MULIN SHARMA Vs. STATE OF ASSAM & ORS

Tags Service Law / Matter , Provident Funds

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 6119 of 2016, Judgment Date: Jul 12, 2016

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6119 OF 2016

(Arising out of Special Leave Petition (C) No. 34225 of 2013)

Mulin Sharma .... Appellant (s)

Versus

State of Assam and Others. .... Respondent(s)

J U D G M E N T

R.K. Agrawal, J.
1) Leave granted.
2) This appeal is directed against the final judgment and order dated
25.07.2012 passed by the Gauhati High Court at Gauhati in Writ Appeal Nos.
14 of 2010 and 226 of 2009 whereby the Division Bench of the High Court
partly allowed Writ Appeal No. 14 of 2010 filed by the appellant herein
against the judgment and order dated 19.01.2007 passed by the learned
single Judge of the High Court in Writ Petition No. 2357 of 2004 and
dismissed the Writ Appeal No. 226 of 2009 filed by the respondents herein.

3) Brief facts:
(a) Mulin Sharma-the appellant herein, an M.A. in Sanskrit, was employed
as an Assistant Teacher (Classical/Sanskrit) in the Rangsina High School,
Karbi, Anglong District, Assam in the year 1995. The school was
provincialized in the year 1996 as also the services of the appellant
herein against the allotted post of Assistant Teacher.
(b) Owing to certain differences with the Headmistress (Respondent No. 5
herein) of the School, who incidentally is the wife of Respondent No. 6
herein, who is also the Head Master of the M.E. Section of the said school,
the appellant herein was forced to sign the resignation letter under
compulsion, force and criminal intimidation by Respondent No. 6 and his men
on 22.05.1998 and he was not paid his salary from 23.05.1998.
(c) Making a grievance against such forcible obtaining of resignation
letter and signature therein, the appellant herein submitted a series of
representations to various authorities to take action in the matter. When
the appellant herein did not get any response in respect of his grievance
relating to forceful obtaining of letter of resignation, he filed a Writ
Petition being No. 4047 of 1999 before the High Court. Learned single
Judge of the High Court, by order dated 16.08.1999, directed as an interim
measure that if the appellant is working in the school in question as on
today, he shall be allowed to continue.
(d) The writ petition was disposed of by the High Court by order dated
14.07.2003 with a direction that the appellant herein and Respondent Nos. 4
and 5 herein shall appear before the learned Deputy Commissioner, Karbi
Anglong, Diphu. The Deputy Commissioner was further directed to determine
the facts and circumstances under which the resignation letter came to be
issued and signed by giving opportunity to both the sides.
(e) The Deputy Commissioner, Karbi Anglong, Diphu, after conducting an
enquiry and also after affording reasonable opportunity to both the sides,
by order dated 16.10.2003, held that the resignation tendered by the
appellant herein was voluntary and that in terms of the order dated
14.07.2003, the competent authority will have to accept the resignation of
the appellant herein afresh.
(f) After the Order so passed by the Deputy Commissioner, the Deputy
Secretary, Education Department (Higher), Karbi Anglong Autonomous Council
(KAAC) passed an order dated 12.01.2004 accepting the resignation of the
appellant herein with effect from 16.10.2003, i.e., the date of the order
passed by the Deputy Commissioner, with the stipulation that the appellant
herein would not be entitled to any financial benefits w.e.f. 22.05.1998
since according to the said authority, he did not attend his duties from
22.05.1998.
(g) Another consequential order dated 27.01.2004 was issued by the office
of the Inspector of Schools, Karbi Anglong District Circle, Diphu stating
that the resignation letter dated 22.05.1998 tendered by Shri Mulin Sharma,
Classical Teacher at Rangsina High School is hereby accepted without any
financial benefit with effect from 22.05.1998 since the incumbent concerned
did not attend his duties.

