1. Employee removed from service for unauthorized occupation of quarters following a transfer order; transfer order subsequently quashed; dispute over salary for the non-working period. (Para 2 , 3 , 4 , 5 , 6 , 7 )
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1998 Supreme(SC) 86
1998(1) Supreme 281
SUPREME COURT OF INDIA
(From CAT, Allahabad)
S.P. Bharucha and K. Venkataswami, JJ.
Raj Bahadur Sharma (dead) through L.Rs. -Appellants
versus
Union of India & Ors. -Respondents
Civil Appeal No. 313 of 1998
(Arising out of S.L.P. (C) No. 13507 of 1996)
Decided on 20-1-1998
Counsel for the Parties :
For the Appellants : Mr. S.K. Misra, Advocate.
For the Respondents : Mr. A.K. Sharma, Advocate.
Important Points
Where an employee cannot join a transferred post due to administrative failure (lack of relieving orders/passes) and the transfer order is later quashed, the employee is not at fault. In such cases, the court may award partial salary to meet the ends of justice despite no actual work.
Subject
Employment Law - Salary and Wages
Act Referred
Headnote
SERVICE LAW-Deceased appellant was an employee in Railways - Transfer order-Appellant failed to join at transferred place and continued to occupy the quarter alleging that no relieving order was given and relevant passes were not made available-Department proceeding for unauthorised occupation of the quarter after orders of transfer-Removal from service-Challenged-Order of transfer quashed-Tribunal held that his stay at the original place after order of transfer cannot be construed as authorised one-As appellant factually did not work after transfer order was served upon him, he was held not entitled to pay and allowances for the period-Tribunal while allowing consequential benefits from date of his removal to date of his reinstatement, directed payment of salary only from date of reinstatement - Appeal against-Whether the respondents are justified in depriving the appellant the salary for the period from date of his transfer to the date of reinstatement?-Held, ends of justice would be met by directing the respondents to pay 50% of the salary and allowances for the period.
Held, that the appellant was not at fault in not joining at the transferred place. Therefore, when he was not at fault he cannot be blamed for the consequences entirely. It is also a fact that he did not work factually for the period in question. Taking all these factors into consideration, we are of the view that the ends of justice would be met by directing the respondents to pay 50% of the salary and allowances for the period in question to the legal representatives of the deceased appellant within six months. (Paras 12, 13)
Legal Category Hierarchy
Table of Contents
2. Appellant contended that lack of relieving orders and passes prevented joining duty, rendering disciplinary proceedings and denial of salary for the period invalid. (Para 8 , 10 )
3. The administration failed to deny that the employee was not provided relieving orders or passes, indicating the employee was not at fault for not joining. (Para 11 , 12 )
4. An employee not at fault for failing to join a transferred post cannot be entirely blamed, though lack of actual work may limit full salary recovery. (Para 12 , 13 )
5. Respondents directed to pay 50% of salary and allowances for the period in question to the legal representatives of the deceased appellant. (Para 13 )
6. Does the failure of administration to provide relieving orders and passes excuse an employee's failure to join a transferred post?
Yes. If the administration disables the employee from joining by not providing necessary relieving orders and passes, and fails to deny such assertions, the employee is not considered at fault for not joining the transferred place. (Para 10 , 11 , 12 )
7. Is an employee entitled to full salary for a period during which they did not actually work, even if they were not at fault for the absence?
Not necessarily. While an employee not at fault should not bear all consequences, the fact that they did not actually work during the period may justify a reduction in the salary awarded to meet the ends of justice. (Para 12 , 13 )
JUDGMENT
K. Venkataswami, J.-Special leave granted.
2. The short question that arises for our consideration in this appeal is whether the respondents are justified in depriving the appellant (who has died pending appeal) the salary for the period from 20.2.81 to 17.5.88. The legal representatives of the deceased appellant are prosecuting this appeal. For the sake of convenience, the deceased appellant will be referred to herein as the appellant.
3. To appreciate the question, brief facts are necessary, which are as follows:-
The deceased appellant was an employee in the Railways. By an order dated 28.6.77, he was placed under suspension with effect from 1.7.77. The suspension was revoked by another order on 28.1.81. He preferred an application successfully under the provisions of the Payment of Wages Act claiming wages for the period he was kept under suspension. The respondents preferred an appeal to the learned District Judge against the order of the Authority under the Payment of Wages Act and the appeal was allowed. Against that, the appellant preferred a Writ Petition before the High Court at Allahabad and that was allowed by the High Court on 5.9.84.
4. In the meanwhile, the appellant was transferred from Izatnagar to Kashipur. However, according to the appellant, since no relieving order was given and relevant passes were not made available, he could not join at the transferred place. Therefore, he continued to occupy the quarter at Izatnagar. For the said unauthorised occupation of the quarter after orders of transfer, departmental proceedings were initiated against the appellant and ultimately on that count, he was removed from service on 31.5.84.
5. The appeal filed against the removal from service was rejected in limine on 2.11.84. Challenging the order of removal as confirmed by the Appellate Authority, he preferred a Writ Petition in the High Court which was subsequently transferred to the Central Administrative Tribunal. The Tribunal by an order dated 8.9.97 set aside the order of removal as confirmed by the Appellate Authority, with a direction to dispose of the appeal afresh with a reasoned order.
6. The Appellate Authority, after remand by the Tribunal, set aside the order of removal and imposed a minor punishment of withholding increments for three years. However, the Appellate Authority declined the relief of salary for the period from the date of transfer till he was allowed to join duty.
7. In the meanwhile, the appellant also initiated parallel proceedings in the Civil Court challenging the order of transfer itself and the trial Court decreed the suit quashing the order of transfer. The appeals filed by the Railways before the Appellate Court and the High Court were dismissed. The result was the order of transfer was quashed. Since the order of transfer itself was quashed, the appellant claimed his salary from the date of transfer till he was permitted to join duty.
8. The appellant again preferred an application before the Central Administrative Tribunal challenging the order of the Appellate Authority imposing minor punishment and declining to pay salary from the date of transfer till he was allowed to join the duty. The contention before the Tribunal was that the order of transfer itself having been quashed by the trial Court and its judgment having been upheld by the High Court, the disciplinary proceedings arising out of such illegal order could not stand in the way of the appellant getting his salary for the said period. It was also contended that his stay in the quarter at the original place (Izatnagar) after the transfer order was quashed cannot be treated as unauthorised one. It was also the specific case of the appellant that he was not at fault in not joining at the transferred place as he was not given the relieving order and necessary passes to enable him to join at the transferred place. Therefore, the initiation of disciplinary proceedings itself must be held to be bad. According to the appellant,
