State of U.P. & Anr. Vs. Atal Behari Shastri & Anr.
EmailAppeal: Civil Appeal No. 3799 of 1992
(Arising out of S.L.P.(C) No.10009 of 1992)
(Arising out of S.L.P.(C) No.10009 of 1992)
Petitioner: State of U.P. & Anr.
Respondent: Atal Behari Shastri & Anr.
Apeal: Civil Appeal No. 3799 of 1992
(Arising out of S.L.P.(C) No.10009 of 1992)
(Arising out of S.L.P.(C) No.10009 of 1992)
Judges: L.M. SHARMA, P.B. SAWANT & N. VENKATACHALA, JJ.
Date of Judgment: Sep 16, 1992
Head Note:
SERVICE AND LABOUR LAW
Termination of Service
Temporary post – Respondent not reporting for duty after holidays – Neither he responded to the notice of the employer asking him to return and join duty – Services terminated – High Court allowing the petition granted relief in respect of past salary – Held that relief of past salary could not be granted – However, the Court granted a lump sum of Rs.25,000 to the respondent in lieu of past salary.
JUDGEMENT:
VENKATACHALA, J. :
1. Special leave is granted and the appeal is heard on merits.
2. The second appellant is the Administrative Board established under the U.P. Women’s & Children Institutions (Control) Act, 1956 for properly controlling and supervising orphanages and other institutions of destitute children and women in the State, with the funds to be received by way of, donations from the public and aid from the State Government. The first Respondent was appointed on 29th September 1958 in a temporary post of Licensing Inspector in the establishment of the Administrative Board, on a pay scale of Rs.120-8-200 EB 10-300 plus dearness and other allowances as admissible to State Government Employees. The first Respondent who should have returned to duty by 26th March 1970 after availing of the ‘Holi’ Holidays, failed to do so even by the month of July, 1970 despite a notice served upon him in that regard. This situation led to the issuing of an Order dated 15th July 1970 by the Administrative Board terminating the services of the first Respondent as its Licensing Inspector with effect from the 26th March, 1970 by informing him that he would get one month’s salary in lieu of notice. The first Respondent’s suit filed in the Munsif Court at Meerut in the year 1971 seeking the reliefs-of declaration that the order of the Administrative Board by which his services were terminated as void and of the mandatory injunction for his reinstatement, was dismissed on 4th December 1974. Civil Appeal preferred by the first Respondent in the District Court at Kanpur against the dismissal of his suit was transferred by that Court to the U.P. Public Services Tribunal for disposal on the coming into force of the U.P. Public Services (Tribunal) Act 1976. But, that Tribunal, by its Order dated 7th July 1978 dismissed the appeal finding, inter alia, that the order of termination of services of the first Respondent by the Administrative Board cannot be held to be invalid when the first Respondent who had undisputably received a notice dated 6th May 1970 by which he was called upon to return to duty, had failed to respond to the same. The non-success of first Respondent’s appeal before the Tribunal, led him to the filing of a Writ Petition in the matter before the High Court of Judicature at Allahabad. A learned Single Judge of that High Court, who took the view that although the first Respondent was a holder of a temporary post, his services could not have been terminated without affording him an opportunity of being heard in the matter, allowed the Writ Petition by his Order dated 27th November 1991, quashed the impugned decisions of the Court of Munsif and of the Service Tribunal, besides the impugned order of first Respondent’s termination and granted to first Respondent a relief in the following terms:
“In the affidavit sworn in support of the writ petition filed in 1978, the petitioner has given his age as 54 years. It is thus, obvious that during the pendency of the writ petition he has attained the age of superannuation. For this reason, although the writ petition is being allowed but his reinstatement in service cannot be ordered. However, he is entitled to his salary from the date of the order of termination to the date of his retirement, salary and other permissible allowances for the aforesaid period shall be paid to the petitioner within three months from the date of presentation of a certified copy of this order.”
3. In the present appeal preferred under Article 136 of the Constitution, the legality of the said order of the High Court is questioned.
4. The relief relating to his past salary could not have been granted to the first Respondent even if he had succeeded in his suit, for the suit was not for recovery of arrears of salary as such. Besides no arrears of salary of first Respondent could have been granted in the absence of a finding recorded by the Court that the first Respondent was not otherwise gainfully employed during the relevant period. Moreover, the first Respondent is not free from blame, for the termination of his services was due to his admitted non-response to the notice of the Advisory Board asking him to return and resume the duties of his office.
