1. Termination of teacher for unauthorized absence — Reinstatement by High Court — Dispute over salary arrears for absence period under no work no pay principle. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 )
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2018 Supreme(SC) 487
SUPREME COURT OF INDIA
Arun Mishra, Uday Umesh Lalit, JJ.
District Basic Education Officer Allahabad – Appellant
VERSUS
Sushila Jaiswal (Dead) through her Lrs and Ors. – Respondents
CIVIL APPEAL NO. 5628 OF 2018 (Arising out of Special Leave Petition (Civil) No.28895 of 2017)
Decided On : 17-05-2018
Important Points
IMPORTANT POINT
A party not pursuing his/her legal rights diligently is not entitled to any relief.
No work no pay.
A party not pursuing his/her legal rights diligently is not entitled to any relief.
No work no pay.
Subject
Employment - Teacher Employment
Act Referred
Headnote
Service law – Fitness – 1st respondent on medical leave from 25.11.1999 to 30.06.2000 and from 01.08.2001 to 05.09.2002 – She not pursuing her legal rights till 2006 – Even the n the writ petition dismissed for default – 1st respondent not medically fit for the job of teacher – Granted voluntary retirement 31.07.2010 – High Court directing reinstatement and payment of full back wages with interest although 1st respondent worked only for 36 days – Not sustainable. (Para 11)
Facts of the case:
1st respondent-Sushila Jaiswal was initially appointed as Assistant Teacher in a Primary School.
1st respondent was thereafter promoted on 26.06.2000 in upper Primary Institution, Dandupur, Chaka, Allahabad. She was on medical leave from 25.11.1999 to 30.06.2000 and later from 01.08.2001 to 05.09.2002. When 1st respondent came back on 06.09.2002, she was not allowed to join.
1st respondent thereafter filed Civil Miscellaneous Writ Petition which was later dismissed for default.
Notice was issued by the appellant to 1st respondent on 07.10.2009 either to join the services or to explain unauthorized absence. Pursuant thereto, 1st respondent appeared before the appellant on 16.12.2009 but could not explain her absence. Her services were therefore terminated.
High Court directed that 1st respondent be reinstated and in so far as the period of absence was concerned an appropriate order in accordance with law be passed by the appellant.
An order was passed by the appellant treating the period between 01.08.2001 to 14.05.2010 as period of absence and directed that 1st respondent was not entitled to payment of salary for that period on the basis of “no work no pay”.
In pursuance of direction of High Court 1st respondent filed representation for payment of salary etc for the period 01.08.2001 to 14.05.2010 which was rejected.
The High Court directed that 1st respondent was entitled to arrears of salary with effect from 06.09.2002 till the date she resumed her duties i.e. till 15.05.2010 with 8½ % interest thereon, if paid within three months.
Finding of the Court:
Impugned judgment cannot be sustained.
Result : Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Entitlement to salary arrears for period of unauthorized absence — Application of no work no pay principle versus right to back wages upon reinstatement. (Para 10 )
3. Lack of diligence in pursuing legal remedies — Failure to produce medical fitness certificates — Physical incapacity to perform duties justifying denial of salary for absence. (Para 11 )
4. No work no pay principle applies to periods of unauthorized absence where the employee fails to prove fitness or diligently pursue legal remedies. (Para 11 )
5. Appeal allowed — High Court judgments set aside — Writ petition dismissed. (Para 12 )
6. When does the no work no pay principle apply to a reinstated employee?
It applies when the employee was absent without authority and failed to make serious efforts to resume duties or pursue legal rights, making the denial of salary for the absence period justified. (Para 11 )
7. Does a court-ordered reinstatement automatically entitle an employee to back wages for the period of absence?
Not necessarily. If the absence was unauthorized and the employee failed to provide required fitness certificates or diligently pursue their rights, the no work no pay principle may still apply. (Para 11 )
8. How does the failure to pursue legal remedies affect a claim for back wages?
A significant delay or failure to revive dismissed petitions indicates a lack of serious effort to pursue legal rights, which supports the justification for denying salary during the period of absence. (Para 11 )
JUDGMENT
Uday Umesh Lalit, J.
Leave granted.
2. This appeal challenges the decision dated 21.03.2017 passed by the High Court of Judicature at Allahabad dismissing Special Appeal (Defective) No.374 of 2015 preferred by the appellant herein.
3. The Institution named “Junior High School, Dandupur, Chaka, Allahabad” is an Institution recognized under UP Basic Education Act, 1872 and its staff receives salary under the provisions of UP Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978. 1st respondent-Sushila Jaiswal (since deceased, represented by her legal representatives) was initially appointed as Assistant Teacher in a Primary School on the basis of appointment letter dated 12.06.1979.
4. 1st respondent was thereafter promoted on 26.06.2000 in upper Primary Institution, Dandupur, Chaka, Allahabad. She was on medical leave from 25.11.1999 to 30.06.2000 and later from 01.08.2001 to 05.09.2002. When 1st respondent came back on 06.09.2002, she was not allowed to join. By order dated 19.10.2002 the appellant requested Chief Medical Officer, Allahabad to examine 1st respondent and to provide medical report regarding her fitness. Despite such clear requisition, no medical report was received. The request was reiterated by the appellant vide further letters dated 30.10.2002 and 25.11.2002. It appears that 1st respondent thereafter filed Civil Miscellaneous Writ Petition No.14885 of 2006 submitting that she was not being permitted to join the services and prayed for relief of reinstatement as well as for providing arrears of salary. It further appears that no order for reinstatement or for payment of any salary was passed in said writ petition and said writ petition was later dismissed for default.
5. While compiling list of Teachers who had absented themselves from School for a long period without any authority, the name of 1st respondent was included in such list and consequently notice was issued by the appellant to 1st respondent on 07.10.2009 either to join the services or to explain unauthorized absence. Pursuant thereto, 1st respondent appeared before the appellant on 16.12.2009 but could not explain her absence. By proceeding dated 14.01.2010 the appellant passed following order:-
“In the aforesaid matter, Assistant Basic Education Officer, Chaka and Smt. Sushila Jaiswal were called for hearing on 16.12.2009 in the office of District Basic Education Officer, Allahabad. At the time of hearing Smt. Jaiswal came on walker and assisted by her husband. Looking at her condition, it can be safely concluded that Smt. Jaiwal is unable to stand without the help of another person and walker and that she is not fit for teaching job. Therefore the provisions as given under the Financial Handbook Volume II, part 2 to 4, Rule 18 for persons who are absent for more than 5 years would be applicable and disciplinary actions be taken against Smt. Sushila Jaiswal.
Smt. Sushila Jaiswal is also liable for not producing fitness certificate from the office of Chief Medical Officer, Allahabad to this office and also for absenting herself from her teaching work for more than 5 years, the services of Smt. Sushila Jaiswal, Assistant Teacher, Upper Primary School, Dandupur, Block-Chaka are terminated.”
6. The aforesaid order was challenged by 1st respondent by filing Writ Petition No.18853 of 2010 and the High Court by its order dated 07.04.2010 directed CMO, Allahabad to conduct medical test in respect of 1st respondent and submit a report. The Chief Medical Officer recorded that 1st respondent was suffering from osteoarthritis and could not stand for long period but observed that she was fit for teaching job. Based on this report, the High Court vide its order dated 21.04.2010 directed that 1st respondent be reinstated and in so far as the period of absence was concerned an appropriate order in accordance with law be passed by the appellant.
7. In compliance of the order dated 21.04.2010, the appellant vide order dated 05.05
