R.p.mishra V. Union Of India And Ors.

WPS/3714/2013

AI Insights

R.P. Mishra, a former Naik Constable with the CISF Unit at Bhilai Steel Plant, challenged the 'DIES NON' status applied to him from 08.06.2000 to 24.12.2012 following his illegal retirement on medical grounds. Despite being declared fit for light duties by a Review Medical Board, his reinstatement was delayed, and he was not paid for the intervening period. The High Court had previously directed his reinstatement with benefits under the Persons with Disabilities Act, which was not fully complied with by the respondents. The court found that the period of 'DIES NON' was unjustified and awarded all consequential benefits to Mishra.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 724154 (HC-CHHATTISGARH)
• Appeal Type: Others
• Pronouncement Date: 23-03-2023
• Assessment Year: misc
• Other Referred Cases: Raj Kumar v. Director of Education and others, Central Bank of India And Others v. Dragendra Singh Jadon, Anima Mondal v. Union of India & Ors.
• Laws Referred To: Article 226/227 of the Constitution of India, Section 47 of the Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Rule 55 of CISF Rules 2001
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: TUSHAR DIWAN
• Assessee Lawyers: VINOD DESHMUKH
• Keywords: Consequential Benefits; Medical unfitness; No Work No Pay; DIES NON; Illegal retirement
• Section: 47; 55; 226; 227

Judgement Text

"1 AFR HIGH COURT OF CHHATTISGARH, BILASPUR Order Reserved on 29/11 /202 2 Order Delivered on 23 /03 /20 23 WPS No. 3714 of 2013 R.P. Mishra S/o S.N. Mishra Aged About 51 Years R/o Quarter No. D, Block No.8, Street No. 7, Sector 3, P.S. Bhilai Bhatti, Bhilai, District- Durg, Chhattisgarh ---- Petitioner Versus 1. Union of India, Through: The Secretary, Ministry of Home Affairs, New Delhi, Delhi. 2. Asstt. Inspector General Establishment Directorate General, Central Industrial Security Force Block 13, Cgo Complex, Lodhi Road, New Delhi- 3. 3. Dy. Inspector General Central Industrial Security Force, Unit Bhilai Steel Plant, Bhiali, District : Durg, Chhattisgarh. 4. The Commandant Central Industrial Security Force, Unit Bhilai Steel Plant, Bhilai, District : Durg, Chhattisgarh. ---- Respondents For Petitioner : Mr. Vinod Deshmukh, Adv. For Union of India : Mr. Tushar Dhar Diwan, Advocate on behalf of Ramakant Mishra, A.S.G. Hon'ble Smt. Justice Rajani Dubey, J. C A V Order 1. This petition is filed under Article 226/227 of the Constitution of India against the order dated 27.12.2012 passed by respondent No. 3 whereby the period i.e. from 08.06.2000 to 24.12.2012 has been treated as “DIES NON” (no work no pay basis) and also against the orders dated 09.09.2013 and 16.09.2013 whereby the representation/appeal of the petitioner has been rejected. 2.1 The brief facts of the case are that the petitioner was working as a Naik Constable with the CISF Unit at Bhilai Steel Plant, Bhilai. On 14.09.1997 while he was travelling in the Ahmedabad-Howra Express, the train met with an accident and the petitioner sustained grievous injuries on his head and spine. After 2 treatment, the petitioner joined his duty and worked in the establishment of the respondent at Bhilai for 2 ½ years. However, thereafter for the reasons best known to the department, the petitioner was retired from service vide Annexure-P/ 2. Subsequently, the petitioner made a request by way of mercy appeal that he should not be retired and as he was capable of doing table work, he should be permitted to perform the office duties. Accordingly, the respondents sent the petitioner to the Review Medical Board. The medical Board after re-examining the petitioner came to the conclusion that the petitioner’s physical condition is fast improving and he is fit to perform table works and other light duties except the field works. In spite of the said recommendation of the Review Medical Board, the petitioner’s request for cancellation of the order Annexure-P/2 was rejected vide order dated 05.11.2001. 2.2 Against the said action on the part of respondent authority whereby, the petitioner was retired from service on the ground of being medically unfit, he preferred a Writ Petition before this Court which was registered as WP No. 280/2001 and this Court vide order dated 14.11.2006 after hearing both the parties, allowed the said writ petition and directed to give him relief in term of Section 47 of the Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Thereafter, the respondent authorities preferred the review application bearing Rev. Application No. 1262/2007 seeking review of the order dated 14.11.2006 and vide order dated 19.11.2007 the said review application was dismissed. After that, the respondent authorities again preferred a writ appeal before the Division Bench of this Court against the order passed by this Court which was registered as Writ Appeal No. 103/2008 and the said writ appeal of the respondent authorities was also dismissed vide order dated 07.11.2012 by Division Bench of this Court. Instead of reinstatement of the petitioner with all consequential benefits, the respondent