The grant of backwages cannot be presumed in the relief of reinstatement if it is not mentioned in the order.

M. Chockalingam, J.

This petition coming on for orders upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr. S. Ravindran for T.S. Gopalan and Co., Advocate for the Petitioner and of Mr. Thirumalai, Advocate for the 2nd Respondent and of C. Devi, Government Advocate for the 1st Respondent the Court made the following order:

This is a petition for clarification of the order of this Court made in W.P. No. 11331/2000 whereby this Court after hearing both sides, affirmed the punishment awarded by the fifth Respondent therein to the second Respondent employee, and also held that there was no impediment for the Petitioner in giving all the pensionary benefits as far as the second Respondent was concerned as one warranted by law.

2. The only contention put forth by the learned Counsel for the Petitioner who has brought forth this petition, is that though this Court by the said order has affirmed the order of the fifth Respondent which modified the punishment, it is silent about the backwages. The learned Counsel would further urge that even the appellate authority at the time of modifying the order or this Court, at the time of disposal of the writ petition has not whispered anything about this backwages; that now the second Respondent makes a claim in respect of the backwages, and under the circumstances, a clarification has got to be made in this regard.

3. The learned Counsel relying on a decision of the Apex Court State Bank of India Vs. Ram Chandra Dubey and Others, (2001) 1 SCC 73, would submit that, when an order of reinstatement is made and it is silent about the backwages, it cannot be inferred or presumed that the backwages would follow, and hence the order has got to be clarified as to the backwages during the relevant period.

4. The Court heard the learned Counsel for the second Respondent employee. According, to him, the Court after hearing the Counsel on either side, on the merits of the matter, took the view that the second Respondent was entitled for all the pensionary benefits, and thus the earlier order of modification of the punishment by the first Respondent was also affirmed, and it would be quite clear that it was not a denial of backwages, and under the circumstances, the clarification does not arise, and hence this petition has got to be dismissed.

5. After hearing the learned Counsel on either side, and on appraisal of the factual and legal position, this Court is of the considered opinion that it requires a clarification under the stated circumstances. It is not in controversy that the finding of the Enquiry Officer was challenged by the second Respondent by way of a revision before the first Respondent, and when an order came to be passed, the first Respondent imposed a lesser punishment. There was a modification of punishment which was to the effect of awarding the punishment of stoppage of increment for a period of five years without cumulative effect. The second Respondent has also retired from service in the year 2006. It is an admitted position that during the relevant period for which backwages are claimed, he was outside service because he was under suspension. Now the only question that would arise for consideration is whether he could claim backwages during the relevant period. A reading of the modified order by the first Respondent does not speak anything about the payment of backwages. Once the punishment was modified and the authority has not spoken anything in its order as to the payment of backwages, the contention of the learned Counsel for the Petitioner seeking clarification by way of petition, has got to be accepted since the Supreme Court in the decision cited supra, has categorically held that it cannot be presumed that the grant of backwages is one implied in the relief of reinstatement. In such circumstances applying the ratio laid down by the Apex Court in the above decision and considering the fact that it is also not whispered i