5. In the circumstances, it would be just and reasonable to direct the second Appellant Advisory Board to pay a lump sum of Rs.25,000/- (twenty five thousand only) to first Respondent within three months from today instead of salary and allowances ordered to be paid by the High Court in its order in appeal.
6. In the result, we allow the appeal partly and direct the second Appellant-Advisory Board to pay to first Respondent Atal Behari Shastri a lump sum of Rs.25,000/- within three months from today in lieu of all his claims against the second Appellant Advisory Board for the alleged wrongful termination of his services as Licensing Inspector. In the peculiar circumstances of this appeal, we make no order as to costs.
1. Special leave is granted and the appeal is heard on merits.
2. The second appellant is the Administrative Board established under the U.P. Women’s & Children Institutions (Control) Act, 1956 for properly controlling and supervising orphanages and other institutions of destitute children and women in the State, with the funds to be received by way of, donations from the public and aid from the State Government. The first Respondent was appointed on 29th September 1958 in a temporary post of Licensing Inspector in the establishment of the Administrative Board, on a pay scale of Rs.120-8-200 EB 10-300 plus dearness and other allowances as admissible to State Government Employees. The first Respondent who should have returned to duty by 26th March 1970 after availing of the ‘Holi’ Holidays, failed to do so even by the month of July, 1970 despite a notice served upon him in that regard. This situation led to the issuing of an Order dated 15th July 1970 by the Administrative Board terminating the services of the first Respondent as its Licensing Inspector with effect from the 26th March, 1970 by informing him that he would get one month’s salary in lieu of notice. The first Respondent’s suit filed in the Munsif Court at Meerut in the year 1971 seeking the reliefs-of declaration that the order of the Administrative Board by which his services were terminated as void and of the mandatory injunction for his reinstatement, was dismissed on 4th December 1974. Civil Appeal preferred by the first Respondent in the District Court at Kanpur against the dismissal of his suit was transferred by that Court to the U.P. Public Services Tribunal for disposal on the coming into force of the U.P. Public Services (Tribunal) Act 1976. But, that Tribunal, by its Order dated 7th July 1978 dismissed the appeal finding, inter alia, that the order of termination of services of the first Respondent by the Administrative Board cannot be held to be invalid when the first Respondent who had undisputably received a notice dated 6th May 1970 by which he was called upon to return to duty, had failed to respond to the same. The non-success of first Respondent’s appeal before the Tribunal, led him to the filing of a Writ Petition in the matter before the High Court of Judicature at Allahabad. A learned Single Judge of that High Court, who took the view that although the first Respondent was a holder of a temporary post, his services could not have been terminated without affording him an opportunity of being heard in the matter, allowed the Writ Petition by his Order dated 27th November 1991, quashed the impugned decisions of the Court of Munsif and of the Service Tribunal, besides the impugned order of first Respondent’s termination and granted to first Respondent a relief in the following terms:
“In the affidavit sworn in support of the writ petition filed in 1978, the petitioner has given his age as 54 years. It is thus, obvious that during the pendency of the writ petition he has attained the age of superannuation. For this reason, although the writ petition is being allowed but his reinstatement in service cannot be ordered. However, he is entitled to his salary from the date of the order of termination to the date of his retirement, salary and other permissible allowances for the aforesaid period shall be paid to the petitioner within three months from the date of presentation of a certified copy of this order.”
3. In the present appeal preferred under Article 136 of the Constitution, the legality of the said order of the High Court is questioned.
4. The relief relating to his past salary could not have been granted to the first Respondent even if he had succeeded in his suit, for the suit was not for recovery of arrears of salary as such. Besides no arrears of salary of first Respondent could have been granted in the absence of a finding recorded by the Court that the first Respondent was not otherwise gainfully employed during the relevant period. Moreover, the first Respondent is not free from blame, for the termination of his services was due to his admitted non-response to the notice of the Advisory Board asking him to return and resume the duties of his office.
5. In the circumstances, it would be just and reasonable to direct the second Appellant Advisory Board to pay a lump sum of Rs.25,000/- (twenty five thousand only) to first Respondent within three months from today instead of salary and allowances ordered to be paid by the High Court in its order in appeal.
6. In the result, we allow the appeal partly and direct the second Appellant-Advisory Board to pay to first Respondent Atal Behari Shastri a lump sum of Rs.25,000/- within three months from today in lieu of all his claims against the second Appellant Advisory Board for the alleged wrongful termination of his services as Licensing Inspector. In the peculiar circumstances of this appeal, we make no order as to costs.
