- (1.) R. R. K. Trivedi, J. This special ap peal is from judgment and order dated 27th July, 1995 passed by learned single Judge in Civil Misc. Writ Petition No. 5518 of 1985 by which appellants have been directed to reinstate petitioner-respon dent herein on the post of senior clerk with all consequential benefits. Appellants have also been directed to pay arrears of salary to petitioner.
(2.) THE facts giving rise to this special appeal are that the petitioner respondent J. N. Tripathi was employed in Banaras Hindu University (hereinafter referred to as 'university') as Junior Clerk on 14th June, 1964. On 1st March, 1973, he was promoted as senior clerk. On 1st March 1975, he was confirmed as senior clerk. On 20th July, 1976, petitioner was placed under suspension having been involved in a criminal case under Section 408/477-A, I. P. C. He was tried for the aforesaid of fence in Criminal Case No. 125'' of 1979 and was convicted and sentenced to one year's R. I. by trial Court. However, respondent challenged the conviction and sentence in Criminal Appeal No. 483 of 1982 which was allowed on 11th July, 1983 and the respondent was acquitted of the charges with the finding that the prosecu tion has failed to establish any case against him. On appeal being allowed, petitioner filed an application "on nth July, 1983 before the University authorities and prayed for revocation of the order of suspension and for remstaifcinent but when no action was taken, petitioner filed Civil Misc. Writ Petition No. 9667 of 1984 for directing the University to decide the representation of petitioner-respondent. However, by order dated 17th December, 1984 petitioner-respondent was ter minated froir. service and the order was maintained by the Executive Council by order dated 20/22nd June, 1985, petitioner-respondent then filed Civil Misc. Writ Petition No. 5518 of 1985 chal lenging order dated 17th December, 1984 and resolution dated 20/22nd June, 1985. THE writ petition has been allowed by learned Single Judge by order dated 27th July 1995. THE operative part of the order reads as under: - "the writ petition succeeds and is allowed with costs. THE impugned orders dated 20/22-6-84 and 17- 12-1984 are quashed. Respondents are directed to reinstate the petitioner on the post of senior clerk with all consequential benefits. THEy are further directed to pay the arrears of salary to the petitioner. " Aggrieved by the aforesaid order, the appellants have filed the present special appeal. In this appeal the challenge has been confined to the direction of the learned Single Judge, by which he directed to pay arrears of salary to the petitioner. It has been submitted by the learned counsel for the appellants that the petitioner respondent has already retired in the month of November, 1995. Learned coun sel for the appellants has submitted that in proceedings under Article 226 of the Con stitution of India, the order of termination or dismissal could only be quashed and the learned Single Judge could not give a direction to pay back wages. It is submitted that while exercising supervisory jurisdic tion under Article 226 of the Constitution, such order cannot be passed if the dismiss al or termination is found illegal. The Court can simply quash the same and should not give a direction for payment of full back wages as done in the present case. It has also been submitted that the Univer sity is a public body and if the aforesaid direction of the learned Single Judge for payment of the back wages is not set aside, the University shall be saddled with the liability to pay a huge amount of about 8 lacs towards, the payment of the back wages and the petitioner-respondent shall be paid the aforesaid amount though he has no t worked for a single day on the post. Learned counsel has submitted that the public money should not be allowed to be paid in this manner and it is expedient to protect the public interest. Learned coun sel has placed reliance in case of The Managing Director, U. P. Warehousing Cor poration and others v. Vijay Narayan Vaj payee, AIR 1980 SC 840; Piara Lal v. State of Punjab, (1990) Supp, SCC 754; Tarlochan Singh v. Punjab State Warehousing Corpn. and others, (1991) Supp. SCC 290; State of U. P. and another v. Atal Behari Shastri and another, (1993) Supp. (2) SCC 207; Surjit Ghosh v. Chairman and Managing Director United Commercial Bank and others, (1995) 2 SCC 474; Paluru Ramkrishnaiah and others v. Union of India and another, (1989) 2 SCC 541; Chairman, Governing Council Anjuman Arts Commerce and Science and Ors. V. Sayyed Mohammad Shaft, JT (1996) 1 SC 326 and U. P. Co-operative Spinning Mills Federation Ltd. v. Pukh Raj Mantri, (1995) 1 UPLBEC 442. Learned counsel for the respon dent, on the other hand, has submitted that the petitioner respondent was always willing to on the post. On being acquitted by the superior criminal Court on 11th July, 1983 petitioner immediately offered himself for joining the post and for resum ing the work by making an application dated 13th July, 1983 but the respondents did not take any action on his repre sentation. Consequently he was com pelled to the file Civil Misc. Writ Petition No. 9667 of 1984 seeking direction from this Court to decide the representation but in spite of the aforesaid direction is sued by this Court, petitioner was dis missed in arbitrary manner in clear viola tion of the provisions of law on 17th December, 1984 and this order was upheld by the Executive Council by resolution dated 20/22nd June, 1985. There is no al legation or material on record showing that the petitioner was ever employed gainfully during the period he was not al lowed to work on the post of senior clerk and