Partly allowed

Enayat Ulla Khan, v. State of Chhattisgarh

Chhattisgarh HC28 Jul 2023WA/261/2021

Case brief

AI extract

What is this about?

The High Court set aside the single judge's application of the "no work no pay" principle, holding that Free Rule 54-A(1) mandates back-wages when dismissal is quashed for procedural defects. The Court awarded 50% back-wages to avoid inequity.

What did the court decide?

The order denying back-wages based on "no work no pay" was set aside; the appellant was awarded 50% of the total back-wages payable within three months.

Enayat Ulla Khan, Vs State of… — Pension and Retirement Benefits | Chhattisgarh HC (2023)

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AFR

(W.A.No.261/2021)

HIGH COURT OF CHHATTISGARH, BILASPUR

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Writ Appeal No.261 of 2021

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( Arising out of order dated 7-12-2020 passed by the learned Single Judge in W.P.(S)No.6690/2014 )

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Enayat Ulla Khan, S/o Shri Rahamat Ulla Khan, aged about 54 years, R/o A/2, House No.122, Aasma City Home, Phase II, Sakri, Bilaspur (C.G.)

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(Petitioner) ---- Appellant

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Versus

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State of Chhattisgarh, Through its Secretary, Panchayat & Gramin Vikas Vibhag, Mahanadi Bhawan, Mantralaya, Capital Complex, Naya Raipur, District Raipur (C.G.)

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The Director, Directorate Panchayat, Chhattisgarh, 36.C III, Block II, Floor, Indrawati Bhawan, Naya Raipur, District Raipur (C.G.)

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The Collector, Surguja, District Surguja (C.G.)

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The Chief Executive Officer, Zila Panchayat, Surguja (Ambikapur), District Surguja (C.G.)

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The Chief Executive Officer, Janpad Panchayat, Bhaiyathan, District Surguja (C.G.)

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---- Respondents

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For Appellant: Mr. Palash Agrawal, Advocate. For Respondents No.1, 2 & 3 / State: -

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Mr. Amrito Das, Additional Advocate General.

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Hon'ble Mr. Sanjay K. Agrawal and Hon'ble Mr. Radhakishan Agrawal, JJ.

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Order on Board

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(28/07/2023)

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Sanjay K. Agrawal, J.

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This writ appeal is directed against the part of the impugned

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judgment & order dated 7-12-2020 passed by the learned Single

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Page 2 of 10

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(W.A.No.261/2021)

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Judge in W.P.(S)No.6690/2014, by which while setting aside the order of termination from service, the writ appellant herein / writ petitioner has been held dis-entitled for back-wages applying the principle of “no work no pay”.

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This part of the order has been questioned by the writ appellant on the following factual backdrop: -

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The writ appellant herein was in Government service and he was serving on the post of Assistant Internal Audit & Taxation Officer posted at Janpad Panchayat, Bhaiyathan, District Surguja at the relevant point of time when he was charge-sheeted on account of alleged misconduct. A detailed departmental enquiry was conducted against the appellant herein in accordance with the provisions contained in the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 and accordingly, the order of termination was passed on 5-4-2010. The said order of termination was confirmed by the appellate authority – Director (Panchayat) on 30-9-2014, as such, services of the appellant stood terminated. Feeling aggrieved and dissatisfied against the order of termination as confirmed by the appellate authority, the appellant preferred W.P.(S)No.6690/2014 before this Court, which the learned Single Judge allowed partly and set aside the order of termination affirmed by the appellate authority by order dated 30-9-2014 and directed that the appellant shall be entitled for counting of six years’ service, which he has been out of

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Page 3 of 10

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(W.A.No.261/2021)

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employment, for all other purposes and thereby granted continuity of service and other benefits, however, declined to grant back-wages to him invoking the principle of “no work no pay”, which is sought to be challenged by way of this writ appeal.

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Mr. Palash Agrawal, learned counsel appearing for the writ appellant herein, would submit that the learned Single Judge having set aside the order of termination ought to have granted full back-wages to the appellant in view of the provisions contained in Fundamental Rule 54-A and wrongly invoked the principle of “no work no pay”, which is not applicable, as there is express provision in F.R. 54-A, as the order of removal having been set aside by the writ court. In that view of the matter, the writ appeal deserves to be allowed.

