Dr. Rohit Seth vs Guru Ghasidas Vishwavidyalaya

AFR

WPS No. 8387 of 2023

Dr. Rohit Seth S/o Mr. Rajendra Prasad Seth Aged About 47 Years R/o P/o A-13, MG Green Homes, Behind Atal Aawaas, Sakri Uslapur, District Bilaspur (C.G.)

... Petitioner versus 1 - Guru Ghasidas Vishwavidyalaya Through Registrar (Acting), Police Station Koni, District Bilaspur (C.G.)

2- Assistant Registrar (Administration) Guru Ghasidas Vishwavidyalaya, Through Registrar (Acting) Police Station Koni, District Bilaspur (C.G.)

3- Vice-Chancellor Ghasidas Vishwavidyalaya, Through Registrar, Police Station Koni, District Bilaspur (C.G.)

4- Finance Officer Guru Ghasidas Vishwavidyalaya, Through Registrar, Police Station Koni, District Bilaspur (C.G.)

... Respondents

The petitioner has filed the instant petition under Article 226/227 of the Constitution of India for setting aside the order dated 16.9.2023 (Annexure P/1) passed by respondent No.1, whereby back-wages for the period from 20.2.2013 to 14.6.2017 has been denied to the petitioner on the principle of ‘No Work, No Pay’, and also for direction to the respondent authorities to pay him all other consequential/service benefits of the period from 20.2.2013 to 27.4.2017 with interest @ 18% p.a.

Case of the petitioner, in brief, is that the petitioner was initially appointed on the post of Associate Professor in Zoology Department at Guru Ghasidas University, Bilaspur (in short “the University”) on 29.9.2011. During probation period, the petitioner was found guilty of neglect of obligations and duties, hence vide order dated 20.2.2013 passed by respondents No. 1 & 3, he was terminated from service in an unreasonable manner without following the due process of law. Being aggrieved, the petitioner challenged the order of termination by filing a petition i.e. WPS No.831/2013 before this Court. However, during pendency of the said writ petition, the termination order was revoked by the Hon’ble President of India in the capacity of Visitor of the University vide order dated 27.4.2017 and consequently, the petitioner was reinstated with retrospective effect from 20.2.2013. Despite reinstatement of the petitioner, the respondent authorities did not grant back-wages and other consequential service benefits to the petitioner for the period from 20.2.2013 to 27.4.2017 though he made several representations in this regard. Hence, the petitioner filed another writ petition i.e. WPS No.3649/2020 which was disposed of by this Court vide order dated 17.9.2020 (Annexure P/2) directing the respondent authorities to take decision regarding grant of service benefits to the petitioner within a period of two months from the date of receipt of copy of the order.

Even after aforesaid order being passed when the respondent authorities did not decide the issue regarding grant of service benefits to the petitioner, he filed a contempt petition i.e. Contempt Case No.753/2023 against respondents No. 1 & 3. However, during pendency of this contempt petition, the respondents filed their reply stating therein that they have passed order dated 16.9.2023 (Annexure P/1) whereby grievance of the petitioner is considered and decided. Thus, on the basis of reply filed by respondents No. 1 & 3, this Court disposed of the said contempt petition vide order dated 19.9.2023 (Annexure P/3). Hence this petition for the following relief:

Learned senior counsel appearing for the petitioner would submit that in compliance of the order dated 12.4.2017 (Annexure R/1) passed by the Hon’ble Visitor/President of India, service of the petitioner was revoked from the date of his termination i.e. from 20.2.2013 which was communicated to the petitioner vide order dated 27.4.2017 (Annexure R/2). Thereafter, the petitioner joined his service on the post of Associate Professor on 14.6.2017. Learned senior counsel would further submit that the petitioner was terminated from service during the probation period without following the due procedure/rules, therefore, his termination has been revoked by the Hon’ble Visitor. Since the petitioner was restrained from discharging his duties by way of his illegal termination by the respondents/University, he was deprived from getting monetary benefits arising from the said service and during the period of his termination, he was not gainfully employed anywhere, he is entitled to get the back-wages of this period i.e. from 20.2.2013 to 14.6.2017. He would submit that back-wages cannot be denied to the petitioner only on the principle of ‘No Work, No Pay’ as the petitioner was deprived from doing his job without following the due process of law/rules, as has been observed by the Hon’ble Visitor in the order dated 12.4.2017 (Annexure R/1). In support of his contention, reliance has been placed on the decision of the Hon’ble Supreme Court in the matter of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others, (2013) 10 SCC 324 and the order dated 9.7.2021 of this Court in WPS No.994/2010 in the matter of Shankar Lal Soni (died) through LRs Vs. State of CG and others and the order of this Court in the matter of Sarwan Kumar Vs. Steel Authority of India Ltd., Bhilai Steel Plant, 2023 Supreme (Chh) 656.

