- (1.) PANKAJ Mithal, J. The one and the only question which arises and has been raised in this petition under Article 226 of the Constitution of India is whether the petitioner whose termination was set aside is entitled to back wages for the period from the date of his termination till his reinstatement even though he had not worked during this period.
(2.) THE petitioner-Ali Hussain has joined PAC on 27-10-1966. On 22-5-1973 a case crime No. 506/73 was registered against him on account of his participation in the PAC revolt of 1973. In the Sessions Trial No. 556/74 State v. Ram Awadh and Ors. , the petitioner was acquitted on 23-12-1981 of the criminal charges. THE State Government filed an appeal No. 2262/82 against his acquittal. THE appeal was dismissed by the High Court vide judgment and order dated 21-12-1992. Further, the S. L. P. of the State Government in the Hon'ble Supreme Court was also dismissed on 4-8-1994. In the meantime due to his involvement in revolt, the Inspector General of PAC, Bareilly dismissed him from service on 14-11-1973. THE termination order was challenged by the petitioner before U. P. State Public Services Tribunal. THE claim of the petitioner was dismissed on 20-1-1981. Against the order of the Tribunal, the petitioner filed a writ petition No. 8063/81. THE said writ petition was partly allowed by the High Court vide judgment and order dated 18-3-1998. THE High Court set aside the order of the Tribunal dismissing the claim of the petitioner and quashed the order of dismissal of the petitioner dated 14-11-1973 with the direction to reinstate the petitioner in service within two months but no direction was given for payment of back wages rather the matter of payment of back wages was relegated for decision to the State Government i. e. Dy. Director General of PAC, Lucknow. In pursuance of the order of High Court, the petitioner was reinstated on 7-10-1998 and his representation for back wages from 14-11-1973 up to 7-10-1998 was rejected vide order dated 20-2-2003 on the ground that since the petitioner had not worked during the aforesaid period he is not entitle for any back wages. The petitioner has, therefore, challenged the order dated 20- 2-2003 rejecting his representation for back wages and has prayed for payment of back wages for the period 14-11-1973 to 7-10-1998. The petitioner by an amendment which was allowed on 3-7-2006 has also challenged the Government Order dated 15-4-2004 which provides for non-payment of back wages to all PAC personal whose services were terminated on account of their participation in the PAC revolt of 1973 but were subsequently reinstated on the principle of 'no work No pay'. I have heard Sri Bipin Bihari, learned Counsel appearing for the petitioner and learned Standing Counsel.
(3.) LEARNED Counsel for the petitioner has argued that once the termination order of the petitioner has been set aside on merit, the petitioner is entitled to be reinstated in service with full back wages and there is no justification for denying the payment of back wages as there was no fault on the part of the petitioner. LEARNED Counsel for the petitioner further contended that in similar circumstances in a very large number of cases relating to PAC revolt of 1973 'itself many of the employees have been reinstated with full benefits of service and back wages. Therefore, the action of the respondents in not awarding back wages to the petitioner is arbitrary and discriminatory in nature. On the other hand, learned Standing Counsel has submitted that the petitioner has not worked for the period from 14-11-1973 to 7- 10-1998 and, therefore, he cannot be paid back wages for the said period. Moreover, the petitioner has no where pleaded in the writ petition that he was not gainfully employed elsewhere during that period and as such he is not entitle to any relief with regard to back wages. LEARNED Standing Counsel has placed reliance upon two decisions of this Court wherein in respect of PAC revolt of 1973 similarly situate employees were refused relief with regard to payment of back wages. The law with regard to the payment of back wages on reinstatement has under gone a sea change. Previously, direction to pay full back wages on reinstatement use to be a regular feature. However, lately a pragmatic approach had been adopted and it has been laid down that the payment of full back wages is not mechanical and automatic and no precise formula can be laid down for awarding back wages and it would depend upon the facts and circumstances of each case. Hon'ble Supreme Court in one of the latest decision State Brassware Corporation Ltd. and Anr. v. Udai Narain Pandey, AIR 2006 SC 586, after considering all previous decisions in this regard observed that the payment of full back wages which used to be normal result of reinstatement is not automatic nor it should be granted mechanically only for the reasons that the termination was held to be invalid. A similar view was expressed by Hon'ble Supreme Court in M. L. Binjolkar v. State of Madhya Pradesh, 2005 (3) LBESR 309 (SC) : JT 2005 (6) SC 461, wherein it was observed as follows: "the earlier view was that whenever there is interference with the order of termination or retirement, full back-wages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors and the Court has to weigh the pros and cons of each case and to take a pragmatic view. . . . . ";