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Mr. Amrito Das, learned Additional Advocate General appearing for the State / respondents No.1, 2 & 3, would support the impugned order and submit that since the appellant did not work for the period in question, the principle of “no work no pay” has rightly been invoked, as such, the writ appeal deserves to be dismissed.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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The order of termination passed by the competent authority dated 5-4-2010 has duly been confirmed by the appellate

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Page 4 of 10

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(W.A.No.261/2021)

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authority on 30-9-2014. The learned Single Judge allowed the writ petition and set aside the order of termination as confirmed by the appellate authority and granted all other service benefits to the petitioner therein, but declined to grant back-wages only on the principle of “no work no pay”. Thus, the questions that emanate for consideration would be,

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Whether the principle of “no work no pay” has rightly been invoked by the learned Single Judge?

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If no, then what back-wages the writ appellant herein is entitled for?

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Answer to the first question: -

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The principle of 'No Work No Pay' is based upon a fundamental concept in a Law of Contract of Employment namely wages and salary are paid by the employer in consideration of work / service rendered by the employee. 'No Work No Pay' principle has been laid down keeping in view public interest that a Government servant who does not discharge his duty is not allowed pay and arrears at the cost of public exchequer. (See Union Territory,

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Chandiga rh v. Brijmohan Kaur 1.)

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The Supreme Court in the matter of State of Bihar and others v. Kripa Nand Singh and another 2 has observed that 'No Work No Pay' is the rule and 'No Work Yet Pay' is the exception. It was pointed out that exception would apply only when employee is

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1 (2007) 11 SCC 488

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2 (2014) 14 SCC 375

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Page 5 of 10

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(W.A.No.261/2021)

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compelled (compulsory waiting period) not to attend his duty without any violation or without any fault on his part.

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The Supreme Court in the matter of State of Uttar Pradesh and others v. Madhav Prasad Sahrma 3 has held that principle of 'No Work No Pay' cannot be applied as a rule of thumb. Full back wages in certain circumstances may be justified particularly when promotion is wrongly denied.

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11.Similarly, in the matter of Commissioner, Karnataka Housing Board v. C. Muddaiah 4, the Supreme Court has reiterated that principle of 'No Work No Pay' is not absolute in a given case, if it is that the person was willing to work but he was illegally and unlawfully not allowed to do so, the Court may in the circumstances, direct the authority to grant him all benefits considering “as if he had worked”.

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In our considered opinion, the principle of 'no work no pay' would not be applicable in the facts of the present case, as F.R. 54-A(1) provides that where the dismissal, removal or compulsory retirement of a Government servant is set aside by a Court of Law and such Government servant is reinstated without holding any further enquiry, the period of absence from duty shall be regularised and the Government servant shall be paid pay and allowances in accordance with the provisions of sub-rules (2) or

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(3) subject to the directions, if any, of the Court. As such, the

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3 (2011) 2 SCC 212

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4 (2007) 7 SCC 689

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Page 6 of 10

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(W.A.No.261/2021)

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principle of “no work no pay” would have no application in the present case and the principle of 'no work no pay' would not override the provisions contained in F.R. 54-A(1) which provides payment of pay and allowances in accordance with the provisions contained in sub-rules (2) or (3) of F.R. 54-A subject to the directions, if any, of the Court. This question is answered accordingly.

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A nswer to the second question: -

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In order to decide this question, it would be appropriate to notice

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F.R. 54-A(2)(i), which states as under: -

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“(2)(i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of noncompliance with the requirements of clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall, subject to the provisions of sub-rule (7) of rule 54, be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsory retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection, within such period which in no case shall exceed sixty days from the date on which the notice has been served as may be specified in the notice :

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xxx xxx xxx”

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F.R. 54-A deals with the situation as to how the period of absence

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from duty on account of termination is to be treated where the

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Page 7 of 10

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(W.A.No.261/2021)

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order of dismissal, removal or compulsory retirement of a Government servant is set-aside by the Court of Law and the said Government servant as a consequence of the said order is reinstated back into service. F.R. 54-A(2)(i) deals with the situation where the order of termination, dismissal, removal or compulsory retirement of a Government servant is set-aside by the Court on account of non-compliance with the requirements of clause (2) of Article 311 of the Constitution of India, and where he is not exonerated on merits. Article 311(2) of the Constitution of India provides that no person who is a member of a civil service can be dismissed or removed except after an enquiry giving him a reasonable opportunity of being heard.