authorities in a most arbitrary manner and without application of mind vide order dated 27.12.2012 3 treated the period from 08.06.2000 i.e. from the date of illegal retirement to 24.12.2012 till the date of reinstatement as “DIES NON” (no work no pay basis). Thereafter, against the said order, the petitioner preferred an appeal to the Dy. Inspector General, CISF Unit, Bhilai, District-Durg, (C.G.) on 26.08.2013 which was dismissed vide order dated 09.09.2013. Hence, the petitioner filed this petition for the following reliefs:- “10.i. This Hon’ble Court be pleased to set aside the order dated 27.12.2012 passed by the Respondent No. 3 whereby, period i.e. from 08.06.2000 to 24.12.2012 has been treated as “DIES NON” (no work no pay basis), and also set aside the order dated 09.09.2013 and 16.09.2013 whereby, the representation of the petitioner has been rejected. 10.ii. This Hon’ble Court be pleased to direct the respondent authorities to grant all consequential benefit to the petitioner with interest. 10.iii. Any other relief as deemed fit by this Hon’ble Court. 10.iv. This Hon’ble Court be pleased to set aside the order dated 27.04.2019 with memo dated 30.04.2019 (vide Annexure P/12) and order dated 27.07.2017 in respect of denial of consequential benefits for the intervening period i.e. for the period of 12 years, 6 months and 17 days (08.06.2000 to 24.12.2012). 10.v. This Hon’ble Court be pleased to direct the respondent authority to grant all the consequential benefits for the intervening period of 12 years, 6 months and 17 days (08.06.2000 to 24.12.2012) i.e. grand of ACP, MACP – release of pay and allowances and credited of EL, HPL seniority, promotion, wages, increments, ACP/MACP and other service benefits which the petitioner is entitled for.” 3. Learned counsel for the petitioner submits that the impugned order in respect of “DIES NON” (no work no pay basis) is liable to be set aside for the reason that there was no fault of the petitioner to remain out of employment from the date of illegal retirement whereas, right from the beginning the petitioner was ready to work with the respondent authorities whereas the respondent authorities did not allow the petitioner to work by way of illegal retirement on medical ground. 4 He next submits that this Court allowed the earlier writ petition of the petitioner which was filed against the illegal retirement and instead of complying with the said order, the respondent authority approached the Division Bench by way of writ appeal which was dismissed, therefore, the petitioner is entitled to all consequential benefits from the date of premature retirement to the date of reinstatement. He further submits that the petitioner was out of employment from the date of his illegal retirement to the date of his reinstatement i.e. more than 12 years, during this period he took loan from the market on interest for maintaining his family including education of his children as the respondent authorities did not grant any retiral dues to him. Therefore, the petitioner is entitled to all the consequential benefits and the entire period of out of service must be treated as duty period for all practical purposes. The denial of consequential benefits for the intervening period i.e. for the period of 12 years, 6 months and 17 days by way of the impugned order is illegal and arbitrary, therefore the said order is liable to be set aside. The respondent authorities have not assigned any reason as to why the petitioner would not be entitled to the consequential benefits for the intervening period, particularly when he was ready to work under the department with arms/weapons, however due to illegal order of premature retirement he was not allowed to work and subsequently the illegal order of retirement has been declared invalid by this Court. Therefore, the petitioner must be regularized and the intervening period be treated as duty period/on duty for all the purposes to grant all the service benefits including pensionary benefits. He placed reliance on the decision of Hon’ble Supreme Court in the matters of Raj Kumar v. Director of Education and others reported in 2016 (149) FLR 941, Central Bank of India And Others v. Dragendra Singh Jadon reported in (2022) 2 SCC (L&S) 489; (2022) 8 SCC 378 and on the decision of High Court of Delhi in the matter of Anima Mondal v. Union of India & Ors. reported in 2012 CJ(Del) 4243. 4. Learned counsel for respondents submits that the petitioner was retired 5 from service on the ground of medical unfitness. CISF is a Central Armed Police Force. It is deployed in sensitive Sectors such as Airports, Ports, Units of the Department of Atomic Energy, the Department of Space, Delhi Metro, Power and Steel. The petitioner was medically unfit, so he was retired from his service and he was reinstatement in service w.e.f. 25.12.2012, therefore the period from 08.06.2000 to 24.12.2012 was treated as “DIES NON” on no work no pay basis. There was no specific direction to the respondent authorities in the said judgment dated 14.11.2006 therefore, respondent authorities passed suitable order as per rules and regulations, so this petition is devoid of merit and is liable to be dismissed. 