The principle of 'No Work No Pay' may be applied in cases where the employee's guilt is not effaced, and the period of non-service may be treated as not counted for the purpose of payment of salary.

JUDGMENT :

VIPIN SANGHI, J.

1. The present Special Appeal is directed against the judgment rendered by the learned Single Judge in Writ Petition (S/S) No. 608 of 2019, dated 04.12.2020. By the impugned judgment, the learned Single Judge allowed the writ petition preferred by the respondent/writ petitioner.

2. Brief facts of the case are that the respondent was appointed in Indo Tibetan Border Police (ITBP) on 19.09.1986; he was dismissed from service vide order dated 04.06.1998. He challenged his dismissal by preferring Writ Petition (S/S) No. 338 of 2000 (Old No. 6731 of 1999) before the High Court of judicature at Allahabad. After creation of the High Court of Uttarakhand, the said petition was transferred to this Court. The Division Bench of this Court set aside the dismissal order vide judgment dated 04.08.2004 on the ground that the punishment of dismissal was disproportionate and shocking in nature. The Court proceeded to substitute the penalty imposed upon the respondent from dismissal to reduction in rank, i.e. from the rank of Head Constable to the rank of Constable. The said reduction in rank was to continue for two months from the date of production of the certified copy of the order, where after the respondent was to be reverted back to the higher rank of Head Constable. In compliance of the said judgment, the respondent was reinstated in service on 16.08.2004 on the post of Constable/G.D. However, he was reinstated in provisional pay of Rs. 3350/- per month equal to regular pay prevailing on 01.11.1997 under the pay scale of Rs. 2750-70-3800-75-4400. After completion of two months, i.e. on 15.10.2004, he was fixed in the provisional pay on the post of Head Constable/G.D. i.e. Rs. 3370/- per month equal to the regular pay as on 10.10.1997 under the pay scale of Rs. 3200-85-4900.

3. The respondent filed a clarification application No. 183 of 2012 in the disposed of Writ Petition (S/S) No. 338 of 2000. The clarification sought by the respondent was in relation to the salary payable to him from the date of his dismissal, to the date of reinstatement in service. The said application was disposed of by the Court on 03.04.2012 with the following observation:

“A disciplinary proceeding resulted in passing of an order of dismissal of the petitioner. In a writ petition, the order of punishment was altered by providing that the writ petitioner shall be punished by reverting him from the post of head constable to the post of constable for two months, whereafter, the petitioner shall be given the rank of head constable. This order is so clear that there is no question of giving any clarification in relation thereto. While dealing with the matter and directing in the manner as above, the Division Bench allowed reinstatement, but did not give any direction in relation to the period the petitioner remained out of employment from the date of his dismissal and until the date of passing the order of the Division Bench and, accordingly, it must be, in Law, deemed that the Division Bench left the matter there. If such a situation is dealt with by the Rules governing the service conditions of the petitioner, it goes without saying that the matter has to be dealt with in terms of those Rules. However, the order, at the same time, in so many words directed reinstatement of the petitioner and, accordingly, the status of the petitioner is required to be ascertained on the basis thereof read with the relevant provisions of the Service Rules. We, accordingly, find no scope to give any clarification to the order as above.”

(Emphasis supplied)

4. The petitioner was aggrieved by the nonpayment of salary for the period that he remained dismissed from service and also by the fixation of provisional salary, instead of regular salary, after his reinstatement. The learned Single Judge has allowed the writ petition thereby directing the appellant to grant him regular salary, and to pay arrears of difference between the regular salary and the provisional sal