Yunus Mohd. vs Chief Engineer (Ur) Mppkvv Co. Ujjain)

By this writ petition, the petitioner has challenged the order dated 27/10/2017 whereby the period for which the petitioner remained out of employment, has been treated to be the period spent on duty for all purposes except for granting the wages by applying the principle of 'no work no pay'.

The brief facts are that in pursuance to the selection process, the petitioner was appointed on the post of Testing Assistant vide order dated 22/12/2012 and since there was certain suppression in respect of criminal case registered against the petitioner, therefore, vide order dated 13/03/2014, the services of the petitioner were terminated. The termination order was subject matter of challenge in WP No.3167/2014(O) and this Court by order dated 01/05/2017 had allowed the writ petition setting aside the order of termination and directing the respondents to pass an appropriate order after giving an opportunity of hearing to the petitioner. Thereafter, the respondent had passed the order dated 19/07/2017 reinstating the petitioner and the issue of back wages has been decided by the impugned order.

Learned counsel appearing for the petitioner submits that once the order of termination is set aside, the petitioner is entitled to the back wages from 13/03/2014 to 19/03/2017. He further submits that atleast the increment should be granted to the petitioner so that he gets the same salary which the other similar appointed employees are getting.

Learned counsel for the respondent opposing the prayer has submitted that there was suppression of fact of the criminal case at the time of initially appointment, therefore, the services of the petitioner were terminated and the respondent has acted in accordance with the direction of this Court issued in the writ petition and since the petitioner has not worked for the period in question, therefore, he is not entitled to the back wages and now the petitioner has been appointed on probation, therefore, the issue of increments will be decided after the probation period is over.

Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that undisputedly the petitioner had suppressed the fact of criminal case which was registered under Section 147, 148, 149, 294, 323 and Section 324 of the IPC. In the writ petition No.3167/2014 by order dated 01/05/2017 this Court had quashed the order of termination on the ground that the petitioner was involved in an offence of trivial nature and had issued the following directions:-

"In light of the aforesaid judgment, as the petitioner was involved in a case trivial in nature, the impugned order deserves to be quashed. Resultantly, the impugned order of termination dated 11.03.2014 is hereby quashed. Respondents are directed to reinstate the petitioner forthwith in service. The respondent shall pass an appropriate order after granting an opportunity of hearing to the petitioner keeping in view the judgment delivered in the case of Avtar Singh (supra) within a period of 60 days thereafter.

The issue of back-wages and other benefits etc., in case the order is passed in favour of the petitioner shall be considered by the respondents.

As the petitioner is a physically handicapped person and he has got the job with great difficulty, this Court hopes and trusts that employer will take lenient view in the matter keeping in view the trivial nature of the offence involved in the matter.

With the aforesaid, writ petition stands partly allowed."

The aforesaid order clearly reveals that a lenient view was taken by this Court in respect of the petitioner since the petitioner was a physically handicapped person and in this background the issue relating to back wages was left for the decision of the respondents. The record reflects that the respondents have also taken lenient view and have reinstated the petitioner and have granted all the benefits except the benefit of the back wages for the period the petitioner remained out of employment. By order dated 07/03/2018 infact the petitioner has been regularized w.e.f. 13/06/2013 i.e. the date of his original appointment and has been placed on probation on 2 years and the probation is not yet over, therefore, the issue relating to the increments is to be decided by the respondents after completion of 2 years probation from the date of reinstatement. The plea of the petitioner that 2 years probation period will be counted from the date of regularization cannot be accepted because the petitioner has not worked during this period and the performance of the probationer is required to be observed for the purpose of confirmation.

Hence, the petitioner will be at liberty to agitate the issue relating to grant of increment for the period he was out of employment, in case if the said issue is decided against him after completion of probation period.

So far as the issue of back wages is concerned, the petitioner's services were terminated for his own fault relating to suppression of factum of the criminal case. Hence, the petitioner cannot blame the respondent for this purpose. The reinstatement of the petitioner is by virtue of the order of this Court vide order dated 01/05/2017 passed in WP No.3167/2014 but the said order also does not mentions that any illegality was committed by the respondent in terminating the petitioner's services but by that order, the petitioner's writ petition was allowed taking the lenient view considering the fact that the offence registered against the petitioner was trivial in nature and that the petitioner is a handicapped person.

Learned counsel for the petitioner has placed reliance upon paragraph No.24 of the judgement of the Supreme Court in the matter of Pawan Kumar Agarwala Vs. General Manager-II and appointing authority, SBI and others reported in (2015) 15 SCC 184 wherein the principle which have been led down in para 38 of the Supreme Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidhyalaya reported in (2013) 10 SCC 324 has been considered but in that case also in paragraph 38.2, it has been held that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman and the financial condition of the employer and similar other factors.

Considering the petitioner's case in the light of the said guideline, I am of the opinion that the petitioner is not entitled for the back wages for the period from 13/03/2014 to 19/03/2017 when he remained out of employment and he had not worked. In the circumstances of the present case the respondent has rightly applied the principle of no work no pay.

Hence, the petition in this regard is dismissed.