5. Heard counsel for the parties and perused the material available on record. 6. Writ petition No. 280/2001 was allowed by this Court vide order dated 14.11.2006 where it was held in para-9 as under:- “9. Therefore, the petitioner cannot be denied protection available to him under Section 47 of the Act merely because he is getting invalidity pension under Rule 38 Considering that the petitioner acquired disability during his service and further considering that after discharge from the hospital, he joined his services on 31st January, 1998 and discharged his duties assigned to him for a period of approximately 2 ½ years, if the respondents found him not suitable for the post he was holding; he could be shifted to some other posts with same pay scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation whichever is earlier. No such efforts were made by the respondent. They have proceeded to hold that he is permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act. The respondent authorities filed review Application No. 1262/2007 which was dismissed on 19.11.07. The respondent again filed writ appeal (WA) No. 103/2008 which was also dismissed by the Division Bench of this Court. Admittedly, the petitioner was out of service from 08.06.2000 to 24.12.2012 and respondent authorities treated this period as “DIES NON” (no work no pay basis). 6 7. The Hon’ble Apex Court in the matter of Rajkumar (Supra) held in paras 37 and 38 which reads as under:- “37. The termination of the appellant is bad in law for non- compliance with the mandatory provisions of Section 25-F of the ID Act and also section 8(2) of the DSE Act. Further, the respondent-School has not produced any evidence on record to show that the retrenchment of the appellant was necessary as he had become ‘surplus’. The termination of the appellant was ordered in the year 2003 and he is unemployed till date. The respondents have been unable to produce any evidence to show that he was gainfully employed during that period and therefore he is entitled to back wages and other consequential benefits in view of the law laid down by this Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyala (D.ED.) and others1, wherein it was held as under; “22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter’s source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” “38. For the reason stated supra, we are of the view that the 1 (2013) 10 SCC 324 7 impugned judgment and order dated 28.07.2008 passed by the Delhi High Court is liable to be set aside and accordingly set aside, by allowing this appeal. The retrenchment of the appellant from his service is bad in law. The respondent-Managing Committee is directed to reinstate the appellant at his post. Consequently, the relief of back wages till the date of this order is awarded to the appellant, along with all consequential benefits from the date of termination of his services. The back wages shall be computed on the basis of periodical revision of wages/salary. We further make it clear that the entire amount due to the appellant must be spread over the period between the period of retrenchment and the date of this decision, which amounts to 13 years, for the reason that the appellant is entitled to the benefit under Section 89 of the Income Tax Act. The same must be complied with within six weeks from the date of receipt of the copy of this judgment.” 8. Learned counsel for the respondent submits that as per Rule 55 of CISF Rules 2001, the petitioner is not entitled to any relief. Rule 55 of CISF Rules, 2001 prescribed as under:- “55. Notwithstanding anything contained in hese rules a disciplinary authority while passing final order to impose a penalty upon an enrolled member of the Force or an appellate authority or a revising authority may, on reinstatement of an enrolled member of the Force in service after setting aside without exonerating such enrolled member of the Force of the charges which resulted in any of these penalties, after giving an opportunity to the enrolled member of the Force concerned to show cause against such action and for reasons to be recorded in writing, order that the intervening period between the date of dismissal, removal or compulsory retirement as the case may be and the date of reinstatement be treated as dies-non for purposes of service.” But in the instant case, High Court allowed the petition of the petitioner and directed the respondent authorities to give relief in terms of Section 47 of Equal Opportunities, Protection of Rights and Full Participation Act, 1995 which reads as under:- “47. Non-discrimination in Government employment-(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service; Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; 8 Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or, he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability. Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.” 