Point of Law: Dismissal from service - When an order of termination by way of punishment i.e. dismissal or removal is set aside being in violation of principle of natural justice, such an order of punishment renders in nullity and legal consequence is that concerned employee was never terminated by way of removal or dismissal and has already continued in service.

JUDGMENT :

RAJESH SINGH CHAUHAN, J.

1. Heard Sri. Ajay Kishor Pandey, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

2. By means of this petition, the petitioner has prayed following reliefs:-

“(i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 25.11.2017 passed by Opposite party no. 3.

(ii) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pay all back wages, increment with 12% interest and the seniority maintained at the time of joining.”

3. Learned counsel for the petitioner has contended that since the impugned order of dismissal was illegal and arbitrary, therefore, it was quashed by this Court vide judgment and order dated 17.11.2016 passed in Service Single No. 9088 of 2016, Dharmendra Kumar Yadav vs. State of U.P. and Others. Sri. Pandey has further submitted that the judgment and order dated 17.11.2016 has not been assailed by the State Government by filing appeal before this Court or before the Hon'ble Supreme Court, therefore, the judgment and order dated 17.11.2016 has attained finality. Learned counsel for the petitioner has further submitted that even the reason indicated in the impugned order, which was quashed by this Court, has also lost its efficacy inasmuch as in the criminal case indicated in the impugned order, the petitioner has already been acquitted.

4. Learned Standing Counsel has, however, tried to defend the impugned order dated 25.11.2017 but on being confronted on the point that when the dismissal order has already been quashed by this Court treating the same as illegal and arbitrary, as to how the petitioner may be denied the benefit of arrears of salary w.e.f. the date of dismissal to his reinstatement, learned Standing Counsel could not explain the said anomaly of the impugned order dated 25.11.2017.

5. Having heard learned counsel for the parties and perused the material available on record, I am of the considered opinion that if the punishment order of dismissal has already been quashed by this Court and the order of this Court has attained finality, then it shall be presumed that the punishment order has lost its efficacy and it shall be treated as if it was not issued against the petitioner. Further, if the punishment order was declared non-est in the eyes of law, then the benefit of salary from the date of dismissal till the date of reinstatement may not be denied. This Court in U.P.S.R.T.C. and Others vs. Presiding Officer, Labour Court, Faizabad and Another, 2019 (5) AWC 4287 (LB), has decided more or less the identical controversy holding that the employee whose punishment order has been set aside shall be entitled for all benefits. Paragraphs 20 to 24 of the aforesaid judgment are being reproduced herein-below:

“20. When an order of termination by way of punishment i.e. dismissal or removal is set aside being in violation of principle of natural justice, such an order of punishment renders in nullity and legal consequence is that concerned employee was never terminated by way of removal or dismissal and has already continued in service. That being so, question of direction of reinstatement in fact is a misnomer. Since such a person in law continued in service without any interruption as if no order of termination was ever passed. It is only to avoid any administrative doubt that a direction of reinstatement is normally given but the nature of such an order is nothing but a declaration that termination of service by way of dismissal or removal is a nullity and the natural consequence is that incumbent concerned is deemed to continue in service as for he was never terminated. That being so, it is normal rule that incumbent is entitle for all consequential benefits as for he was never terminated. Consequently when an order of termination is set aside on the ground that it was not legally passed following the procedure laid down in law, the concerned employee is not