NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO……………../2008 (arising out of S.L.P.(Civil) No.10452/2007)

Airport Authority of India & Ors. …Appellants

Vs.

Shambhu Nath Das @ S.N.Das                 … Respondent

J U D G M E N T

HARJIT SINGH BEDI,J.

1. Leave granted.

2. This appeal arises out of the following facts:

3. The  respondent,  Shambhu  Nath  Das,  a  resident  of

Kolkata, who was posted as an Assistant Engineer with

the  appellant  authority  at  Kolkata  was  transferred  to

Delhi.   He reported for duty at Delhi  and served for 7

days  and  thereafter  took  leave  for  18  days  from  26th

March  1985  to  12th April  1985  on  account  of  his

grandmother’s illness.  He did not rejoin duty thereafter

but made several applications for extension of leave on

medical grounds. The appellant accordingly directed him,

vide  order  dated  12th August  1985,  to  appear  before  a

Medical Board at Kolkata at 11 a.m. on that day.  The

Medical  Board in its report  opined that the respondent

was  physically  fit  and,  therefore,  capable  of  resuming

duty.   This  information  was  also  conveyed  to  the

respondent vide letter dated 9th September 1985 and he

was advised to report for duty immediately failing which

action  would  be  taken  against  him  as  per  the  rules.

Despite  this  warning,  however,  the  respondent  did  not

report for duty.  A Memorandum dated 17th October 1985

was also addressed to the respondent calling upon him

yet again to resume duty on or before 30th October 1985

failing  which  it  would  be  presumed  that  he  had

voluntarily abandoned his service with the consequence

that his name would be struck off the rolls with effect

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from 1st November 1985.  The respondent, however, still

did not report for duty but challenged the memorandum

dated 17th October 1985 by filing Writ Petition No. 5715

(W) of 1986 which was ultimately disposed of by a Single

Judge of the  Calcutta High Court vide order dated  10th

November 1995 with  a direction to the appellant to allow

the  respondent  to  resume  duty  but  with  a  further

direction that he would not be entitled to any arrears of

pay and allowances or any other service benefit for the

period of his absence. The respondent, however, still did

not join duty in terms of the order dated 10th November

1995  but  challenged  the  same  by  filing  Writ  Appeal

No.3687/1995 before the Division Bench.  The Division

Bench in  its order dated 9th August 1996 set aside the

order dated                  10th November  1995 and

remanded the Writ Petition to the learned Single Judge

with a direction that a reasoned  order  be  passed after

hearing  the  contesting  parties.   The  matter  was,

accordingly, re-heard by the learned Single Judge and it

was observed that as the writ petitioner (now respondent)

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had overstayed his leave, the appellant authority would

have been justified in dismissing him from service  but

after  having  observed  as  such,  gave  the  following

directions on                13th August 1999:

“The  respondent  Airports  Authority  of India  is  directed  to  reinstate  the  writ petitioner in service at Delhi or any other Airport  where  a  suitable  post  is  lying vacant within six weeks from the date of communication of this order. In so far as the  salary  of  the  writ  petitioner  is concerned  during  the  period  he  stayed away  from  the  work,  the  respondent, Airports Authority of India, is directed to consider the matter sympathetically and, if it is permissible under its rules, allow to  him  half  of  the  salary  and  other benefits  during  the  period  from  17th October 1985 till 10th November 1985.”

4.  A  subsequent  order  of  the  learned  Single  Judge  vide

order dated 31st August 1999 modified the order of 13th

August  1999,  to  the  extent  that  the  period  of

consideration  of  salary  etc.  was  to  be  limited  to  “the

period from                   17th October 1985 till 10th

November 1995”.  The appellant accepted the judgment

of the learned Single Judge and allowed the respondent

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to join duty with effect from              1st November 1999

leaving the issue of payment of back wages to be decided

subsequently.  The appellant thereafter gave a personal

hearing  to  the  respondent  on  31st January  2002  and

passed an order dated 14th May 2002 holding that the

period  of  unauthorized  absence  was  to  be  treated  as

dies-non and the claim for back wages was accordingly

disallowed  on the  principle  of  “no  work no pay”.   The

order dated 14th May 2002 was once again challenged by

the respondent by filing Writ Petition No. 12321-W/2002

before the Calcutta High Court claiming, inter-alia, back

wages for the entire period of his unauthorized absence.

This Writ Petition was also allowed by the learned Single

Judge in his order dated 7th August 2003 and a direction

was issued that the question of payment of back wages

be decided afresh by the appellant.  The matter was once

again taken up by the appellant and the plea for back

wages  was  yet  again  denied  by  order  dated  2nd/5th

January  2004.   This  order  was  challenged  by  the

respondent by way of Writ Petition No.4283 (W) of 2004

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which  was,  however,  dismissed  by  a  learned  Single

Judge of the High Court on 15th April 2004 observing as

under:

“After  hearing  the  learned  counsel, appearing for the parties, this court is of the  view  that  the  petition  needs  to  be thrown in limine for the following reasons:

(a)   By the order dated 13th August 1999, this court directed that “in so far as the salary of the writ petitioner  is  concerned  during  the  period  he stayed  away  from  the  work,  the  respondent, Airports  Authority  of  India,  is  directed  to consider the matter sympathetically and, if it is permissible under its Rules, allow to him half of the salary and other benefits”.

