Firdous Ahmad Giri vs The U.T of J & K & Ors.

Per: - Ram Mohan Johri, Administrative Member

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -

The facts of the case as averred by the applicant in his pleadings, are as follows: -

The respondents have filed their written statement wherein they have averred as follows: -

We have heard learned counsel for the parties and have carefully gone through the pleadings and material available on record. The controversy which arises for consideration is whether the applicant, who remained out of service from 09.12.2013 to 02.07.2018 consequent upon his dismissal from service, can claim full salary and allowances for the said period merely because the dismissal order was subsequently set aside on procedural grounds and the period was thereafter ordered to be treated as duty for service purposes.

The factual position is substantially undisputed. The applicant, while serving in the Railway Police, was subjected to departmental proceedings on account of certain entries made by him in the Daily Diary of GRP Post Pattan containing allegations against senior police officers. The departmental enquiry culminated in his dismissal from service vide Order No. 484 of 2013 dated 09.12.2013. The applicant remained out of service pursuant to the said order until his reinstatement on 02.07.2018.

It is also borne out from the record that the dismissal order was subsequently set aside vide PHQ Order No. 2717 of 2018 dated 30.06.2018 and a de novo enquiry was ordered. The setting aside of the dismissal order was essentially occasioned by procedural infirmities noticed in the earlier disciplinary proceedings, including the issue regarding the disciplinary authority and non-observance of the requisite procedure/principles of natural justice. Significantly, the setting aside of the dismissal order did not amount to an adjudication that the applicant was completely innocent of the misconduct alleged against him.

In the de novo enquiry, the applicant was not completely exonerated. The Enquiry Officer, after examining the matter, recommended forfeiture of one annual increment for a period of one year. The Enquiry Officer further recommended that the period from 09.12.2013 to 02.07.2018, during which the applicant remained out of service, be treated as dies non on the principle of "no work, no pay." Thus, the subsequent disciplinary proceedings also resulted in an adverse consequence against the applicant and did not culminate in his honourable or complete exoneration.

It is true that Police Headquarters, while considering the findings of the Enquiry Officer, passed Order No. 1726 of 2020 dated 15.06.2020 and, while maintaining the punishment of forfeiture of one annual increment for a period of one year, directed that the period from 09.12.2013 to 02.07.2018 be treated as period spent on duty. The said order further provided that sanction for payment of dues for the aforesaid period was to be obtained from the Government/Home Department. Subsequently, Police Headquarters calculated the dues at approximately Rs.35.031 lakh and forwarded the proposal to the Home Department for sanction.

However, in our considered view, the expression "treated as duty" cannot, in the facts of the present case, be construed as conferring an automatic and indefeasible right upon the applicant to receive full back wages for the entire period during which admittedly no service was rendered by him. Treatment of an intervening period as duty for purposes such as continuity of service, seniority, qualifying service, pension and other permissible service benefits is conceptually distinct from an unconditional entitlement to actual salary for a period during which the employee did not discharge duties. This distinction assumes greater significance where the employee has not been honourably exonerated in the disciplinary proceedings.

The principle of "no work, no pay" is a well-recognised principle governing service jurisprudence. Though it is not an inflexible rule admitting of no exception, grant of back wages necessarily depends upon the facts and circumstances of each case. Full back wages cannot follow mechanically merely because an order of dismissal has subsequently been set aside. Relevant considerations include the nature of the order by which dismissal was set aside, whether the employee was exonerated on merits, whether the disciplinary proceedings ultimately established misconduct, and whether the employee actually rendered service during the period for which wages are claimed.

Tested on the aforesaid parameters, the applicant’s claim for full salary for a period exceeding four and a half years cannot be accepted as an automatic consequence of his reinstatement. The applicant admittedly did not discharge any official duties between 09.12.2013 and 02.07.2018. More importantly, the earlier dismissal was not set aside upon a finding that the allegations against him were wholly false or that he was completely exonerated. A de novo enquiry was specifically ordered and the subsequent proceedings ultimately resulted in imposition of the penalty of forfeiture of one annual increment. The applicant, therefore, cannot claim the same position, for purposes of actual back wages, as an employee who was completely and honourably exonerated of all charges.

