Hem Saran V. Principal Commissioner of Income Tax and Union of India

CWP/3045/2013

AI Insights

The case involves two interconnected writ petitions arising from a decision by the Central Administrative Tribunal (CAT) which directed the reinstatement of an employee, Hem Saran, without back wages. The employee had been terminated from his position as a daily wager in the Income Tax Department, and he sought full back wages through CWP No. 3045 of 2013. The employer, represented in CWP No. 661 of 2016, contested the reinstatement order, arguing it was barred by the limitation period. The High Court of Himachal Pradesh, after considering the circumstances, particularly the destruction of records in a fire, upheld the CAT's decision to reinstate the employee but denied back wages, citing the employee's non-continuous service and the legal limitation period for filing such applications.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 800543 (HC-HIMACHAL_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 15-07-2021
• Assessment Year: misc
• Laws Referred To: Administrative Tribunal Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: D N SHARMA; BALRAM SHARMA
• Assessee Lawyers: VINAY KUTHIALA; VANDANA KUTHIALA
• Keywords: Accountability; Back Wages; Daily wager; Fire incident; Limitation Period; Reinstatement
• Section: 21

Judgement Text

"1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P. No. 661 of 2016 alongwith CWP No. 3045 of 2013 Date of decision: 15.07.2021 1. CWP No. 661 of 2016 Principal Commissioner of Income Tax …Petitioner Versus Hem Saran and another ...Respondents 2. CWP No. 3045 of 2013 Hem Sharan …Petitioner Versus Union of India and another ...Respondents ______________________________________________________ Coram: The Hon’ble Mr. Justice Ravi Malimath, Acting Chief Justice The Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge Whether approved for reporting1 : For the Petitioner(s): Mr. Vinay Kuthiala, Senior Advocate, with Ms. Vandana Kuthiala, Advocate, for the petitioner in CWP No. 661 of 2016 and for respondent No. 2 in CWP No. 3045 of 2013. 1 Whether Reporters of local newspaper are permitted to see the judgment ? 2 For the Respondents: Mr. D.N. Sharma, Advocate, for respondent No. 1 in CWP No. 661 of 2016 and for the petitioner in CWP No. 3045 of 2013. Mr. Balram Sharma, ASGI, for respondent No. 2 in CWP No. 661 of 2016 and for respondent No. 1 in CWP No. 3045 of 2013. Through Video Conference ______________________________________________________ Jyotsna Rewal Dua,J. Both the parties which contested the lis before the learned Central Administrative Tribunal (CAT) are aggrieved of the order passed by the learned Tribunal on 27.09.2012, whereby the employer was directed to reinstate the employee without back wages. CWP No. 3045 of 2013 has been filed by the employee seeking full back wages, whereas the employer has filed CWP No. 661 of 2016 seeking quashing of the order dated 27.09.2012 directing reinstatement of the employee. Being inter-connected, both these petitions are taken up together for decision. For convenience, the employee is being referred hereinafter as the petitioner and the employer as the respondent. 2. An original application was filed by the petitioner on 26.09.2010 before the learned Tribunal averring therein that he 3 was appointed as water-man by the respondents on daily wages w.e.f. 30.07.1997 and worked as such upto 31.03.2001, when his services were orally terminated in violation of law. He prayed for a direction to the respondents to reinstate him w.e.f. his date of termination i.e. 31.03.2001, alongwith all consequential benefits. 3. The stand of the respondents before the learned Tribunal was that the petitioner was appointed on temporary basis as daily wage worker on 30.07.1997. The appointment cannot bestow any right upon the petitioner for continuity or regular appointment. The respondents further pleaded that the department did not have any record reflecting termination of petitioner’s services. The respondents also submitted that there was no record available with them to show that petitioner continuously served with them upto 31.03.2001. A specific plea was taken that the petitioner never visited the department after 31.03.2001, the date on which his serves were allegedly terminated. 4. On 27.09.2012, the learned Tribunal while deciding the original application noticed that the respondents could not produce the relevant documents on the ground that all the records of the Income Tax Department were destroyed in a devastating fire 4 that broke out in Railway Board Building in the month of February, 2001. The Muster Roll for the relevant period that the department was asked to produce before the Court was also stated to have been destroyed in the said fire. Holding that the respondents cannot wriggle out of their accountability by arguing that their record had been gutted in fire, the learned Tribunal condoned the delay in filing the original application and directed the respondents to reinstate the petitioner, however, without any back wages. The operative part of the order reads as under :- “13. The O.A. Shall, accordingly, stand allowed. The respondents are directed to re-instate the applicant forthwith to the very placement he occupied before the impugned oral termination. 14. In view, however, of the fact that applicant did not function after his oral termination till reinstatement, he would not be entitled to wages for that period. However, the fixture of pay w.e.f. the date of termination till reinstatement shall be notional in character.” Aggrieved, the petitioner has preferred CWP No. 3045 of 2013. Learned counsel for the petitioner submits that after agreeing with the petitioner’s submissions, learned Tribunal , in all fairness, should have held him entitled for back wages. The respondents have also filed CWP No. 661 of 2016 on the ground that the learned Tribunal erred in exercising the jurisdiction in the 5 case as the original application was hopelessly barred by limitation prescribed under Section 21 of the Administrative Tribunal Act (for short the Act). 5. It is admitted case of the parties that the petitioner was employed by the respondents as a daily wager w.e.f. 30.07.1997. According to the petitioner, he had worked continuously for next three years i.e. till 31.03.2001. The respondents are not in a position to controvert the date uptil which the petitioner had allegedly worked with them. Their simple stand is that record pertaining to the petitioner had been destroyed in a fire incident. Be that as it may. The petitioner chose to knock at the door of the learned Tribunal only on 26.09.2010 i.e. 9 years after the cause of action arose to him. In terms of Section 21 of the Act, the limitation period available to an aggrieved person to approach leaned Administrative Tribunal is one year. Definitely, the original application was barred by limitation. However, considering the facts and circumstances of the case, the learned Tribunal in its wisdom has condoned the delay in filing the original application. We have been informed that the impugned order stands implemented inasmuch as the petitioner has been reinstated in 6 service by the respondents. Therefore, in the factual matrix of the case, we do not deem it proper to interfere with the impugned order reinstating the petitioner, at this stage. Since the petitioner had admittedly not worked for the period in question, therefore, he is certainly not entitled to actual wages. Therefore, finding no merit, both these writ petitions are dismissed. Pending applications, if any, also stand disposed of. ( Ravi Malimath ) Acting Chief Justice 15th July, 2021 (K) ( Jyotsna Rewal Dua ) Judge 7 "