Khan, J. -- 1. Petitioner entered service as Constable. He was later promoted to post of Head Constable under the orders of DIG. At one stage he was charged of dereliction of duty and dismissed from service pursuant to enquiry held against him vide order passed by the Superintendent of Police. He assailed his dismissal from service before State Administrative Tribunal on various grounds including picking holes on the inquiry. He also alleged that dismissal order suffered from want of jurisdiction as S.P. was not competent to impose punishment of .dismissal on him. The Tribunal partly allowed his petition holding the charges and enquiry against him in order but set aside the dismissal on the ground of incompetence of S.P. to pass the order. While doing so it referred to a judgment of this Court in 1983 JLJ 599 wherein order of dismissal of the concerned employee was held void in similar circumstances having been passed by the incompetent Authority. Drawing analogy from this, Tribunal observed The same thing happened in this case also." It accordingly quashed the order of dismissal but declined back wages to petitioner and granted liberty to Competent Authority to start fresh proceedings for his punishment.

2. Petitioner's case is that once Tribunal had found his order of dismissal incompetent and had treated it void it ought to have awarded back wages to him. Because void order was non-est and non-existent in the eye of law and would not operate against him. Therefore he was to be treated in service though fictionally and declared entitled to full back wages. Reliance in this regard is placed on a Supreme Court judgment in Union of India v. Shri Babu Ram Lalla (AIR 1988 SC 344) laying down as under :--

"Since the order of termination of service of the respondent was rightly held to be a nullity he was entitled to be paid salary on the footing that he had always continued in service and the void order was never in existence in the eye of law. "

3. This position was contested by Shri Bhargava AAG., who argued that award or refusal of back-wages to a delinquent employee was a matter falling within the domain of the Court/Tribunal and depended on facts and circumstances of a case. No delinquent employee could claim back wages as of right in disregard of the principle of "No work No wages" as it would amount to rewarding him for an otherwise proved misconduct in many cases. He referred to AIR 1997 SC 608, AIR 1994 SC 1074, AIR 1990 SC 120 and 1995(II) LLJ 669 in support.

4. The issue of payment of back wages to a delinquent employee on quashment of his order of punishment has received varying treatment by Courts from time to time. The initial view, was that quashment of punishment order would restore status quo ante and place delinquent employee in the position that obtained prior to the passing of the order entitling him to all benefits that would have accrued to him during interregnum. This found expression in various judgments of the Supreme Court including AIR 1979 SC 75, AIR 1973 SC 2251, AIR 1971 SC 2171 and AIR 1991 SC 2010.

5. The trend, however, could not last long after it was found to have resulted in some anomalous situation conferring undue gain on delinquent employees more often than not for non-fulfillment of technical requirements like non-issuance of a notice or some defect in the inquiry violative of principles of natural justice.

6. The situation was accordingly sought to be remedied by falling back upon the principle of "No work No pay". It was accordingly enunciated that even when disciplinary action against the employee was invalidated, it could not as of right entitles him to back wages for his failure or inability to do any work. This found eloquent expression in various judgments of the Apex Court including AIR 1990 SC 166, AIR 1991 SC 958 and AIR 1996 SC 2036.

Then came a new tread focusing on Public interest and public funds given regard to the conduct of delinquent employee. It was propounded that wr