Koneru Lakshmaiah College Of Engineering, Rep.By Its v. R.Bhoopathi Reddy

THE HON'BLE SRI JUSTICE SANJAY KUMAR AND THE HON'BLE DR. JUSTICE B.SIVA SANKARA RAO WRIT APPEAL NO.568 OF 2008

J U D G M E N T

(per Hon'ble Sri Justice Sanjay Kumar) Koneru Lakshmaiah College of Engineering, Vijayawada, and its Secretary & Correspondent filed this appeal aggrieved by the order dated 09.02.2007 passed by a learned Judge allowing W.P.No.21499 of 1997. The said writ petition was filed by the 1st respondent herein assailing the action of the appellant-college in not reinstating him in service as a plumber as per the orders dated 11.04.1993 and 10.09.1993 passed by the competent authority and seeking a consequential direction to the appellant-college to implement the said orders by reinstating him with all consequential benefits, including arrears of the salaries from the date of his removal/retrenchment till the date of his reinstatement.

The 1st respondent/writ petitioner was appointed as a plumber in the appellant-college in September, 1982, but his services were retrenched on 21.01.1987 on the ground that the post was abolished. His appeal against such retrenchment under the provisions of the Andhra Pradesh Education Act, 1982 (for brevity, 'the Act of 1982'), before the competent authority, the Commissioner and Director of Technical Education, Andhra Pradesh, Hyderabad, resulted in the order dated 11.04.1993 whereby the appellantcollege was directed to reinstate the 1st respondent/writ petitioner in service as a plumber with immediate effect. Aggrieved thereby, the appellant-college filed W.P.No.5103 of 1993 before this Court. The said writ petition was disposed of on 23.04.1993 leaving it open to the appellant-college to avail the statutory remedy.

Thereafter, the appellant-college's review petition was dismissed by the Commissioner by order dated 10.09.1993 holding that there was neither a mistake of fact nor of law in the order dated 11.04.1993. The appellant-college was again asked to take immediate action to reinstate the 1st respondent/writ petitioner in service and report compliance. However, the appellant-college failed to do so despite the many representations made by the 1st respondent/writ petitioner.

implementation of the orders of the competent authority. Before the learned Judge, the appellant-college again sought to justify the 1st respondent/writ petitioner's removal from service, as is evident from the order under appeal dated 09.02.2007, but the learned Judge, in our opinion, rightly rejected such attempts. It was stated before the learned Judge that the appellant-college had preferred a revision to the Government under Section 90 of the Act of 1982 on 23.11.1993 but the same was dismissed by the Government under order dated 30.12.1993. Though the appellant-college claimed that it had sought review of the Government's order dismissing its revision, the learned Judge took note of the fact that, in any event, there was no suspension of the orders dated 11.04.1993 and 10.09.

1993 passed by the Commissioner and held that it was not open to the appellant-college to fail to implement the same. The learned Judge observed that non-compliance of Section 79 of the Act of 1982 was clearly established justifying the orders dated 11.04.1993 and 10.09.1993 and accordingly directed the appellant-college to reinstate the 1st respondent/writ petitioner in service forthwith with all consequential benefits.

It appears that the appellant-college filed Review WPMP No.16608 of 2007 seeking review of the order dated 09.02.2007 only on the issue of back wages granted to the 1st respondent/writ petitioner. By order dated 28.01.2008, the learned Judge dismissed this review petition. The learned Judge took note therein that the present case did not arise under the Industrial Disputes Act, 1947, and more importantly, the fact that it was not the case of the appellantcollege that the 1st respondent/writ petitioner was gainfully employed after his termination from service.

By order dated 16.06.2008 passed in this appeal, implementation of the order under appeal was stayed to the extent of payment of back wages. Heard Sri M.Sudheer Kumar, learned counsel for the appellants, and Sri P.S.Rajasekhar, learned counsel for the 1st respondent. The grounds of appeal read to the effect that this appeal is sought to be maintained not only against the order dated 09.02.2007 allowing the writ petition, but also the order dated 21.08.2008 dismissing the appellant-college's review petition. However, Order 47 Rule 7 CPC makes it clear that an appeal would not lie against an order rejecting an application for review. This legal

position is well settled (BUSSA OVERSEAS AND PROPERTIES PRIVATE LIMITED V/s. UNION OF INDIA[1]). We therefore limit our consideration in this appeal to the validity of the order dated 09.02.2007 passed by the learned Judge allowing the writ petition.

It appears that the 1st respondent/writ petitioner was reinstated in service pursuant to the order under appeal on 02.05.2008. According to Sri Sudheer Kumar, learned counsel, he availed medical leave on 03.08.2009 and thereafter failed to return. This is disputed by Sri P.S.Rajasekhar, learned counsel. However, the 1st respondent/writ petitioner admittedly attained the age of superannuation on 31.10.2015. This Court is not inclined to go into the events that transpired after reinstatement of the 1st respondent/writ petitioner. The only issue that is canvassed before us in this appeal is with regard to the back wages payable to the 1st respondent/writ petitioner.

Sri Sudheer Kumar, learned counsel, would contend that there was no averment in the affidavit filed in support of the writ petition that the 1st respondent/writ petitioner was not employed elsewhere after his services were retrenched in January, 1987, and that, in the absence of such an averment, the learned Judge ought not to have granted full back wages to him. Sri P.S.Rajasekhar, learned counsel, would however rebut this contention by pointing out that the prayer in the writ petition itself clearly indicated this aspect and that his client's entitlement to arrears of salary could not be doubted.