(b) The right of the petitioner, if any, has crystallized in the order dated 13th August 1999.  He cannot be  allowed  to  reopen  the  matter  nor  is  he  at liberty to advance new grounds of his entitlement. At the highest he is entitled to execute the order dated 13th August 1999 as corrected by the order dated 31st August 1999.

(c) In  the  order  under  challenge  dated  2nd/5th January,  2004,  the  authorities   have  recorded that  the  petitioner  could  not  give  nay justification  in  order  to  support  his  clam  for back  wages.  The  authority  concerned  has recorded in his order that there is no such rule which permits  such payment.  The  order  dated 13th August  1999  directed  the  authority concerned  to  sympathetically  consider  the question  of  payment  of  back  wages  if  it  was

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permissible under the Rule. When factually there is no dispute between the parties that the rules do  not  permit  the  payment  of  any  such  back wages,  the question  came to  an end then and there.  

(d) The  submission  advanced  by  Mr.  Basu,  the learned Senior Advocate, for the petitioner, that if the rules are not there then the absence of Rule  cannot  militate  against  the  claim of  the petitioner,  in any view, cannot be entertained because that would amount to sitting in appeal over the order dated 13th August, 1999 which I am unable to do.

(e) The submission that the Rule 31, and theory of ‘dies-non’ has no application to the facts of this case and, in my view, self-annihilating because if this submissions were given effect to then all the benefits given to the petitioner under the order dated  14th May  2002  have  to  be  recalled.  He cannot blow hot and cold.  

(f) It  is  submitted  that  the  petitioner  is  not aggrieved by the rest of the order dated 14th May 2002 and the challenge is restricted to sub-para (i). Sub-Para (i) is based on he same principle on which the  sub-paras  (ii)  to  (vi)  are  based.  The petitioner is happy with the directions contained in sub-para (i) Where on (vi) of the order dated 14th May 2002 is the same.

In  that  view  of  the  matter,  the approach of the petitioner, accordingly to this court, is anything but bonafide. Accordingly, this petition is dismissed with costs assessed at 200 G.Ms.”

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5. This order of the learned Single Judge has been set aside

by  the  Division  Bench  vide  the  impugned  order  dated

21st March 2007 with the observations that the order of

the  High  Court  in  C.R.(W)No.  5715/1986  which  had

directed that the respondent  be  paid  50% of  the  back

wages  for  the  period  from  17th October,  1985  to  10th

November, 1995 should be complied with.  

6. The  learned  counsel  for  the  appellant  has  pointed  out

that as the respondent had not attended to his duties for

almost 15 years despite having been called upon to do so

repeatedly,  the direction of the Division Bench to grant

him back wages from 17th October 1985 to 10th November

1995 was clearly not justified on the principle of “no work

no pay”. She has pointed out that the appellant authority

would have been fully justified even if it had dismissed

the respondent from service, but on the contrary, a huge

benefit  had already been given to him as he had been

taken back in service despite having remained absent for

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almost  fifteen  years.  The  learned  counsel  for  the

respondent has, however, supported the judgment of the

Division Bench. We are of the opinion that in the light of

the fact that the respondent did not report for duty for 15

years, there was no justification whatsoever to grant him

any  back  wages  on  the  general  principle  that  nobody

could be directed to claim wages for the period that he

remained  absent  without  leave  or  without  justification.

We also find that the judgment  dated 13th August, 1999

which had attained finality had directed as under:

(a) “in so far as the salary of the writ petitioner is concerned  during  the  period  he  stayed  away from  the  work,  the  respondent,  Airports Authority  of  India,  is  directed  to  consider  the matter  sympathetically  and, if  it  is  permissible under its Rules, allow to him half of the salary and other benefits”.

7. This  claim was considered  by the  competent  authority

and rejected for valid reasons.  We are, thus, unable to

endorse the High Court’s order for payment of 50% back

wages  for  the  period  from  17th October,  1985  to

10th November,  1995  which  are  far  in  excess  of  the

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directions  in  the  order  dated  13th August  1999.   We

accordingly allow this appeal set aside the order of the

division bench and restore the order of the learned Single

Judge dated                15 April 2004.  

8. The appeal is allowed in the above terms. No order as to

costs.                                                      

        ……………………………J. (TARUN CHATTERJEE )

  ……………………………J.

      (  HARJIT  SINGH BEDI)

New Delhi, Dated:   May 16,  2008

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