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Judgment
Prabha Sridevan, J.—The writ petitioner was appointed as Lower Division Clerk on 03.09.1959 in Chennai Corporation and subsequently
promoted as Upper Division Clerk. Thereafter, he was promoted as Assistant Cashier and Head Cashier with effect from 17.08.1973. He applied
for extra-ordinary leave on medical grounds on 20.01.1992 for one month. According to the writ petitioner, this was not accepted by the
Corporation and leave was not sanctioned. He applied for voluntary retirement by giving three months'' notice on 01.09.1992 to retire with effect
from 01.12.1992. He also applied for earned leave for three months from 01.09.1992 to 30.11.1992. His application for voluntary retirement was
also refused. Two Enquiry Officers were appointed to enquire into the charge regarding issue of bogus chalans. The proceedings concluded with
an order for recovery of double the sum for which bogus chalans were issued. Against the refusal of leave as well as voluntary retirement, the writ
petitioner filed an appeal. It was kept pending for six months. The writ petitioner prayed for regularisation of the leave period. In the mean time, a
charge memo was issued for alleged unauthorised absence and the writ petitioner filed his representation. An Enquiry Officer was appointed and
report was submitted. A show cause notice was issued based on the provisional conclusion for dismissing the petitioner. The petitioner filed his
explanation. No orders were passed for one year and on 16.02.1996, he was removed from service and therefore, he filed Writ Petition No.
2264 of 1996. The writ petition was dismissed, against that, Writ Appeal No. 898 of 1997 was filed. The First Bench of this Court passed the
following order:
This order is passed with the consent of both the parties.
Learned Counsel for the respondents states that they are ready and willing to consider the case of the appellant and reduce the quantum of
punishment. In view of the stand taken by the respondents, the impugned order is set aside. The writ appeal is allowed and the matter is remitted to
the respondents for fresh consideration with respect to the quantum of punishment. The appropriate authority will pass the order with respect to the
punishment.
Thereafter, a review application was filed and the words ""This order is passed with the consent of both the parties"" were deleted. After that, on
26.09.2002, treating his period of absence as unauthorised and reducing his pay to the minimum of the revised time scale of pay, an order in G.O.
(D) No. 392, Municipal Administration and Water Supply (Corporation-3) Department, was passed by the first respondent. Against this, Writ
Petition No. 40801 of 2002 was filed. By a short order, this writ petition was disposed of, which reads as follows:
The pay of the individual is reduced to the minimum of the revised time scale of pay of Rs. 6,500-200-10500 i.e. Rs. 6,500/- w.e.f. 16.2.1996.
The period of his absence and unauthorised absence from 20.1.1992 and from 1.2.1992 to 15.2.1996 respectively is treated as follows:
ii) 1.2.92 to 15.2.96 - Extraordinary Leave without MC and
iii) the period from 16.2.1996 to 29.2.1996 (i.e.) from the date of issue of orders of removal from service to the date of attaining the age of
superannuation is treated as Earned Leave.
The petitioner was employed in the Corporation of Madras. He was unauthorisedly absent for a period of nine months. Consequently, charge
memo was issued to the petitioner and an enquiry was conducted. The Enquiry Officer gave his findings that the charge was proved. Hence, the
petitioner was removed from service.
In W.A. No. 898 of 1997 preferred by the petitioner, the punishment of removal from service was set aside and the respondents were directed
to take a fresh consideration regarding the quantum of punishment, pursuant to this direction, the impugned order has been passed.
Learned Counsel for the petitioner submits that his time scale of pay was reduced to Rs. 6,500-200-10,500 w.e.f. 16.2.1996 and the petitioner
was retired from service on 29.2.1996 and before passing the impugned order, the petitioner was getting around Rs. 8,550/- as basic salary.
5.There is no doubt that the authorities are empowered to dismiss the persons from service or retire the persons compulsorily or any other
punishment in accordance with the service rules, but they cannot reduce the salary to the minimum in the time scale of pay as one of punishment,
which is not specified in any of the service rules. Hence, the impugned order is set aside in so far as it relates to the reduction of time scale of pay,
which is not legally sustainable.
According to the writ petitioner, his terminal benefits were not granted. Therefore, a contempt petition in Cont. Petn. No. 977 of 2007 was
filed. The contempt petition was dismissed as follows:
Prima facie, I am of the view that the contempt proceedings can be invoked only when a specific direction of this Court has been flouted or
disobeyed with malicious intention for extraneous reason. Here is a case in which the relief granted to the petitioner is setting aside that portion of
the punishment as stated above. There is no reference whatsoever about the consequential benefits. In such circumstances non-granting of the
consequential benefits, which has been projected for maintaining the contempt petition, cannot be allowed to sustain.
Thereafter, this writ appeal was filed. Learned Counsel for the appellant submitted that the authorities unjustifiably proceeded the disposal of the
appeal and his leave application and so, the petitioner had been put to untold misery. The order of dismissal and the order reducing his pay to the
lower time scale of pay have been set aside by the Court. In these circumstances, the authorities must grant him the entire arrears of back wages
and the pensionary benefits accordingly. Learned Counsel submitted that the authorities have paid the retirement benefits as per the order passed in
the writ petition, but for the period of absence, which should have been ultimately regularised, they have not given the back wages nor have they
calculated and paid the pension payable. Learned Counsel produced the proceedings dated 10.06.2008, by which the reduction of time scale of
pay has been set aside and the petitioner has been informed that revised pension would be disbursed after his pay is revised.