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F.R. 54-A(2)(i) further provides that if the order of termination is set-aside for the reasons of non-compliance with Article 311(2) of the Constitution of India, the Government servant shall be paid such amount not being the whole of the pay and allowances to which he would have been entitled had he not been removed or dismissed as the competent authority may determine after giving notice to the Government servant of the quantum proposed and after considering the representation.

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However, F.R. 54-A(5) provides that any payment made under F.R. 54-A shall be subject to adjustment of the amount, if any, earned by the Government servant through an employment during the period of his dismissal or removal and the date of his

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Page 8 of 10

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(W.A.No.261/2021)

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reinstatement. Thus, a conjoint reading of F.R. 54-A(2)(i) and F.R. 54-A(5) leads to a conclusion that after the order of termination passed in departmental enquiry is set-aside by the Court of Law, determination of back-wages payable to the Government servant is required to be undertaken after giving the Government servant an adequate opportunity of hearing. As such, determination of back-wages payable is a process statutorily mandated in a case which is covered by F.R. 54-A(2) since it has serious civil consequences resulting in pecuniary loss to the Government servant, if not abide by and there cannot be complete denial of back-wages which stand contrary to F.R. 54-A and would thus, stand in breach of the statutory provisions.

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The Supreme Court in the matter of State of Rajasthan and

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another v. Mangat Lal Sidana 5, with reference to observance of principles of natural justice, held as under: -

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“20. The other aspect of the matter is about the observance of principles of natural justice. The employee must be given an opportunity before any order is passed. The matter is no longer res integra . [See M. Gopalakrishna Naidu v. State of Madhya Pradesh , AIR 1968 SC 240]. It does not need reiteration that even under Rule 54, the position is the same. Observance of principles of nature justice is of cardinal importance for the employee whose very life will be at stake for he would on the one hand if he is heard get an opportunity to persuade the competent authority that his case would fall under Rule 54(2) and not under Rule 54(3). Denial of opportunity can have very serious consequences. In this case, the finding is that the principles of natural justice were not complied

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5 2022 SCC OnLine SC 378

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Page 9 of 10

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(W.A.No.261/2021)

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with. On this ground, the respondents would support the judgment.”

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Bearing in mind the principles contained in F.R. 54-A(2) read with F.R. 54-A(5), perusal of the order of the learned Single Judge would show that the order of termination passed against the appellant was set-aside for the reason that the departmental enquiry was not conducted in appropriate manner giving adequate opportunity to the appellant to defend himself and accordingly, the order of termination was set-aside for the reason that the departmental enquiry was not conducted in appropriate manner which resulted in denying adequate opportunity of hearing to the appellant. Thus, the order of termination was set aside on account of non-compliance with the requirements of clause (2) of Article 311 of the Constitution and the appellant has not been exonerated on merits. As such, the case of the appellant will be covered by F.R. 54-A(2)(i) and thereby he shall, subject to the provisions of sub-rule (7) of Rule 54, be paid the amount determined under the provisions of sub-rules (2) or (3) of Rule 54-A.

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Ordinarily, we could have remanded the matter to the competent authority for giving an opportunity of hearing for determination of back-wages payable to the appellant as required under F.R. 54A(5), but considering the judicial age of this case, as the appellant was terminated way back on 5-4-2010, and in order to give a quietus to the litigation and relegating the appellant back

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Page 10 of 10

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(W.A.No.261/2021)

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to the competent authority would be inequitable, we deem it appropriate to award 50% of the total back-wages to the appellant, that will serve the ends of justice. It is ordered accordingly. The said amount will be paid to the appellant within three months from the date of receipt of a copy of this order failing which he will be entitled for interest @ 6% per annum on the amount of back-wages.

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As a fallout and consequence of the aforesaid discussion, the writ appeal is partly allowed and the part of order of the learned Single Judge holding that the appellant is not entitled for backwages on the ground of “no work no pay”, is hereby set aside, leaving the parties to bear their own cost(s).

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Sd/Sd/(Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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Soma

Enayat Ulla Khan, v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Enayat Ulla Khan, v. State of Chhattisgarh

Case brief

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