Dismissed

Lallan Pathak v. State of U.P. and Others

Allahabad HC30 Aug 2018WRIA/32311/2009

Case brief

AI extract

What is this about?

The petitioner, a former teacher, filed a writ petition claiming backwages for a period spanning from 1976 to 1989. The court rejected the claim, holding that backwages were previously denied and constitute a non-recurring cause of action. The petition was dismissed based on prior orders refusing the relief.

What did the court decide?

Writ petition dismissed; claim for backwages from 1976 to 1989 rejected as a recurring cause of action.

Lallan Pathak Vs State of U.P. and Others — Pension and Retirement Benefits | Allahabad HC (2018)

Court No. - 28

A.F.R.

Case :- WRIT - A No. - 32311 of 2009 Petitioner :- Lallan Pathak Respondent :- State Of U.P. & Others Counsel for Petitioner :- Vinay Kumar Srivastava Counsel for Respondent :- C.S.C.,Deo Dayal

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Hon'ble Ajay Bhanot,J.

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The petitioner was appointed as Assistant Teacher in Junior High School, Niyamabad (hereinafter the institution) on 4.10.1968.

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The petitioner was handed down a sentence of 10 years imprisonment in a criminal case under Section 307 IPC by the learned Additional Sessions Judge-III, District Varanasi on 23.11.1970. The sentence was reduced by this court in the appeal. The judgement in the criminal appeal entered on 9.10.1973 reduced the sentence to 7 years of imprisonment. The petitioner was sent to jail upon the confirmation of his conviction in appeal by this court.

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The petitioner remained in jail w.e.f. 13.11.1973 to 09.4.1976. The petitioner was released from jail after he was granted probation by His Excellency the Governor for good behaviour on 9.4.1976.

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The petitioner claims that he reported to the institution for resuming his duties on 12.4.1976. The authorities in the institution did not permit the petitioner to resume his duties. Aggrieved the petitioner instituted a claim petition before the U.P. Public Service Tribunal, Lucknow. The claim petition was registered as 526 of 1977, Lallan Pathak Vs. B.S.A., Varanasi and another. The following reliefs were sought in the claim petition before the U.P. Public Services Tribunal :-

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“21- यह किकि कउपरोक्त कवादी किनिम्निांकिकित कअनिुतोषों क ी कयाचनिा क रता कहै:-

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अ- यह किकि कस्थायी किनिषेधाज्ञा कद्वारा कप्रतितवादीगण क ो कविजरत किकिया कजावे िकि कवे कवादी ो कप्रतधानि कअध्यापकि क कपद कपर कजुिनियर कहाईस्किूल कमवैया किजला वाराणसी कमे क ायर क रनिे कतथा कसमुिचत कवैधािनिकि कवेतनि कव कअन्य कसंकिवधा कएवंक कलाभ लेनिे कमे कअवैधािनिकि कबांकधा कनि कडाले।

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ब- यह किकि कवादी क ो किनिम्निांकिकित कधनिरािशि क ा कभुगतानि कप्रतितवादीगण कसे किरा किदया कजावे।

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स- यह किकि कअन्य कआवश्यकि कएवंक कयथोिचत कअनिुतोष क ी कआज्ञािप्ति कएवंक आज्ञा कवादी क े कपक्ष कतथा कप्रतितवादी कगण क े किवपक्ष कदेनिे क ी क ृपा क ी कजावे।"

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The claim petition was dismissed by the learned tribunal by judgment and order dated 29.11.1980. The petitioner assailed the order passed by the tribunal by invoking the extra-ordinary jurisdiction of this court under Article 226 of the Constitution of India. The writ petition was registered as C.M. Writ Petition No.2788 of 1981, Lallan Pathak Vs. U.P. Public Service Tribunal, Lucknow and others. The writ petition was allowed by judgement and order entered by this court on 6.11.1989. The operative part of the judgement is extracted herein under:-

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“It is apparent from the aforesaid findings of the Service Tribunal that no legal provision has been mentioned where-under the petitioner could be deemed to have left the service on his own by virtue of his having remained absent from the service for about 4 years. In Annexure 4 to the writ petition on purporting to be a certificate issued by the Head Master of the Junior High School, in which the petitioner was working, it is certified that the petitioner remained on leave without pay upto 30^th November, 1973 and from 1.12.1978 he remained on leave without pay for indefinite period. In the absence of any provision of law that on account of prolonged absence, the petitioner

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can be deemed to have left the job, it could not be held that the petitioner has loat the right to resume the service. When as per Annexure 4 to the writ petition, the petitioner remained on leave without pay from 1.12.1978 for indefinite period, he could not be prevented from joining the service, unless a rule exists in that behalf. No such provision has been shown to me by the learned Standing Counsel, nor is there any provision that the petitioner's services would be ceased automatically after the expiry of about four years in which he remained absent. The learned Standing Counsel clearly stated that no termination order was passed against the petitioner. On these facts, the order of the Service Tribunal that the petitioner found himself out of job, could not be sustained. No reason has been given by the Tribunal to come to the conclusion that the right for the petitioner to continue in service has ceased.

