Where Removal from Service has been Set Aside, Person is Required to be Treated as Having been Notionally in Service: High Court of Jammu and Kashmir and Ladakh at Jammu
The question as to whether upon setting aside of removal from service, a person is entitled to back wages by treating period of absence as a notional period of service, was considered by the HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU, before a bench consisting of Hon’ble Justice Sanjeev Kumar, in the matter of Zail Singh vs. Union of India & Ors. [SWP No.9900003/2015], on 28.01.22.
In this petition, the petitioner primarily sought a direction to the respondents to treat his period of absence from 01.08.1992 to 08.02.2009 as on duty in view of the judgment passed by the High Court of Punjab and Haryana in CWP No. 2488 of 1994 filed by the petitioner to challenge the imposition of penalty of removal from service. He also prays for a certiorari to quash the communication/signal which has emanated from the Police NES, HQR, whereby the claim of the petitioner for treating the intervening period as on duty has been rejected.
The facts of the present case are that vide order dated 28.07.1992 passed by Commandant, 10th Bn. CRPF, the petitioner was removed from service. The appeal preferred by the petitioner against his removal from service too was dismissed by the DIGP, Range, CRPF Durgapur (WB) vide its order dated 14.10.1993. Feeling aggrieved, the petitioner assailed the aforesaid orders in the High Court of Punjab and Haryana at Chandigarh in CWP No. 2488/1994. The writ petition was contested by the respondents, but the same was allowed by the High Court of Punjab and Haryana vide its judgment dated 31.01.2007. The impugned orders were quashed and a direction was issued to the respondents to take back the petitioner in service. The petitioner was, however, held entitled to 50% of the arrears of pay and allowances on the ground that he had not been in actual service of the respondents since the passing of the impugned order.
It was averred that the respondents have complied with the judgment, but have not given the benefit of continuity in service to the petitioner. The petitioner appears to have represented before the respondents for treating his intervening period as on duty and for release of consequential benefits. On the representation of the petitioner, the matter was considered by the Commandant, 10th Bn. CRPF, who vide his communication dated August, 2013 requested the Deputy Inspector General of Police, CRPF Range Gowhati (Assam) to examine the matter and confirm his view as to whether the period from 01.08.1992 to 08.02.2009 (intervening period) for which the petitioner stood paid 50% of the back wages should be treated as period spent on duty or otherwise, so that that various service matters such as accrual of Annual Increment, grant of MACP, qualifying service for calculation of pension etc., can be regularized. The DIG of Police CRPF Range Gowhati vide his impugned signal conveyed to the Commandant concerned that since the petitioner has only been held entitled to 50% of the back wages and has not performed any actual duty during the intervening period, as such, the period between 01.08.1992 to 08.02.2009 cannot be treated as on duty. He, however, opined that the intervening period of the petitioner may be regularized and a speaking reasoned order in this regard be passed. There is, however, no speaking order placed on record by the respondents. The petitioner was aggrieved of the aforesaid communication/signal of DIG Police CRPF Range, Gowhati and filed the instant petition seeking reliefs accordingly.
The High Court of Jammu and Kashmir at Jammu, after perusing the facts, documents, taking into account the arguments put forth, noted that the petitioner has succeeded before the High Court of Punjab and Haryana in CWP No. 2488/1994. The High Court of Punjab and Haryana has not only set aside/quashed the impugned orders but has also directed the respondents to take back the petitioner in service. It was observed that there is a categoric direction to the respondents to pay the petitioner 50% of the arrears of pay and allowances which clearly signifies that the High Court of Punjab and Haryana has held the petitioner entitled to notionally continuity in service and has, thus, instead of paying the full back wages, has allowed only to the extent of 50%. In this background, it was held that it cannot be contended by the respondents that the intervening period is only liable to be regularized for the purpose of paying the 50% of the salary and for no other purpose.
The Court agreed with the observations made by the Commandant 10th Bn. in its communication of 2013 addressed to DIG Police CRPF Range, Gowhati. It was held that once the removal from service of the petitioner has been set aside and he has been put back in service, as a necessary consequence, he shall be deemed to be in service during the intervening period. It was reasoned that this was so, because it is this period when he was prevented from performing the duties because of the impugned order of removal from service. It is not the case of any willful absence on the part of the petitioner for which he could be denied the wages and other service benefits. The Punjab and Haryana High Court has, in its discretion, restricted back wages only to the extent of 50%. The Court noted that respondents are, thus, required to treat the petitioner notionally in service and consider him for other consequential benefits whatever would accrue to him, of course, as per his eligibility and the other criteria laid down for conferring such benefits. This petition was accordingly, disposed of with the directions as aforesaid.
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Judgement reviewed by Bhargavi