GOVT. OF NCT OF DELHI v. ASHOK KUMAR

12. We have heard the learned counsel for the petitioners and narrated the facts of this case in the paragraphs aforegoing. It may be noticed that the Tribunal did not find fault in the order passed by the Appellate Authority but has only varied the order with respect to payment of back-wages. Paras 13 to 15 of the impugned order read as under:- “13. That leaves us with the issue relating to treatment of the period of absence, which has been treated as not spent on duty. In this connection, in the first place, it is to be noted that the order of the Appellate Authority, while modifying the substantive punishment of forfeiture of approved service permanently from three years to one year, has not recorded any specific decision relating to the period of dismissal, suspension, etc. In the case of ASI Sube Singh v. Union of India & Ors. (supra), the applicant therein was granted certain reliefs in this regard, as stated earlier. In that case the applicant was dismissed on account of his involvement in a criminal case. In the present OA, the charge against the applicant is of misconduct and certain amount of indiscipline. He is, therefore, entitled to no less relief than was granted to the applicant in ASI Sube Singh v. Union of India & Ors. (supra).

14. In view of the facts and circumstances of the case mentioned above, we find that the decision of the respondents to award the reduced punishment of forfeiture of one year approved service permanently, does not deserve to be interfered with in the interest of maintenance of discipline in the police force. However, we see no reason why he should be denied relief in terms of treatment of period of his absence since it was, to a large extent, due to prolonged legal proceedings for which neither party could be held responsible.

15. In the result, placing reliance on the judgment of the Hon’ble Supreme Court in the case of U.P.S.R.T.C. Ltd. v. Sarada Prasad Misra & Anr. (supra) and the order of this Tribunal in ASI Sube Singh v. Union of India & Ors. (supra), we direct the respondents to pay 50% of the salary to the applicant for the period from 14.05.1991 to 2.10.2002. As far as the period of suspension is concerned, since the applicant has been subsequently reinstated, he shall be entitled to full salary for the period from 03.10.2002 to 09.06.2003, if not already paid, after deducting the subsistence allowance, if any, paid to the applicant. The period of unauthorized absence from 09.08.1990 to 20.08.1990 shall be regularized by grant of leave of the kind due. This exercise shall be completed within a period of 3 months from the date of receipt of a copy of this order.”

13. We find no ground to interfere with the order passed by the Tribunal, as the Tribunal has taken note of all the facts and also rightly applied the law as far as payment of back-wages is concerned. The law in respect of back-wages was recently considered by us in Ajyodha Prasad v. Union of India & Ors., 2016 SCC OnLine Del 6536, the relevant paragraphs of which read as under:

10. In P.G.I. of Medical Education & Research v. Raj Kumar,

“9. The Labour Court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect. In the event, however the finding of fact is based on any misappreciation of evidence, that would be deemed to be an error of law which can be corrected by a writ of certiorari. The law is well settled to the effect that finding of the Labour Court cannot be challenged in a proceeding in a writ of certiorari on the ground that the relevant and material evidence adduced before the Labour Court was insufficient or inadequate though, however, perversity of the order would warrant intervention of the High Court. The observation, as above, stands well settled since the decision of this Court in Syed Yakoob v. K.S. Radhakrishnan [AIR 1964 SC 477: (1964) 5 SCR 64]. …

12. Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety. As regards the decision of this Court in Hindustan Tin Works (P) Ltd. [(1979) 2 SCC 80: 1979 SCC (L&S) 53: (1979) 1 SCR 563] be it noted that though broad guidelines, as regards payment of back wages, have been laid down by this Court but having regard to the peculiar facts of the matter, this Court directed payment of 75% back wages only.”

11. At the same time, there is no precise formula for ascertaining back wages as the same depends upon the facts and circumstances of the case. In U.P. State Brassware Corporation Ltd. v. Udai Narain Pandey, JT 2005 (10) SC 344, the Supreme Court held that: “No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act.” (Emphasis Supplied)”