On behalf of the Corporation, it is contended that a person, who has been absent unauthorisedly for more than four years, cannot demand as of
right that the entire back wages should be paid. It was also submitted that the finding regarding the misconduct viz., unauthorised absence, has not
been set aside till date and therefore, there is no question of condoning the entire period of absence and rewarding the petitioner for being absent.
We have gone through the papers and we have to accept the submission made on behalf of the Corporation-first respondent herein, that at no
stage, this Court had set aside the findings regarding unauthorised absence. Therefore, the petitioner/appellant is not entitled to seek the entire back
wages for the period, during which he was absent. But, however, we find some merit in the submissions made on behalf of the appellant that the
matter was dragged for a long period, which was not entirely the fault of the petitioner. In these circumstances, we think, it would be appropriate to
balance the equities.
In 2008 (2) SCC (L&S) 577 (St. Michael''s Teacher''s Training Institute v. V.N. Karpaga Mary and Ors.), the Supreme Court confined the
quantum of back wages to 75%. The relevant paragraph reads as follows:
The question that the appellant was amenable to writ jurisdiction is not in dispute. If it was amenable to writ jurisdiction, the High Court was
not only entitled to set aside an order of termination of service on an interpretation that neither the GOMs had any retrospective application nor, in
any event, had any application to the case of appointment of the respondent but also to grant back wages. On the said premise, the High Court
had the jurisdiction to set aside the order of termination. Once the order of termination was set aside, the logical corollary therefore should
ordinarily ensue, subject of course to denial of the benefit either in totality or in part. It was in the aforementioned situation, the question of grant of
back wages would arise.
In A.P.S.R.T.C. and Another Vs. S. Narsagoud, , which was also a case, where the employee had been absent for a long period, the Supreme
Court directed that there should be no payment for the period of absence. The relevant paragraphs read as follows:
The only submission made by the learned Counsel for the appellant is that when an employee remains unauthorisedly absent from duty and
though he has been directed to be reinstated with continuity of service by a judicial order, unless and until there is a direction for release of
consequential benefits and specifically for the benefit of increments being given which the employee might have earned during the period of
unauthorised absence from duty merely because the employee has been allowed the benefit of continuity of service the benefit of such increments
cannot be released to him. The benefit of continuity of service only means that for the purpose of seniority and pensionary benefits the period of
absence shall be taken into account as spent on duty, submitted the learned Counsel for the appellant. In support of his submission he has also
invited our attention to the provisions of the Andhra Pradesh State Road Transport Corporation Employees (Pay and Allowances) Regulations,
1964 and a circular issued thereunder by A.P. SRTC.
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However, it appears that consequent upon the judgment of the learned Single Judge dated 16-8-1999 and other similar judgments disposing of
the writ petitions, the Corporation was compelled to issue another circular whereby it directed that in view of the said judgments of the High Court
it was necessary that in a case where an employee was directed to be reinstated with continuity of service the pay of the employee shall be refixed
by giving notional increments for the period out of service though the monetary benefit of revised fixation shall be given only from the date of
reinstatement. The effect of the judgment of the learned Single Judge, upheld by the Division Bench and the circular issued consequent upon the
judgment of the High Court is that the employee being reinstated, in spite of having been held guilty of unauthorised absence from duty, continues
to earn increments though there is no payment of wages for the period of absence. This results in an incongruous situation, submitted the learned
Counsel for the appellant.
We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for
continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the
consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the
benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorised absence
from duty cannot claim the benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific direction
in that regard and merely because he has been directed to be reinstated with the benefit of continuity in service.
The Regulations referred to hereinabove clearly spell out that the period spent on the extraordinary leave or leave without pay or a period of
overstayal after the expiry of leave or joining time cannot count towards increments unless the order of the competent authority sanctioning the
extraordinary leave or leave without pay or the order commuting the period of overstayal into extraordinary leave or leave without pay is
accompanied by a specific order to count the period for increments. A period of unauthorised absence from duty treated as a misconduct and held
liable to be punished by way of penalty cannot be placed on a footing better than the period of extraordinary leave or leave without pay or a
period of overstayal. Ordinarily, the increments are earned on account of the period actually spent on duty or during the period spent on leave, the
entitlement to which has been earned on account of the period actually spent on duty. The direction of the High Court entitling the respondent to
earn increments during the period of unauthorised absence from duty though held liable to be punished in departmental inquiry proceedings would
amount to putting a premium on the misconduct of the employee.
Though no such Regulation has been brought to our notice, we think this would be the proper order for a person, who has been absent without
justification for a period of four years.
Therefore, the writ appeal is disposed of, directing the first respondent to grant the appellant the continuity of service granting notional increments
and calculate and pay his pension accordingly. It is made clear that for the period of absence, he will not be entitled to any arrears of back wages.
No costs.