1. Termination of service — High Court finding of illegality — Dispute over entitlement to back wages. (Para 3 )
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1993 Supreme(SC) 40
SUPREME COURT OF INDIA
A.M.Ahmadi : N.M.Kasliwal
Manorma Verma
Versus
State Of Bihar
Case No. : 197 of 1993
Date of Decision : 1/12/93
Back wages are the normal consequence of illegal termination of service unless reasons exist to justify a departure. Factual findings of a lower court regarding the legality of appointment are binding if not challenged through a timely appeal.
Headnote:(A) Service Law - Termination of Service - Back Wages - Termination of service held illegal by High Court - State's contention regarding invalidity of initial appointment cannot be raised for the first time before the Supreme Court if the High Court's finding on the same was not challenged in appeal - Findings of fact by the lower court are binding unless reversed in appeal. (Para 3)
(B) Service Law - Back Wages - Ordinarily, the grant of back wages must follow a finding that termination of service was illegal, unless reasons on record justify a departure from this normal order - Absence of evidence showing the employee was gainfully employed during the period of unemployment justifies the award of back wages. (Para 4)
Facts of the case:
The appellant's service as a house-keeper was terminated. The High Court found the termination illegal and ordered reinstatement but denied back wages. The respondent argued that the initial appointment was invalid, a point the High Court had previously dismissed noting the appointment was against a sanctioned post and no evidence was brought to show the appointment was illegal.
Findings of Court:
The court held that the legality of the appointment was already decided by the High Court and not challenged by the respondent in appeal. Furthermore, since the termination was illegal and there was no evidence on record to show that the appellant was gainfully employed elsewhere during the period of service termination, the denial of back wages was unjustified.
Issues: Whether the respondent could challenge the legality of the initial appointment at the appellate stage and whether back wages are entitled as a matter of course upon a finding of illegal termination.
Ratio Decidendi: A finding of illegal termination normally entails the grant of back wages unless specific reasons exist to justify a departure. Additionally, factual findings of a lower court cannot be contested by referring to files if the specific finding was not challenged through an appeal.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Validity of initial appointment — Contention that illegal appointment precludes entitlement to back wages. (Para 3 )
3. Findings on appointment validity concluded unless reversed in appeal — Prohibition against urging points across the bar by referring to files. (Para 3 )
4. Illegal termination of service — Presumption in favor of back wages — Departure permissible only upon record of justifying reasons or gainful employment. (Para 4 )
5. Delay condoned — Special leave granted — Appeal allowed — Back wages awarded from date of termination to reinstatement, payable within three months. (Para 1 , 2 , 4 )
6. Can a party challenge a factual finding of a lower court by referring to files if they failed to file a counter?
No. Once a point is concluded by a court, it remains so unless reversed in appeal. Counsel cannot be permitted to urge such points across the bar by referring to files. (Para 3 )
7. Is the grant of back wages automatic upon a finding of illegal termination?
Ordinarily, the grant of back wages must follow a finding that termination was illegal, unless there are reasons on record justifying a departure from this normal order. (Para 4 )
8. What evidence can justify the denial of back wages in cases of illegal termination?
Back wages may be denied if there are reasons on record justifying a departure from the normal order or evidence that the employee was gainfully employed elsewhere during the period of service loss. (Para 4 )
(1) DELAY condoned.
(2) SPECIAL Leave granted.
(3) WE have heard counsel for the parties. The High court came to the conclusion that the termination of service of the appellant was illegal and unsustainable. An attempt was made by Mr B.B. Singh, learned counsel for the State of Bihar to satisfy us that the initial appointment of the appellant was invalid and illegal and, therefore, she was not entitled to the benefit of back wages. We find from the order of the High court against which the State has not appealed that the High court came to the conclusion that "nothing has been brought on the record nor argued that the petitioners appointment as house- keeper was illegal or made by an authority who had no jurisdiction to make the appointment". On the other hand. High court noted that her appointment was made against a sanctioned post. Mr B.B. Singh submitted that this conclusion of the High court was on account of the State government having not filed a counter to the petition filed by the appellant. Even if that contention is valid, the point is concluded by the High court unless reversed in appeal. This court cannot permit counsel to urge the point across the bar by referring to the files.
(4) WE do not see any justification for the High court not allowing the appellant back wages after it came to the conclusion that the termination was illegal. Ordinarily, the consequential order of grant of back wages must follow, unless there are reasons on record which would justify a departure from the normal order. We do not see any reasons on record to come to the conclusion that the appellant was not entitled to back wages. There is also nothing on record to show that during the period she was out of service, she was gainfully employed elsewhere. In the circumstances we allow this appeal and set aside that part of the High courts order by which the appellant was denied back wages and award her back wages from the date of termination of service till she was reinstated in service under the impugned order of the High court. The appellant will be paid her back wages within three months from today, There will be no order as to costs.