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Fro the reasons, the writ petition is allowed, the Tribunal's order dated 29.11.1980, Annexure 7 to the writ petition is quashed and the respondents no.2 and 3 are directed not to prevent the petitioner from resuming the charge of the post of Assistant Teacher in the concerned institution. On the facts and circumstances of the case, there will be no order as to costs.”

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The issue of grant of backwages to the petitioner for the period during which he was not permitted to join as a Assistant Teacher was directly in issue in the aforesaid writ petition. However, this court only commanded the respondent authorities "not to prevent the petitioner from resuming the charge of the post of Assistant Teacher in the concerned

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institution." The claim of the back wages though directly in issue in the aforesaid writ petition was not granted. The relief claimed or in issue but not granted would amount to denial of relief.

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In compliance of the order passed by this court on 6.11.1989 the B.S.A., Varanasi, by order dated 21.3.1990 permitted the petitioner to resume charge as Assistant Teacher in the aforesaid institution. The aforesaid order records that the petitioner was deemed to be in service w.e.f. 27.11.1989. The said order also granted him backwages w.e.f. 27.11.1989. The order dated 21.3.1990 has attained the finality. The order has not been assailed before any competent court of law.

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The order dated 21.3.1990 decided the claim of the petitioner for backwages. The petitioner was found entitled to backwages w.e.f 27.11.1989 till the date of his joining. Learned counsel for the petitioner fairly admitted that the order dated 21.3.1990 has not been assailed in any competent court of law nor has been recalled by any competent authority.

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The petitioner instituted another writ petition which was registered as Civil Misc. Writ Petition No.31114 of 2000, Lallan Pathak Vs. District Basic Shiksha Adhikari, Chandauli & Others. The said writ petition was decided by judgement and order rendered by this court on 18.8.2008. The extracts of the judgement relevant to the instant controversy are as follows:-

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“The petitioner who had been appointed as an Assistant Teacher in the Junior High School, Mawaiya, District Varanasi (hereinafter referred to as the School) has filed this petition for claiming the following principal relief:-

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“a suitable writ, order or direction in the nature of mandamus commanding the respondents to act strictly in accordance with the spirit of judgment and order dated 6.11.1989 passed by this Hon'ble Court and pay all arrears of salary of the petitioner from 12.4.1976 alongwith interest at the rate of 18% per annum from illegally withholding payment of the same for all these years.”

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After considering the facts and circumstances of the case this court rejected the claim of backwages and passed the following order:-

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“A perusal of the judgement and order dated 6^th November 1989 shows that there is no direction for payment of salary to the petitioner from 12^th April 1976 and nor is there any direction to treat the petitioner in service from the date. The only direction that has been issued is not to prevent the petitioner to resume the charge on the post of Assistant Teacher. The respondents have accordingly permitted the petitioner to resume his charge of the post of Assistant Teacher from 27^th November, 1989. In-fact the judgment and order dated 6^th November 1989 also records that the petitioner had remained on leave without pay upto 30^th November, 1973 and from 1.12.1973 he remained on leave without pay for indefinite period. The question as to whether the petitioner should have been permitted to resume duties w.e.f. 12^th April, 1976 was in issue in Writ Petition No.2788 of 1981, which was decided on 6^th November 1989 but such relief was not granted by this Court. This relief, therefore, cannot be granted in

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this subsequent petition. However, as the Basic Shiksha Adhikari in the communications dated 21^st March, 1991 and 2^nd November 1992, copies of which annexed as Annexures-4 and 5 to the writ petition, has observed that the petitioner would be entitled to salary from 27^th November 1989, the petitioner may make a representation to the Basic Shiksha Adhikari for payment of salary from 27^th November 1989, if such salary has not been paid to the petitioner and if such a representation is made, the Basic Shiksha Adhikari shall pass an appropriate order in accordance with law after examining the records expeditiously, preferably within a period of two months from the date a certified copy of this order is filed by the petitioner before the Basic Shiksha Adhikari.