(h) Being aggrieved by the order dated 16.10.2003 passed by the Deputy
Commissioner, the appellant herein preferred a Writ Petition being No. 2357
of 2004 before the High Court. Learned single Judge of the High Court, by
order dated 19.01.2007, partly allowed the petition by holding that the
resignation was not voluntary without passing any direction on the back
wages.
(i) Being aggrieved by the order dated 19.01.2007 to the extent of back
wages for the period 23.05.1998 to 16.08.1999, the appellant herein
preferred Writ Appeal being No. 14 of 2010 before the High Court. The
respondents herein also preferred Writ Appeal No. 226 of 2009 before the
High Court against the aforesaid order.
(j) The Division Bench of the High Court, by common judgment and order
dated 25.07.2012 denied back wages to the appellant herein while granting a
sum of Rs. 25,000/- for wrongful denial of his employment during the
abovesaid period in question. Writ Appeal No. 226 of 2009 was, however,
dismissed by the Division Bench.
(k) Aggrieved by the order dated 25.07.2012, the appellant herein has
preferred this petition by way of special leave before this Court.
4) Heard learned counsel for the parties.
5) In the facts and circumstances of the present case, it is undisputed
that the resignation tendered by the appellant herein on 22.05.1998 was not
voluntary and the courts below have categorically held that the appellant
herein is not entitled to back wages in the absence of any material on
record to show that he remained unemployed during the said period. Now,
the question that arises for consideration is whether the courts below
erred in not granting back wages to the appellant herein or whether the
appellant has made out a case for grant of back wages for the period
23.05.1998 to 16.08.1999.

6) Learned single Judge of the High Court while holding that the
resignation was not voluntary, reinstated the appellant herein in service
but denied him back wages. Learned counsel for the appellant contended
before this Court that the respondents did not allow the appellant herein
to perform his duties in the school. In fact, the very same thing was
raised before the learned single Judge that the respondents did not allow
the entry of the appellant herein into the School. The appellant herein
signed the resignation letter under compulsion, criminal intimidation and
force applied by the respondents on to him at their residence and
forcefully they deprived him from entering into the school.

7) The fact remains that the appellant herein did not perform his duties
in the School at the behest of respondents. Similarly, the fact of he
being unemployed throughout the period was not proved; no material evidence
was placed on record for the same. In that case, learned single Judge of
the High Court was having only the remedy of reinstatement of the appellant
herein in the service and he ordered so after carefully examining that the
resignation was not voluntary.

8) The High Court, on the other hand, dealt with the question of back
wages left open by learned single Judge as well as the appeal filed by the
respondents herein. The High Court, on a correct appreciation of evidence
on record, dismissed the appeal filed by the respondents herein holding
that the resignation was not voluntary. Though the High Court did not
grant back wages to the appellant herein, a sum of Rs. 25,000/- was granted
for wrongful denial of his employment.

9) We are fully satisfied that in the facts and circumstances of the
case, back wages should not have been awarded to the appellant herein. In
several cases, this Court has held that payment of back wages is a
discretionary power which has to be exercised by a court keeping in view
the facts in their entirety and neither straitjacket formula can be evolved
nor a rule of universal application can be laid down in such cases. Thus,
reinstatement does not necessarily result in payment of back wages which
would be independent of reinstatement. While dealing with the prayer of
back wages, factual scenario and the principles of justice, equity and good
conscience have to be kept in view by an appropriate court.

10) In C.N. Malla vs. State of Jammu and Kashmir & Ors. (2009) 9 SCC 597,
this Court has held as under:-
“11. The legal position is fairly settled by a catena of decisions that
direction to pay back wages in its entirety is not automatic consequent
upon declaration of dismissal order bad in law. The concept of discretion
is inbuilt in such exercise. The court is required to exercise discretion
reasonably and judiciously keeping in view the facts and circumstances of
the case. Each case, of course, would depend on its own facts.”

11) In view of the foregoing discussion, we are of the considered opinion
that the concurrent finding of the courts below that the appellant herein
is not entitled to back wages in the absence of any material on record that
he remained unemployed during the entire period from 23.05.1998 to
16.08.1999 is correct. Even learned counsel for the appellant herein has
admitted before this Court that he was not allowed to perform his duties
after obtaining his signature on 22.05.1998.

12) In the present facts and circumstances of the case, the appellant has
not produced any material on record to prove that he being unemployed
during that period and has not made out a case for grant of back wages for
the aforesaid period. The appellant herein did not attend the school
during that period and back wages cannot be granted to him for that period.
He, however, should be reinstated in service and be given all other
consequential benefits. Though he is not entitled to back wages, he is
certainly entitled to an amount of Rs. 25,000/-, in addition to the amount
granted by the High Court, for wrongful denial of service.
13) In view of the above, the appeal is disposed of with the above terms.

...…………….…………………………J.
(J. CHELAMESWAR)

.….....…………………………………J.
(R.K. AGRAWAL)
NEW DELHI;
JULY 12, 2016.

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