Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
EXTRA-ORDINARY APPELLATE JURISDICTION
PETITION(S) FOR SPECIAL LEAVE TO APPEAL (C) NO. 5218/2022
Salim Ali Centre for Ornithology & Natural History,
Coimbatore & Another …Petitioners
Versus
Dr. Mathew K. Sebastian …Respondent
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 27.07.2021 passed by the High Court of Judicature at
Madras in Writ Appeal No. 35/2021, by which the Division Bench of the
High Court has dismissed the said appeal and has confirmed the
judgment and order dated 25.02.2020 passed by the learned Single
Judge of the High Court allowing writ petition No. 29201 of 2020
preferred by the respondent herein and has directed the petitioners –
management to pay back wages along with interest @ 9% per annum to
Signature Not Verified
the respondent herein – original writ petitioner for the period from
Digitally signed by
DEEPAK SINGH
Date: 2022.04.16
12:29:06 IST
Reason:
23.08.2002 to 30.04.2007, during which time he was out of employment,
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the management has preferred the present special leave petition under
Article 136 of the Constitution of India.
2. The facts leading to the present special leave petition in a nutshell
are as under:
That the respondent herein – original writ petitioner (hereinafter
referred to as the ‘writ petitioner’) was dismissed from service on
30.01.1996. The order of termination was challenged. The writ
petitioner succeeded before the learned Single Judge. By judgment and
order dated 23.08.2002, the learned Single Judge directed his
reinstatement with all consequential benefits, except back wages.
Against the judgment and order dated 23.08.2002 passed by the learned
Single Judge, the management preferred an appeal before the Division
Bench. There was a stay against reinstatement in the appeal at the
instance of the management. The appeal came to be dismissed,
consequent to which, the writ petitioner was reinstated in his original
post on 16.12.2010. Since, there was a stay in the appeal preferred by
the management, the writ petitioner could not join the services and he
remained out of employment from 23.08.2002 to 30.04.2007, and was in
some other employment from 01.05.2007 to 20.01.2011. He submitted
representations for the back wages for the period during which he
remained unemployed, i.e., from 23.08.2002 to 30.04.2007. Thereafter,
the writ petitioner preferred the writ petition before the High Court
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praying for tangible benefits including back wages from the date of order
of reinstatement passed by the learned Single Judge till the
reinstatement. However, he claimed back wages from 23.08.2002 to
30.04.2007 only, the period during which he remained out of
employment.
2.1 The learned Single Judge allowed the said writ petition and
directed the petitioners – management to pay to the writ petitioner back
wages along with interest @ 9% per annum for the period from
23.08.2002 to 30.04.2007, during which time he was out of employment.
2.2 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned Single Judge ordering back wages for the period
from 23.08.2002 to 30.04.2007, the management preferred an appeal
before the Division Bench. By the impugned judgment and order, the
Division Bench of the High Court has dismissed the said appeal and has
confirmed the judgment and order passed by the learned Single Judge
ordering back wages along with interest @ 9% per annum for the period
from 23.08.2002 to 30.04.2007.
2.3 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the Division Bench of the High Court along with
interest @ 9% per annum to the writ petitioner for the period from
23.08.2002 to 30.04.2007, the management has preferred the present
special leave petition.
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3. Ms. Madhvi Divan, learned Additional Solicitor General of India has
appeared for the petitioners.
3.1 Ms. Madhvi Divan, learned ASG has made the following
submissions, in support of her submission against awarding/granting
back wages to the writ petitioner for the period from 23.08.2002 to
30.04.2007:
i) that the writ petitioner has not established and proved and/or
produced any documentary evidence to prove that during the period
from 23.08.2002 to 30.04.2007, he was not gainfully employed;
ii) that as per the settled position of law, it is the employee who has to
prove by leading evidence that he was not gainfully employed during
the period he remained out of employment. Reliance is placed upon
the decisions of this Court in the cases of State of U.P. v. Atal Behari
Shastri, 1993 Supp (2) SCC 207; Kendriya Vidyalaya Sangathan v.
S.C. Sharma, (2005) 2 SCC 363; J.K. Synthetics Ltd. v. K.P. Agrawal,
(2007) 2 SCC 433; P. Karupaiah v. General Manager, Thruuvalluvar
Transport Corpn. Ltd., (2018) 12 SCC 663; and M.P.State Eelectricy
Board v. Jarina Bee, (2003) 6 SCC 141 ;
iii) that even on the principle of “no work no pay”, the writ petitioner
shall not be entitled to any back wages for the period from 23.08.2002
to 30.04.2007, during which time he never worked and he was out of
employment.
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4. Having heard Ms. Madhvi Divan, learned ASG and considering the
facts and circumstances narrated hereinabove, we are of the firm view
that the High Court has not committed any error in ordering back wages
along with interest @ 9% per annum to the writ petitioner for the period
from 23.08.2002 to 30.04.2007 during which time he was out of
employment.
