The doctrine of 'no work no pay' applies unless the employee proves lack of gainful employment during the disputed period, placing the burden of proof on both parties.

JUDGMENT :

(S.G. MEHARE, J.)

1. Rule. Rule made returnable forthwith. Heard finally with the consent of the parties.

2. The petitioner being a Shunter in railways has impugned the order partly of the learned Central Administrative Tribunal, Mumbai dated 23.09.2013 passed in Original Application No.202 of 2008 to the extent of not granting him back-wages by applying the doctrine of ‘no work no pay’.

3. The facts are not disputed. The petitioner was booked for duty at Mudkhed Station. However, before he reached there, another employee for discharging the same duty was available. Therefore, he left the station signing the register. On these allegations, the petitioner was suspended. The inquiry was initiated against him. The disciplinary authority had terminated him from services. The petitioner had impugned the said order. The Divisional Mechanical Engineer, Hyderabad, he allowed his appeal partly and converted his removal to compulsory retirement. He then preferred the revision before the Divisional Railway Manager (DRM). He also rejected it. Lastly, he filed the original application before the Central Administrative Tribunal by which the order of his compulsory retirement has been quashed and set aside. However, the learned Central Administrative Tribunal find it appropriate to apply the doctrine of ‘no work no pay’ and denied the back-wages.

4. In pursuance to the undisputed facts about quashing and setting aside the termination and revocation for compulsory retirement, a small question that has been raised is, whether in given circumstances, the doctrine of ‘no work no pay’ would apply to the case of the petitioner.

5. Learned counsel for the petitioner referring to the findings of the Central Administrative Tribunal has vehemently argued that the doctrine has been applied with predetermined mind. It was passing in the mind of the Presiding Officer of the Central Administrative Tribunal that no relief of back-wages should be granted to the petitioner. To bolster his arguments, he referred to the findings of the Central Administrative Tribunal about the confession that he did not sign the appearance register before returning to Purna and due to his failure, the goods train was detained and the blame for such acts were not rebutted. He would also refer to the findings in para 15, that since the applicant has admitted in the inquiry as also borne out by the Appellate order that he has not taken permission of the RSS at Mudkhed while finally leaving from Mudkhed to Purna, he is guilty of absconding in the sense that the Railway administration uses the term and to that extent the charges remains proved. He also referred to the findings of the Central Administrative Tribunal that since the petitioner has not worked for the entire period from 22.10.1999 to 31.08.2008, the principle of ‘no work no pay’ would apply. He has strenuously argued that the petitioner is a Class-IV and low paid employee. His back-wages are not heavily burdened the employer. The employer never denied that after the suspension was revoked, he deliberately did not join. On the contrary, the petitioner was ever ready to join and discharge the duties. However, the employer did not allow him. He further submitted that there was nothing on record to establish that during the period of his not discharging the services, he was in another employment. The employer also did not raise any objection as such in the entire petition. Therefore, the doctrine of ‘no work no pay’ would not have been applied. To bolster his arguments, he relied on the case of Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigam Limited and Others of the Hon’ble Supreme Court passed in Civil Appeal No.11325 of 2011 dated 09.12.2015. To his fairness, he also provided the celebrated judgment of the Hon’ble Supreme Court on the doctrine of ‘no work no pay’ of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ed) and Others, (2013) 9 SCR 1. Lastly, he would submit that the petitioner was no