in these circumstances, the learned Single Judge has rightly awarded the back wages. Normal rule is that if the order of termination, removal or dismissal is set aside the employee becomes entitled for his wages which he was deprived in conse quence of the order which has been set aside or quashed. Learned counsel has submitted that the petitioner-respondent cannot be said at fault at any stage and he cannot be penalised for illegal action on the part of the employer. Learned counsel has also submitted that the petitioner has been kept put of service since 20th July, 1976 and he has not been paid his salary. He has also been deprived of his benefit of promotion etc. which he would have been entitled to receive during these periods. Learned counsel has submitted that the order of the learned Single Judge directing payment of arrears of salary does not suf fer from any illegality or arbitrariness and this Court in appeal should not interfere with the order which subserves the ends of justice in the facts and circumstances of the case. Learned counsel has placed reliance in cases of Hindustan Tin Works v. In Employees, AIR II79 SC 75; Manama Verma (Smt.) v. State of Bihar and others, (1994) Supp. (3) SCC 671 and one uncer tified copy of thejudgment dated llth Ajpril, 1994 given in Special Appeal No. 142 of 1993, Prabhu Narain Rai and another v. Secretary-cum-General Manager, District Co operative Bank Limited, Jhansi and others, and Special Appeal No. 112 of 1993, Secretary-cum-General Manager, District Co-operative Bank Ltd. Jhansi v. Prabhu Narain Rai and others.
(3.) WE have carefully considered the rival contentions advanced by the learned counsel for the parties and have also gone through the cases cited before us. The learned Single Judge while deciding the writ petition has recorded a finding for awarding the back wages to the following effect: - "petitioner never refused to discharge his duties. On the other hand, respondents themsel ves did not permit him to work. In Hindustan Tin Works v. Its Employees, AIR 1979 SC 75, the apex Court of the country was pleased to hold that "if the workmen were always ready to work, but they were kept away therefore, on account of invlaid act of the employer, there is no jus tification for not awarding them full back wages, which were very legitimately due to them. " Therefore, the impugned orders, in view of the discussions made above, were invalid and in operative in law. Petitioner will be entitled to receive arrears of salary. " However, the learned Single Judge failed to note that the Hon'ble Supreme Court in the aforesaid judgment was ex amining the legality of the award given by the labour Court which accepted the claim of the workmen and had awarded 75% of the back wages. The aforesaid judgment of the Apex Court thus cannot be a safe guide for the cases in hand. In case of. Managing Director. U. P. Ware housing Corporation and others v. Vijay Narayan Vajpayee, AIR 1980 SC 840 Hon'ble Supreme Court has observed as under: - "it must be remembered that in the exer cise of its ceniorari jurisdiction under Article 226 of the Constitution, the High Court acts only in a supervisory capacity and not as an appellate tribunal. It does not review the evidence upon which the inferior tribunal proposed to base its conclusion, it simply demolishes the order which it considers to be without jurisdiction or manifestly erroneous, but does not, as a rule, substitute its own view for those of the inferior tribunal. In other words, the offending order or the impugned illegal proceeding is quashed and put out of the way as one which should not be used to the detriment of the writ petitioner. Thus, in matters of employment, while exercisinf its supervisory jurisdiction under Article 226 of the Constitu tion, over the orders and quasi-judicial proceed ing of an administrative authority not being a proceeding under the industrial/labour law before an industrial/labour tribunal culminating in dismissal of the employee, the High Court should ordinarily, in the event of the dismissal being found illegal, simply quash the same and should not further give a positive direction for payment to the employee full back wages (al though as a consequence of the annulment of the dismissal, the position as it obtained immedi ately before the dismissal is restored), such peculiar powers can properly be exercised in a case where the impugned adjudication or award has been given by an Industrial Tribunal or Labour Court. The instant case is not one under Industrial/labour Law. The respondent-employee never raised any industrial dispute, nor invoked the jurisdiction of the Labour Court or the Industrial Tribunal. He directly moved the High Court for the exercise of its special jurisdiction under Article 226 of the Constitution for challenging the order of dis missal primarily on the ground that it was vioiative of the principles of natural justice which required that his public employment should not be terminated without giving him a due oppor tunity to defend himself and to rebut the charges against him. Further-more, whether a workman or employee of a statutory authority should be reinstated in public employment with or without, back wages is a question of fact depending on evidence to be produced before the tribunal. If ;iftei- the termination of his employment the workman/employee was gainfully employed elsewhere, that is one of the important factors to be considered in determining whether or not the reinstatement should be with full back wages and with continuity of employment. For these two fold reasons, we are of opinion that the High Court was in error in directing payment to the employee full back wages. ";