4.1 It is required to be noted that this is a case where the writ
petitioner – respondent herein was claiming back wages on quashing
and setting aside the order of termination. This is case where he
remained out of employment, despite the order of reinstatement granted
by the learned Single Judge, in view of the stay in the appeal preferred
by the management – petitioners herein, which ultimately came to be
dismissed in the year 2010. The back wages which are awarded to the
writ petitioner are for the period the learned Single Judge in the earlier
round of litigation ordered reinstatement. If there would not have been
any stay order in the appeal preferred by the management, in that case,
the writ petitioner would have been reinstated in service in the year 2002
itself, pursuant to the judgment and order passed by the learned Single
Judge. What was denied by the learned Single Judge in the earlier
round of litigation was the back wages from the date of termination
(1996) till the order of reinstatement (2002). In the present case, the writ
petitioner is claiming the back wages for the period subsequent to the
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order of reinstatement passed by the learned Single Judge and the writ
petitioner remained out of employment even thereafter due to the order
of stay passed in the appeal preferred by the management. Therefore,
as such, on dismissal of the appeal of the management and the stay
being vacated, the judgment and order passed by the learned Single
Judge, setting aside the termination and ordering reinstatement came to
be confirmed, as a natural consequence, the writ petitioner – employee
shall be entitled to back wages during the period he remained
unemployed in view of the order of stay granted by the appellate court,
which was at the instance of the management, subject to the
management proving or producing any material on record that even
during the said period the employee was gainfully employed.
5. Now so far as the submission on behalf of the management that
the writ petitioner has not established and proved by leading cogent
evidence that he was not gainfully employed during the period he was
out of employment and therefore he shall not be entitled to the back
wages is concerned, at the outset, it is required to be noted that as such
the learned Single Judge in the earlier round of litigation ordered
reinstatement vide order dated 23.08.2002 and in fact the appeal came
to be dismissed and the writ petitioner was reinstated in service on
16.12.2010. Therefore, as such, he was entitled to back wages for the
period between 23.08.2002 to 16.12.2010, subject to proving that he
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was otherwise gainfully employed. However, the writ petitioner himself
came out with a case and claimed back wages only for the period from
23.08.2002 to 30.04.2007 by specifically averring and submitting that he
was in some other employment for the period from 01.05.2007 to
20.01.2011. By submitting so, it can be said that the writ petitioner has
discharged the initial burden. Thereafter, the onus shifted to the
employer to disprove and establish that the employee was gainfully
employed throughout the aforesaid period.
6. Now so far as the submission on behalf of the petitioners herein
that the writ petitioner had not established and proved by leading cogent
evidence that he was not gainfully employed is concerned, it is to be
noted that once the writ petitioner came out with a specific case that he
remained out of employment for the period from 23.08.2002 to
30.04.2007 and that he was gainfully employed during the period from
01.05.2007 to 20.01.2011, meaning thereby, that he was not gainfully
employed for the period between 23.08.2002 to 30.04.2007, thereafter,
he was not required to lead any further evidence to prove the negative.
Even in the case of J.K. Synthetics v. K.P. Agrawal (supra) , it is
specifically observed by this Court that an employee cannot be asked to
prove the negative. However, he has to at least assert on oath that he
was neither employed nor engaged in any gainful business or venture
and that he did not have any income. Thereafter the employee is not
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supposed to prove the negative that he was not gainfully employed.
There cannot be any evidence to prove the negative to the effect that he
is not gainfully employed. Once he asserts that he is not gainfully
employed, thereafter the onus will shift to the employer positively and it
would be for the employer to prove that the employee was gainfully
employed. Therefore, in the facts and circumstances of the case, none
of the decisions relied upon by the learned ASG, referred to
hereinabove, is of any assistance to the petitioners, considering the facts
and circumstances, narrated hereinabove.
7. As far as the submission on behalf of the petitioners that even on
the principle of “no work no pay”, the writ petitioner shall not be entitled
to back wages is concerned, the said principle shall not be applicable to
the facts of the case on hand, where the employee remained
unemployed due to the stay order granted by the appellate court. It was
the management who preferred the appeal and at the instance of the
management, there was an order of stay against reinstatement as
ordered by the learned Single Judge and the appeal came to be
dismissed and consequently the stay came to be vacated in the year
2010. Therefore, the employee/writ petitioner/respondent herein cannot
be denied the back wages for no fault of his. Therefore, the principle of
“no work no pay” shall not be applicable in such a situation.
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8. In view of the above discussion and for the reasons stated above,
we see no reason to interfere with the impugned judgment and order
passed by the Division Bench as well as the judgment and order passed
by the learned Single Judge ordering back wages for the period from
23.08.2002 to 30.04.2007 along with interest @ 9% per annum. The
special leave petition stands dismissed accordingly. Now the Petitioners
- management shall pay the amount due and payable to the Respondent
- Original Writ Petitioner within a period of eight (8) weeks from today.
……………………………………..J.
[M.R. SHAH]
NEW DELHI; ……………………………………..J.
APRIL 04, 2022. [B.V. NAGARATHNA]
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