promoted posts was also ordered to be disbursed from the date of reinstatement. The above said order is passed after considering all aspects of the case. The appellant had not worked for a long period of 14 years even if it is due to litigations. The decision of the Supreme Court referred to by the appellant is not relevant here. The decision is only upholding the findings of Labour Court. But in the case of the appellant herein no lower authority has directed to give any back wages to the appellant; only service benefits are allowed. His past history shows that he is not having an unblemished service as claimed by him. Though he was not paid arrears of salary for those 14 years his salary on reinstatement was ordered to be fixed notionally as if he was in service. The promotion due to him considering his qualification had also been granted. Thus his service benefits have been granted. Regarding the promotion to the higher post of Managing Director after giving exemption from educational qualification, it is the management to decide as to whether exemption is to be given or not. The appellant deserves no benefits other than those allowed by the Registrar of Co-operative Societies.
6. There is the controversy between the parties whether the first respondent was gainfully employed while he was out of service. It is unnecessary to examine those disputed facts in this proceedings. However, we have to examine the impact of Exhibit P4 order, on the claim of the first respondent for back wages and other monetary claims. We have, therefore to examine meaning of the words “the entire period of dismissal is treated as period of service”. If we hold that those words take in monetary benefits also, then according to the respondent he will be entitled to an amount of Rs. 14,22,795/- and according to the Bank it will come to Rs. 10,16,342/-. True in the O.P. 6397/1999 and W.P. (C). 35110/2003 the learned single Judge noted that there is no justification in withholding the other benefits which are due to the petitioner, since the matter has been attained finality, meaning -thereby what is legitimately due to the respondent is due to him as per law. In J.K. Synthetics Ltd. v. K.P. Agrawal and Anr. , the Apex Court had occasion to consider a similar issue and held as follows:
The manner is which “back wages” is viewed has undergone a significant change in the last two decades. They are no longer considered to be an automatic or natural consequence of reinstatement. There has also been a noticeable shift in placing the burden of proof in regard to back wages. There is also a misconception that whenever reinstatement is directed, “continuity of service” and “consequential benefits” should follow, as a matter of course. The disastrous effect of granting several promotions as a “consequential benefit” to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever Courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether “”continuity of service” and/or “consequential benefits” should also be directed.
Even if the Court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially. That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages. Therefore it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert an oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment.
7. Joint Registrar in Exhibit P-4 order has ordered that the entire period of dismissal of the first respondent be treated as period of service, meaning thereby the entire period of dismissal, be treated as service. Service means condition or occupation of one who serve. Apex Court has re-empnasised the fact that whenever Courts or Tribunal direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether “continuity of service” and/or “consequential benefits” should also be directed. They are different concepts altogether. The Apex Court in A.P. SRTC and Anr. v. S. Narsagoud held that there is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. The above decision was quoted with approval in Rajasthan State Road Transport Corporation and Ors. v. Shyam Bihari Lal Gupta .
8. The Joint Registrar in Exhibit P-4 order has stated that the period of dismissal will he treated as period of service meaning thereby there will be continuity of service. But the order is silent as to consequential benefits. If the Courts or Tribunal want to give consequential benefits, several factors would have to be considered. Various factors have to be taken into consideration by the Courts, Tribunal or other authorities while awarding consequential benefits. Gravity of the charges levelled against a delinquent employee, the quantum of punishment, the income earned during the period of dismissal etc., would go into the mind of the Court, Tribunal or other authority while granting or denying consequential benefits. Sometimes reinstatement is ordered with full back wages or with half the back wages or without back wages, or pay a consolidated amount etc. Exhibit P4 order, so far as the case is concerned, is silent with regard to the payment of “consequential benefits” such as monetary benefits, promotion etc. In the absence of such specific stipulation in Exhibit P-4, we have to take it that “consequential benefit” has been denied but only “continuity of service” is granted.
9. We may point out of O.P. No. 35110/2006 the learned Judge speaks of other benefits, which are due what are the other benefits, it is not clear since it is not provided in Exhibit P-4. We are therefore of the view that the learned Judge was not justified in holding that the petitioner is entitled to back wages and all other benefits, which are not stipulated in Exhibit P-4 order. However, considering the entire facts and circumstances of the case and the large number of litigations indulged in by the employee, we feel that the payment of a consolidated amount of Rupees Five Lakhs, would meet the ends of justice especially when there is no clear-cut evidence that he was gainfully employed during the period of termination and reinstatement, which will be paid within a period of three months from today.
Writ Appeal is allowed as above.