V.M.Sahai, Shishir Kumar - (1.) -The short question that arises for consideration in this writ petition is whether the expression 'other service benefits' would include arrears of salary?
(2.) THE petitioner was appointed in U. P. Police Force on 1.4.1992 as constable and after successful completion of training he was posted as Constable A. P. 30181 in XXIV Battalion P.A.C., Moradabad. He was deputed in the security duty at the Chief Minister's residence. In an incident that took place on 10/11.12.1994 in the night his service was terminated by the respondents. He filed Claim Petition No. 470 of 1995 before the U. P. State Public Service Tribunal, Lucknow. His claim petition was allowed on 30.3.1999 by the Tribunal. By the order dated 17.7.1999 the respondent No. 2 reinstated the petitioner in service but did not pay arrears of salary to the petitioner from 21.12.1994 to 17.7.1999 the date his service was terminated till the date of his reinstatement in service on the ground that the Tribunal had not passed any specific order with regard to payment of arrears of salary. THE petitioner filed Contempt Petition No. 649 of 1999 which was dismissed on 27.4.2005 by the Tribunal. THEreafter the petitioner filed an application for clarifying the order of the Tribunal dated 30.3.1999 before the Tribunal which too had been rejected as not maintainable by order dated 3.8.2005. THE petitioner has challenged the order of the Tribunal dated 3.8.2005 and has claimed arrears of salary. We have heard Sri S. P. Singh, learned counsel for the petitioner and Sri R. K. Saxena, learned standing counsel appearing for the respondents. Learned counsel for the petitioner has urged that since the Tribunal has set aside the termination order with all benefits of service, the petitioner is entitled for payment of arrears of salary and the Tribunal committed an error of law in rejecting the application of the petitioner as not maintainable. On the other hand, Sri R. K. Saxena, learned standing counsel has urged that the Tribunal had not passed any specific order with regard to payment of arrears of salary, therefore, the petitioner was not entitled for any arrears of salary. He has further urged that since the petitioner did not work from 21.12.1994, i.e., date of his termination till his reinstatement, he is not entitled for arrears of salary on the principle of 'no work and no pay'. The operative part of the order of the Tribunal dated 30.3.1999 by which the termination order passed against the petitioner had been set aside is extracted as under : "The claim petition filed by Sri Sandeep Kumar is hereby allowed. The impugned order of termination dated 21.12.1994 contained as Annexure-1 to the claim petition is hereby quashed and set aside as invalid in the eyes of law. The opposite parties are directed to treat the petitioner in continuous service maintaining his seniority for the purpose of confirmation, promotion and other service benefits as if the impugned order of termination was never passed. Let the opposite parties comply with the order within 3 months from the date of receipt of certified copy of the judgment. However, in the facts and circumstances of the case no costs is awarded to the petitioner."
(3.) WE have gone through the order of the Tribunal. It has recorded a finding that there was no sufficient justification for petitioner's termination. The termination order was bad in the eye of law and could not be sustained. The action of the respondents could not be defended and is liable to be quashed. The operative part of the judgment and order of the Tribunal quashes the termination order dated 21.12.1994 and states that the petitioner should be treated in continuous service maintaining his seniority for the purposes of confirmation, promotion and other service benefits as if the impugned order of termination was never passed, meaning thereby that the petitioner has to be treated all through in service. When an employee is completely exonerated meaning thereby he is not found blameworthy in the least, he has to be given the benefit of the salary from the date when he was prevented by the illegal action of respondents in terminating his service, though but for the termination, normally he would have earned his salary. Salary is an important incidence of service and no one can be deprived of it except in accordance with law. Where the Tribunal had found that the action of the respondents could not be defended, in such a situation arrears of salary cannot be denied on the principle of 'no work no pay'. Normally, where the Tribunal denies arrears of salary or part of it, it had to record reasons for doing so. WE do not find from the order of the Tribunal that it intended to deny arrears of salary to the petitioner. The expression used by the Tribunal "other service benefits" mean that apart from seniority, confirmation and promotion the petitioner would be entitled to all other service benefits which he would have been entitled if the termination order against him had not been passed. This would include increments, arrears of salary, revised salary. Learned standing counsel has placed reliance on the decision of the Apex Court in Yashbir Singh v. Union of India and others, (1998) 8 SCC 574 ; State of U. P. and others v. Atal Bihari Shastri and another, (1993) Suppl 2 SCC 207 and Bihar State Road Transport Corporation v. Kameshwar Prasad Thakur, 1990 (1) SCC 227. We have gone through all the three decisions. These decisions are distinguishable on facts. In the first decision of Yashbir Singh v. Union of India and another (supra) the Apex Court did not grant arrears of salary on the ground that the employee had not reported for duty during the pendency of the writ petition even under protest. In Atal Bihari Shastri's case the employee did not return to resume the duties of his office. In Kameshwar Prasad Thakur's case (supra) the Apex Court observed that this decision cannot be treated as precedent.;