Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELALTE JURISDICTION

CIVIL APPEAL NO. 5770  OF 2009 (Arising out of  SLP © No.24551/2008)

C.N. Malla          .. Appellant

Versus

State of Jammu and Kashmir & Ors.     ..Respondents

J U D G E M E N T

R.M. Lodha, J.

Leave granted.

2. In this appeal  by special leave, the only question that is  

required  to be considered   is  whether  the Division Bench of  the  

High Court was justified in setting aside the order of the  single Judge  

awarding  back wages to the appellant from  the date of filing  writ  

petition    upto  the date of superannuation.

3. Facts are these, very briefly put.  The appellant  joined  

the service of the State of Jammu  & Kashmir as Assistant Surgeon in  

1970.    He held various posts in the Directorate of  Health Services

and was promoted  first as Lecturer and then as Assistant Professor  

in 1981.   He was sent on deputation to Stanely Medical College,  

Madras for undergoing  specialized training in  Microvascular  and  

Hand   Surgery  from  January,  1986.   Thereafter,  the  appellant  

proceeded  on   30  days  leave   with  effect  from   March,  1986.  

According to  him, he had sent several applications  for extension of  

leave for undergoing  further training and seeking service in  foreign  

country but his representations were not responded to by the state  

government  and  his  services  were  illegally  terminated  without  

following   the  procedure  prescribed  in  Jammu  &  Kashmir  Civil  

Services (Classification, Control  and Appeal) Rules, 1956 (for short  

‘Rules 1956’) on September 18, 1987.  On the other hand,  the stand  

of  the respondents   is  that  after  the period of  sanctioned   leave  

expired, the appellant  did not  join duty despite letters and reminders  

and continued  to remain absent.  Finally, by a notice dated  July 16,  

1987,  the  appellant  was  asked  to  show  cause  why  his  services  

should not be terminated for having  remained absent  unauthorisedly  

and,  thereafter,  by  order  September  18,  1987,  his  services  were  

brought to  an end.

4. The appellant  challenged  the order   of  termination  by  

filing  writ petition on May 16, 1994 before Jammu & Kashmir High  

2

Court.  The writ petition was opposed  by the present respondents on  

diverse grounds.

5. The learned single Judge after hearing the parties held  

that the termination order was  violative  of the principles of natural  

justice and the prescribed procedure.  Vide order  dated December  

16, 1998, the learned single Judge set aside the order of termination  

dated September 18,  1987 and  awarded  full  back wages to the  

appellant from the date of filing  writ petition.  The operative order  

passed by the single Judge reads thus:

“As  a  result  of  aforesaid  discussion  this  writ  petition  be  allowed.   Government  Order  No.400-HME  of  1987  dated  18.9.1987 terminating the services of the petitioner is hereby  quashed to set aside and the petitioner shall be deemed to  have been in service from the date of his termination.  Now  arises the question of back wages.  Petitioner is a Doctor by  profession and in the background of this case it is ordered  that he would only be entitled to back wages from the date  he filed the writ petition i.e. 16.6.1994 (sic 16.5.1994) subject  of course, to his  fulfilling other condition as required under  law so as to claim such wages.  No costs.”       

6. The  State  of  Jammu  &  Kashmir  and  its  functionaries  

challenged the order of the single Judge in intra court appeal.  The  

Division Bench   concurred with the view of the single Judge that the  

procedure established  in Rules 1956 as well as provisions of section  

126  of  the  Constitution  of   the  State   were  not  followed  nor  any  

3

enquiry was  held before terminating the services of the appellant.  

This is what the Division Bench said:

  “We are of  the considered view that before termination of  services  of  a  Government  servant,  the  procedure  established under the Jammu  and Kashmir Civil  Services  (Classification, Control and Appeal) Rules, 1956 as well as  the provisions of Section 126 of the Constitution of the State  have  to  be  followed.   We also  concur   with  the  view  of  learned  Single  Judge  that  it  was  not  a  case  where  no  enquiry could have been conducted before terminating the  services of the petitioner.”  

7. However,  the Division Bench  set aside the order of the  

learned  single  Judge  directing    payment  of  back  wages  to  the  

appellant.