The respondents have filed their reply. Learned senior counsel appearing for the respondents, referring to their reply, would submit that prior to filing of the instant petition and prior to reinstatement, the petitioner had filed two writ petitions i.e. WPS Nos.831/2013 and 1707/2014 challenging his termination and for grant of service benefits respectively. In those writ petitions, the petitioner had not sought any relief for grant of back-wages. Even in subsequent writ petition i.e. WPS No.3649/2020, the petitioner had not sought any relief of back-wages. Therefore, at this belated stage, he cannot be permitted to claim back-wages.

Learned senior counsel further submits that vide order dated 12.4.2017 (Annexure R/1), the Hon’ble Visitor has also not granted back-wages to the petitioner. He submits that to seek back-wages, the petitioner ought to have specifically pleaded and proved by way of evidence that during his termination period, he was not gainfully employed anywhere but in the instant petition, the petitioner has not proved it by adducing evidence and only made bald statement that during the period of termination, he was not employed anywhere. Hence the Executive Council has not committed any error in law in rejecting the claim of the petitioner for back-wages vide Annexure P/1.

Learned senior counsel would next submit that the observation made by the Hon’ble Apex Court in the case of Deepali Gundu Surwase (supra) has been discussed in the case of Management of Regional Chief Engineer, Public Health and Engineering Department, Ranchi Vs. Their Workmen represented by District Secretary, (2019) 18 SCC 814, wherein the Hon’ble Apex Court has held that to claim back-wages, it is necessary for the workman to plead and prove with the aid of evidence that after his dismissal from service, he was not gainfully employed anywhere and had no earning to maintain himself or his family. This is what has been earlier held by the Hon’ble Supreme Court in the matter of Rajasthan State Road Transport Corporation, Jaipur Vs. Phool Chand (dead) through LRs, (2018) SCC 299. He also placed reliance upon the decision of the Hon’ble Supreme Court in the matter of Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar Seal, (2010) 6 SCC 773 wherein it is held that reinstatement with back wages is not automatic even if a worker's termination or retrenchment is found illegal or violates procedural rules.

Heard learned counsel for the parties and perused the material available on record.

It is well settled principle of law that back-wages cannot be claimed as a matter of right, rather it can be granted by the Court in the facts and circumstances of each case. In the present case, the petitioner's termination dated 20.02.2013 stood revoked by the Hon'ble Visitor (President of India) vide order dated 12.04.2017, and he was reinstated with retrospective effect. Thus, the petitioner's termination was not sustainable in law. Since the order of termination was revoked and the petitioner was reinstated retrospectively, he is entitled to continuity of service for all service purposes, including seniority, increments, leave, pensionary benefits, and other consequential service benefits.

It is a settled principle that reinstatement does not ipso facto entitle an employee to full back-wages. Grant of back-wages depends upon the facts of each case, including the nature of termination, delay, conduct of parties, and whether the employee was gainfully employed during the intervening period. Though the petitioner has pleaded that he was not gainfully employed during the period of termination, no cogent material has been placed on record to substantiate the plea. The Hon’ble Apex Court in the matter of Deepali Gundu Surwase (supra) held in paras 38 to 38.3 as under:

It is not in dispute that the petitioner's termination was wholly illegal and that he was prevented from discharging his duties for no fault of his own. The petitioner specifically pleaded in the writ petition that he was not gainfully employed during the termination period. This pleading was supported by a verified affidavit and the respondents/University failed to adduce evidence that he was gainfully employed. The employee is not required to prove a negative fact by independent evidence in every case. In Deepali Gundu Surwase (supra), the Hon’ble Supreme Court clarified that ordinarily an employee seeking back-wages must plead or at least make a statement on oath that he or she was not gainfully employed. Once that is done, the burden shifts to the employer to plead and prove gainful employment if it wants to resist full-back wages. In the instant case, the petitioner has made only flimsy statement that during the said period, he was not in gainful employment but he has nowhere pleaded as to what was his means of survival or source of earning during this period to maintain himself and his family, however, balancing equities and considering the absence of evidence regarding non-gainful employment, instead of awarding 100% back-wages, this Court is of the opinion that ends of justice would be served by awarding 50% back-wages to the petitioner for the intervening period.

On the basis of aforesaid discussions and for the reasons stated above, the writ petition is allowed in part. The impugned order dated 16.09.2023 (Annexure P/1) is hereby quashed and set aside to the extent it rejects the petitioner's claim for back-wages. The petitioner shall be entitled to 50% of the back-wages for the period from 20.02.2013 till 14.6.2017. The said amount of back-wages shall be payable to the petitioner by the respondents/University within a period of 60 days from today or else it shall carry interest @ 9% per annum from the date of expiry of the said period till the date of actual payment. No order as to cost(s).

Pending interlocutory application(s), if any, shall also stand disposed of.

Sd/