The contention that Police Headquarters had recommended release of Rs.35.031 lakh also does not advance the case of the applicant. The order dated 15.06.2020 itself contemplated that sanction for payment of the dues was required to be obtained from the Government/Home Department. The proposal forwarded by Police Headquarters was, therefore, subject to consideration and approval by the competent authority and cannot be elevated to the status of a vested or accrued right to payment. Mere calculation of an amount by the Accounts Section or forwarding of a proposal for sanction does not, by itself, create an enforceable right in favour of an employee when the competent sanctioning authority has not approved such payment.

The Home Department, being the authority from whom sanction was specifically required, examined the proposal and vide communication No. Home/ACC01/15/2021-FIN-HOME (CC-102032) dated 06.05.2022 declined to agree to the proposal of Police Headquarters. In the peculiar facts of the case, such decision cannot be termed arbitrary merely because it differs from the recommendation forwarded by Police Headquarters. A recommendation is, by its very nature, subject to acceptance by the competent authority unless the governing rules provide otherwise. No material has been brought before us demonstrating that the Home Department was statutorily bound to sanction the amount merely because Police Headquarters had forwarded the proposal.

There is another important aspect. Acceptance of the applicant’s contention would virtually result in payment of full salary and allowances for a period of about four years and six months during which no duties were actually performed, notwithstanding the fact that the disciplinary proceedings ultimately did not culminate in his complete exoneration. Such a consequence cannot be directed as a matter of course. The principle of "no work, no pay" cannot be displaced merely on the basis of an administrative recommendation, particularly when the applicant’s entitlement to actual back wages was expressly dependent upon sanction by the competent Government authority.

We are conscious that the applicant remained away from service pursuant to the dismissal order and not voluntarily. Nevertheless, that circumstance alone cannot confer an absolute right to full back wages. The nature and outcome of the subsequent proceedings are equally material. Had the applicant been completely exonerated and the disciplinary action been found wholly unjustified on merits, the matter might have stood on a different footing. In the present case, however, the de novo enquiry ultimately resulted in punishment, and therefore the applicant cannot claim full back wages as an inevitable consequence of reinstatement.

Judicial review of an administrative decision does not permit the Tribunal to substitute its own view for that of the competent authority merely because another view is possible. Interference would be justified where the decision is shown to be contrary to the governing statutory provisions, vitiated by mala fides, based upon irrelevant considerations, or manifestly arbitrary. No such ground has been established in the present case. Nor has any specific statutory provision been demonstrated before us which mandates payment of full salary for the intervening period in the circumstances obtaining herein.

We, therefore, find no legally enforceable right in favour of the applicant for issuance of a mandamus directing respondent No.1 to sanction and release Rs.35.031 lakh merely on the strength of the proposal/recommendation made by Police Headquarters. The treatment of the intervening period as duty may enure to the applicant for such service benefits as are otherwise admissible under the applicable rules, but the same cannot, in the peculiar facts of the present case, be construed as an unconditional direction for payment of full salary and allowances for the period during which he did not actually work.

Consequently, we find no sufficient ground to interfere with communication/order No. Home/ACC01/15/2021-FIN-HOME (CC-102032) dated 06.05.2022 whereby the competent authority declined to accord sanction to the proposal for payment of Rs.35.031 lakh. The prayer for issuance of a direction commanding the respondents to release the said amount is equally devoid of merit.

In view of the foregoing discussion, the Original Application is dismissed, being devoid of merit. The impugned communication/order dated 06.05.2022 is upheld. It is, however, clarified that dismissal of the present Original Application shall not disturb the continuity of service or such other notional/service benefits flowing from Order No. 1726 of 2020 dated 15.06.2020 as may otherwise be admissible to the applicant under the applicable rules, save and except the claim for actual back wages which is the subject matter of the present proceedings.

There shall be no order as to costs.