8. On May  12, 2009,  when the matter came up  before this  

Court, learned counsel  appearing on behalf of  the  respondents was  

requested to take  instructions whether back wages could be agreed  

to be paid to the appellant and the matter was adjourned to the month  

of  August,  2009.   Mr.  Anis  Suhrawardy,  learned  counsel  for  the  

respondents today  appeared before us and submitted that he  took  

up the matter with the state functionaries but has not been able to get  

any positive response from the state government.

9. In PGI  of Medical Education and Research, Chandigarh  

vs. Raj Kumar,1  this Court stated: 1 (2001) 2 SCC 54

4

“12. Payment of back wages having a discretionary element  involved  in  it  has  to  be  dealt  with,  in  the  facts  and  circumstances of each case and no strait-jacket formula can  be evolved, though, however, there is statutory sanction to  direct payment of back wages in its entirety.”  

10. In  U.P.State  Brassware  Corporation vs.  Uday  Narain  

Pandey,2 , this Court  while  dealing  with aspect of payment of back  

wages to a workman by an Industrial Court whose retrenchment was  

held  illegal, held:

“42. A person is not entitled to get something only because it  would  be  lawful  to  do  so.  If  that  principle  is  applied,  the  functions  of  an  Industrial  Court  shall  lose  much  of  their  significance.”

11. Recently,  in  the  case  of  Metropolitan  Transport   

Corporation vs.  V. Venkatesan, (Civil Appeal No.5167/2009 decided  

on August 7, 2009), we took  note  of  recent approach  of the courts  

in  the  matter  of   direction  for  payment  of  back  wages   where  

dismissal order is found  illegal and invalid.  We  said:

“11. Firstly, it may be noticed that in seventees and  eighties, direction for reinstatement and payment of  full  back  wages  on  dismissal  order  having  been  found  invalid would ordinarily  follow as a matter of  course.  But there is change in legal approach now.  We recently observed  in  Jagbir Singh vs. Haryana  State Agriculture Marketing Board & Anr.{JT 2009  

2 (2006) 1 SCC 479

5

(9) SC 396} that  in recent past there has been  a  shift in the legal position and in a long line of cases,  this Court has consistently taken the view that the  relief  of  reinstatement  with  back-wages  is  not  automatic  and  may  be  wholly  inappropriate  in  a  given fact situation even though the termination of  an employee is held to be  in contravention  to the  prescribed procedure.”

12. The legal position is  fairly settled by  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.   Insofar  as   the  present  case  is  

concerned,  the  Division  Bench  was  mainly   influenced   by  two  

reasons   in   denying  the  appellant   back  wages  viz.,  (one)  

unauthorised leave   and (two) delay in approaching  the court.  The  

two reasons  noticed by the  Division  Bench   neither collectively nor  

individually   justify  denial   of  back wages to the appellant   in its  

entirety.    The allegation of unauthorized absence  has not  been  

established as no enquiry was held; the case of the appellant was  

that  he  had  sent  several  applications  for  extension  of  leave  for  

undergoing further training.     As regards the  second reason viz.,  

6

delay,  suffice it to say  that this aspect was clearly taken note of by  

the single Judge and it was for this reason that   back wages    were  

not awarded to him for the period from  date of termination  until  date  

of filing writ petition.  The observation of the Division Bench  that  if  

the court orders payment of back wages to the petitioner (appellant  

herein), it  will  be against the public interest and also will  drain the  

public exchequer  is founded on no legal premise.  

13. Regard  being  had  to  all  relevant   facts   and  

circumstances,  particularly the fact  that the appellant  is a doctor by  

profession  and must not have remained  idle  even after filing writ  

petition, full back wages  from the date of filing   writ petition until  

date of superannuation may not be justified.  In our considered view,  

the demand of justice would be met if the appellant is awarded 50%  

back wages from the date of filing writ petition until he attained  the  

age of superannuation.

14. Consequently, appeal is allowed to the aforesaid extent.  

The payment of due amount  shall be made by the respondents to the  

appellant within one month from today failing which it will carry simple  

interest at the rate of 9% per  annum from May 16, 1994 till the date  

of actual payment.   Parties will bear their own costs.

7

……………………………J (Tarun Chatterjee)

……………………………J (R.M. Lodha)

New Delhi, August 24, 2009     

8