Both the learned counsel would rely on case law in support of their contentions.

In RAJASTHAN LALIT KALA ACADEMY V/s. RADHEY SHYAM[2], the Supreme Court observed that once the termination of services of an employee is held to be illegal, the relief of reinstatement is ordinarily available but the relief of full back wages need not be granted automatically in every case where the Labour Court/ Industrial Tribunal records the finding that such termination of services of the workman was in violation of the provisions of the Industrial Disputes Act, 1947. Various factors were held to have bearing on this aspect, such as, nature of appointment, period for which the workman had worked and the delay in raising the industrial dispute.

In REETU MARBLES V/s. PRABHAKANT SHUKLA[3], the Supreme Court observed that payment of back wages has a discretionary element involved in it and each case would have to be dealt with depending upon the circumstances therein and no straitjacket formula can be evolved. In DEEPALI GUNDU SURWASE V/s. KRANTI JUNIOR ADHYAPAK MAHAVIDYALAYA[4], it was observed that in cases of wrongful termination of services, reinstatement with continuity of service and back wages is the normal rule but the same would be subject to the rider 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, the financial condition of the employer and similar other factors.

It is however relevant to note that in the very same judgment, the Supreme Court observed that in cases where the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions, then the Court or the Tribunal would be fully justified in directing payment of full back wages and such a direction should not be interfered with merely because there is a possibility of forming a different opinion on the entitlement of the employee/ workman to get full back wages or the employer's obligation to pay the same.

It was further observed that Courts must always keep in mind that in cases of wrongful/illegal termination of services, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer on his wrongdoings by relieving him of the burden of paying the employee/workman his dues in the form of full back wages. I n FISHERIES DEPARTMENT, STATE OF UTTAR PRADESH V/s. CHARAN SINGH[5], the observations made in DEEPALI GUNDU SURWASE4 were extracted and affirmed. These observations read to the effect that if the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him to specifically plead and prove that during the intervening period, the employee was gainfully employed and was getting the same emoluments.

pay back wages and emoluments.

In RAJ KUMAR DIXIT V/s. VIJAY KUMAR GAURI SHANKER[6], it was held that if the termination order is set aside by the Labour Court, reinstatement is the normal rule and awarding of back wages must follow, but the same need not be awarded if the workman is either gainfully employed during the period of adjudication or if the employer is facing any financial crunch.

Though most of the aforestated judgments arose in relation to labour and industrial laws and the case on hand does not arise under the Industrial Disputes Act, 1947, we find that the broad principles laid down in the above case law do not come to the aid of the appellant-college. The finding that the appellant-college acted in violation of mandate of the Act of 1982, while effecting retrenchment of the 1st respondent/writ petitioner's services, has now attained finality. There is no indication of any order having been passed by the Government in the review said to have been filed by the appellant-college in relation to the revision order.

The observations in DEEPALI GUNDU SURWASE4 and CHARAN SINGH5 clearly posit that an employer who has wrongfully terminated the services of an employee cannot be rewarded by allowing him the premium of not paying back wages despite illegally terminating the services of such employee. As pointed out therein, the burden would be upon the employer to dislodge this by either adducing evidence of gainful employment of the employee concerned or of financial incapacity. Though Sri M.

Sudheer Kumar, learned counsel, would contend that no averment was made by the 1st respondent/writ petitioner in the writ affidavit to the effect that he was not gainfully employed after his removal from service in January, 1987, the very fact that the 1st respondent/writ petitioner prayed for payment of arrears of the salaries from the date of his removal/retrenchment till the date of reinstatement clearly manifests his claim in this regard. Once such a claim was made, the burden shifted to the appellantcollege to prove that he was not entitled to such relief by adducing suitable evidence, be it of his gainful employment elsewhere or of its financial incapacity. Significantly, the appellant-college filed a petition seeking review of the order dated 09.02.

2007 in so far as it related to payment of back wages to the 1st respondent/writ petitioner. In the order dated 28.01.

said review petition, the learned Judge specifically adverted to the fact that the appellant-college had not even stated in the affidavit filed in support of the review petition that the 1st respondent/writ petitioner was gainfully employed after the date of his termination from its service. Despite this aspect of the matter being pointed out by the learned Judge while dismissing the review petition, the appellant-college has not even made an endeavour to either plead or adduce evidence before us that the 1st respondent/writ petitioner was gainfully employed after his retrenchment from its service in the year 1987. There is no evidence let in before us that the appellant-college suffers from any financial incapacity whereby it can be granted relief.

Having willfully kept the 1st respondent/writ petitioner out of service in spite of suffering the adverse order passed by the Commissioner way back in April, 1993 itself, it is not open to the appellant-college to now seek to wash its hands off its obligation to the 1st respondent/writ petitioner. The appellantcollege has no one to blame but itself and must necessarily pay for its own complacency and obduracy in deliberately disobeying the mandate of the competent authority.

On the above analysis, we are of the opinion that the learned Judge was justified in directing payment of back wages for the entire period and no interference is warranted with the said order. The writ appeal is devoid of merit and is accordingly dismissed. Pending miscellaneous petitions shall also stand dismissed. No order as to costs. ______________________ SANJAY KUMAR, J _______________________________ DR. B.SIVA SANKARA RAO, J 28th JUNE, 2016 Svv [1] (2016) 4 SCC 696 [2] (2008) 13 SCC 248 [3] (2010) 2 SCC 70 [4] (2013) 10 SCC 324

[5] (2015) 8 SCC 150 [6] (2015) 9 SCC 345