9. The Hon’ble Apex Court in the matter of Central Bank of India (Supra) held in paras 10, 15, 18 and 19 which reads as under:- “10. By a judgment and order dated 7-8-2015, the learned Single Judge of the High Court, allowed the writ petition. The Single Judge held; (Dragendra Singh case, SCC OnLine MP para 6) “6. The Tribunal, upon reference made to it by the Central Government to adjudicate as to whether the respondents were justified in removing the petitioner from service, has answered the reference in negative and in favour of the petitioner workman holding that petitioner was wrongly removed from service. Accordingly, the Tribunal ordered for reinstatement, but without back wages. Legal meaning attributed to word “reinstatement” is beyond any cavil of doubt as by catena of decisions of the Hon’ble the Supreme Court and various High Courts, word “reinstatement” has been unequivocally explained to the effect that once an Authority or Court orders for reinstatement of an employee, then the position of that employee is restored back to the date on which he was removed from services. As such, the respondents were not justified having excluded the period from the date of removal of the petitioner to the date of his reinstatement and treating the same as completely dies non and also in not allowing the petitioner to get the service benefits attributable to him by by virtue of the aforesaid length of service. In the opinion of this Court, the order (Annexure P-1) passed by the respondent Bank is not in conformity with the order passed by the Tribunal. Hence, the impugned order2, so far as it relates to denying benefits to the petitioner for the intervening period (the period from the date of removal of the petitioner from service tot he date of his reinstatement), excepting denial of back wages is quashed and it is held that the petitioner shall be held entitled for all the benefits except back wages construing him to be in service from the date of removal till the date of actual reinstatement in service. Needless to mention that consequent upon the reinstatement, the petitioner 2 Central Bank of India v. Dragendra Singh Jodon, 2017 SCC OnLine MP 2334 9 is entitled for regular salary from the date of award subject to adjustment of the amount already paid under Section 17-B of the Industrial Disputes Act.” “15. The principles of res judicata are attracted where the matter in issue in the later proceedings have directly and substantially been in issue in earlier proceedings, between the same parties, in a competent forum having jurisdiction. Res judicata debars the Court from exercising jurisdiction to determine the lis, if it has attained finality between the parties. There is a distinction between res judicata and issue estoppel. In the case of issue estoppel, a party against whom an issue has been decided would be estopped from raising the same issue again.” “18. In our considered view, the learned Single Bench of the High Court rightly granted relief to the respondent. By the impugned judgment and order, the Division Bench of the High Court dismissed the appeal of the appellants and directed that the respondent would have to be treated in service from the date of removal till the date of actual reinstatement in service and would accordingly be entitled to seniority and the right to be considered for promotion, but would not be entitled to back wages.” “19. We find no infirmity with the concurrent find no infirmity with the concurrent findings of the Single Bench and the Division Bench of the High court. There is a difference between reappointment and reinstatement. Reinstatement means to return a person or thing to its previous position or status. An order of reinstatement puts a person back to the same position.” 10. Looking to the facts and circumstances of the case, it is clear that the illegal retirement of the petitioner was quashed by respondent authorities on the direction of this Court, therefore, in this background the principle of no work no pay would certainly not be attracted or applicable so far as the petitioner is concerned. This Court found that the premature retirement of the petitioner was unjustified and directed the respondent authorities to give relief in terms of Section 47 of the Act, against this order respondent authorities filed review and writ appeal and finally, the writ appeal was dismissed on 08.10.2012. During this period the petitioner was out of service without there being any fault on his part. 11. The Hon’ble Apex Court in the matter of Central Bank of India (Supra) dismissed the appeal holding in para 21 that “the appellant Bank cannot take advantage of its own wrong of wrongfully dismissing the respondent from service, 10 to deny him the benefit of seniority, promotion and other benefits to which he would have been entitled, if he had attended to his duties.” 12. Accordingly, looking to the facts and circumstances of the case and the principles of law laid down by the Hon’ble Apex Court in the subject matter, this petition is allowed. The orders dated 09.09.2013 and 16.09.2013 are hereby set aside. The petitioner is entitled to all consequential benefits in accordance with the law. Sd/- (Rajani Dubey) JUDGE H.L. Sahu "