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The writ petition is, accordingly, disposed of.”

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Thus the claim of the petitioner was for backwages w.e.f. 12.4.1976 to 26.11.1989 was rejected on three occasions. Firstly by the order passed by this court on 6.11.1989 in C. M. Writ Petition No.2788 of 1981. On the second occasion by order dated 21.3.1990 passed by the District Basic Shiksha Adhikari, Varanasi. Third time the said claim for back wages was specifically rejected by this court by the aforesaid judgment and order dated 18.8.2008 entered in Civil Misc. Writ Petition No.31114 of 2000.

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By means of the order dated 18.8.2008 petitioner was permitted to move representation regarding his claim for salary w.e.f. 27.11.1989. The petitioner submitted a representation to the respondent authorities in pursuance of the aforesaid judgment and order dated 18.8.2008 entered by this court in Civil Misc. Writ Petition No.31114 of 2000. In the

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aforesaid representation the petitioner enlarged his claim for backwages from 12.4.1976 to 26.11.1989.

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The aforesaid claim for back wages from 1976 to 1989 as raised by the petitioner in his representation was misconceived in view of the narrative in the preceding paragraphs. The claim had been repeatedly rejected by this court as well as by the competent authority. The petitioner was not entitled to raise the said claim in the representation submitted by him in pursuance of the order passed by this court on 18.8.2008.

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The petitioner had submitted the enlarged claim which was considered by the respondent authorities and rejected by the order dated 24.9.2009. The claim has been rejected on the ground that the petitioner did not work on the aforesaid post hence he was not entitled to salary on the principles of natural justice "no work no pay".

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Learned counsel for the petitioner submits that the principles of natural justice "no work no pay" is not applicable to the facts of this case.

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The argument attractive on the face of it, is found to be misconceived in fact as well as law upon a closer to relief firstly as has been brought out in the earlier part of the narrative. The claim of the petitioner for back wages was rejected by this court in its judgement and order dated 6.11.1989 entered in Writ Petition No.2788 of 1981 as well as the judgment and order passed by this court on 18.8.2008 in Civil Misc. Writ Petition No.31114 of 2000. Backwages for the period from 1976 to 1989 cannot be granted to the petitioner. The claim has been rightly rejected. Moreover there is another relevant aspect to the matter. The claim of the petitioner for back wages was also rejected by the competent authority by

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order dated 21.3.1990. The petitioner has not challenged the aforesaid order till date. The claim of backwages is not recurring cause of action unlike a claim of salary.

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Backwages are an exception carved out of the concept of “no work no pay”. Backwages are not granted as a matter of routine or by the rule of thumb. The competent authority has to fix the quantum of backwages, at the time of reinstatement, after consideration of all relevant facts and attending circumstances as per law. The claim, if any, for backwages materializes at the time of the reinstatement or quashment of the termination order. It has to be raised at that point in time, or in proximity thereof.

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The grant of consequential benefits including backwages upon reinstatement in service has engaged the Hon'ble in number of occasions. The quantum of backwages to be awarded upon reinstatment has been a matter where there is some divergence in judicial views. However, there is unanimity on the point that the grant of back wages upon reinstatement alongwith other consequential benefits, is not a matter of routine. A decision has to be entered by the authority on the facts of each case at the time of the reinstatement of the employee. The Hon'ble Court in the case of Krishnakant Raghunath Bibhavnekar Vs. State of Maharashtra and Ors reported at 1 997 (3) SCC 636 . The Hon'ble Supreme Court held thus:-

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“In our considered view, this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course, on his acquittal.”

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Unlike wages or salary which became payable after a

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specified period of work. Backwages do not become due at the beginning of specified period. Denial of wages after every specified period of work, when they become due, is a cause of action. The cause of action recurs each time when the wages become due but are denied. Backwages are a one time affair. Claim of backwages is not a recurring cause of action.

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The injury caused by denial of backwages is complete when at the time of reinstatement backwages are not granted. There is no continuing wrong though the perceived effect of denial of backwages may continue indefinitely. The above proposition of law can be fortified by the law laid down by the Hon'ble Supreme Court in the case of Balakrishna Savalram Pujari Waghmare Vs. Shree Dhyaneshwar Maharaj Sansthan reported at AIR 1959 SC 798. The relevant part of the judgement is extracted herein below:-

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“ It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. ”

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In view of the aforesaid facts the writ petition fails and is dismissed.

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Order Date :- 30.8.2018 Pramod

Lallan Pathak v. State of U.P. and Others

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Lallan Pathak v. State of U.P. and Others

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