14. The present case is to be decided on the touchstone of the law laid down by the Apex Court.

15. It may be noted that on account of indiscipline and on the respondent refusing to go back to PTS for duty, DD No.38-B dated 23.09.1990 was lodged. Based on the findings of the Inquiry Officer and Disciplinary Authority, he was awarded the punishment of dismissal from service vide order dated 14.05.1991. An appeal was filed by the respondent, which was rejected by the Appellate Authority. This had led to the filing of the first application before the Tribunal, being O.A. No.2997/1991 which was also dismissed. The respondent, thereafter, filed W.P. (C) 822/1999 which found favour with this Court and this Court held that even the minimum requirement of the principles of natural justice had not been followed as the respondent was not given assistance of a friend or assistant during the course of enquiry and setaside the impugned orders by an order dated 08.08.2002. The respondent was not paid salary from 14.05.1991 onwards for which the respondent cannot be faulted in view of the order which was passed by the Appellate Authority at the first round before the matter was remanded by the High Court. After the matter was remanded back, in the second round the Inquiry Officer submitted his findings, based on which, the Disciplinary Authority passed an order dated 13.09.2003 imposing the punishment of forfeiture of three years of approved service permanently. It also decided that the intervening period from the date of dismissal to the date of reinstatement i.e. 14.05.1991 to 02.10.2002, the period of suspension from 03.10.2002 to 09.06.2003 as well as the period of unauthorized absence for ten days from 09.08.1990 to 20.08.1990, shall be treated as period not spent on duty. The respondent then filed an appeal and the Appellate Authority in its order dated 25.02.2004 reduced the punishment to that of forfeiture of one year of approved service permanently.

16. In this backdrop, the respondent, in our view, cannot be deprived of his back-wages once having succeeded in the matter. The Tribunal has already taken a conservative view in the matter by granting 50% of back-wages. No interest has been awarded, which in our view, requires no interference.

17. Mr.Sharma, learned counsel for the petitioners has placed reliance on the Ground „D‟ of the writ petition stating that the Apex Court in UPSRTC Ltd. (supra), had granted the respondent therein 50% of the back-wages only from the date of the Award of the Labour Tribunal till the date of reinstatement. Accordingly, it has been contended that the respondent would be entitled to 50% back-wages from the date 03.10.2002, when he was reinstated by the order this Court.

18. We find no force in the submission made by Mr.Sharma, learned counsel for the petitioners, for the reason that the sequence of events as having narrated by us in aforegoing paragraphs would show that the first punishment awarded to the respondent was dismissal from service. The respondent thereafter filed an appeal, which was rejected and OA filed before the Tribunal was dismissed; but the High Court allowed the writ petition filed by the respondent, finding that the petitioners herein had not complied with the principles of natural justice and the matter was remanded back and the respondent was given an opportunity to cross-examine the witnesses. The same would show that there was no lapse or delay on the part of the respondent herein who has been regularly pursuing the matter. In UPSRTC Ltd. (supra), the respondent workman was found to be responsible for a delay of seven years from the date of termination to approaching the Conciliation Officer. This reason had prevailed upon the Supreme Court in denying back-wages for the said period, which is not applicable in the present case. The relevant paragraphs of the judgment of the Supreme Court read as under:

19. We find this submission to be unacceptable also for the reason that after the matter was remanded back, the petitioners passed an order of forfeiture of three years of service, which was thereafter reduced to one year by the Appellate Authority. The fact that even the first order passed by the petitioners, did not find favour after the matter was remanded back and in these circumstances, the respondent herein cannot be deprived of atleast 50% of back-wages especially when the fault lay with the petitioners herein and not with the respondent.

20. We are also unable to accept the submission of the learned counsel that the Tribunal had erred in not considering the gravity of charges as in the case of Vijay Singh (supra)an FIR was lodged against the petitioner under Section 325 read with Section 34 of the Indian Penal Code; while in the present case, the allegations against the respondent was showing lack of discipline and not following orders. As the nature of misconduct in the said case was substantially graver than the present case; accordingly the judgment, in our view, does not come to the aid of the petitioners.

21. As far as the observation of the Tribunal by which unauthorized absence from 09.08.1990 to 20.08.1990 is to be regularized, we find no justification for the same and the order is modified to this extent.

22. The writ petition is disposed of in above terms.

23. By an interim order dated 16.01.2007, this Court has directed the petitioners to deposit 50% of the amount due along with Rs. 5,000 towards litigation expenses of the respondent herein. The respondent would be entitled to the entire amount so deposited together with interest accrued thereon. The balance amount be released in favour of the respondent within six weeks from the receipt of this order. In case the amount is not released by the petitioners within six weeks, the respondent would be entitled to interest @ 6% per annum. G.S.SISTANI, J. VINOD GOEL, J. JANUARY 02, 2017 // /ka