GOWRAMMA C (DEAD) BY LRSversusMANAGER (PERSONNEL) HINDUSTAN AERONAUTICAL LTD. & ANR.

734                      [2022]REPORTS
               SUPREME COURT    1 S.C.R. 734               [2022] 1 S.C.R.


A                     GOWRAMMA C (DEAD) BY LRS
                                        v.
        MANAGER (PERSONNEL) HINDUSTAN AERONAUTICAL
                                 LTD. & ANR.
B                    (Civil Appeal Nos. 1575-1576 of 2022)
                             FEBRUARY 23, 2022
              [K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
             Service law: Back wages – Appellant was appointed as Staff
C     Nurse with the respondent – Enquiry was held against her that she
      professed to belong to Scheduled Caste (SC) category but she did
      not belong to SC category – Tahasildar found that she did not belong
      the SC community – Single judge of High Court upheld the decision
      of Tahasildar – Disciplinary Authority dismissed her service on the
      basis of decision of Tahasildar – Appellant appealed against the
D
      decision of Single Judge – Division bench allowed the appeal and
      found that actually the power to rule on the caste status did not lie
      with the Tahasildar and directed Competent Authority to verify status
      – Competent Authority accepted the claim of appellant and she was
      reinstated without any consequential benefits – On writ petition,
E     High Court directed inter alia 50% of back wages – In the instant
      appeal, appellant contended that denial of full back wages was not
      sustainable as she was not at fault – Held: Appellant was dismissed
      from service only on the report given by the Tahasildar – There was
      no other charge against her regarding any kind of misconduct or
      misrepresentation – Competent authority had cleared the appellant
F
      and she stood vindicated by the view expressed by the authority,
      which, in law, could possibly have found as to which caste she
      belonged to – It was a case, therefore, where the appellant was
      completely blameless in the matter – If the employee is not at all at
      fault and she was kept out of work by reasons of the decision taken
G     by the employer, then to deny the fruits of her being vindicated at
      the end of the day would be unfair to the employee – Therefore,
      interests of justice, in the facts of this, would be subserved, if the
      back wages is enhanced from 50% to 75% of the full back wages,
      which she was otherwise entitled.
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                                       734
   GOWRAMMA C (DEAD) BY LRS v. MANAGER (PERSONNEL)                      735
        HINDUSTAN AERONAUTICAL LTD. & ANR.

      Partly allowing the appeal, the Court                             A
      HELD: 1. The appellant was employed by the respondent
which is State under Article 12 of the Constitution of India. The
appellant was dismissed from service only on the report given by
the Tahasildar. There is no other charge against the appellant
regarding any kind of misconduct or misrepresentation. The              B
appellant relying on a caste certificate entitling her to be treated
as member of the Scheduled Caste secured employment. This
was put under a cloud. The doubt regarding her caste certificate
was fortified in favour of the respondent by the report of the
Tahasildar. It was, however, found that the Tahasildar was
                                                                        C
incompetent to give such an opinion. The competent authority
has cleared the appellant and she stood vindicated by the view
expressed by the authority, which, in law, could possibly have
found as to which caste she belonged to. It is a case, therefore,
where the appellant was completely blameless in the matter. She
had to go through a long series of sittings even according to the       D
respondent which was held by way of enquiry and at the end of
the day though on the basis of decision of the Division Bench
which again she was constrained to appeal to, matter reached the
hands of the competent authority which conclusively and finally
found that she belonged to the Scheduled Caste which she always
                                                                        E
professed she was a member of. At the same time, the respondent
has a case that the appellant did not specifically plead about her
being unemployed during the relevant period. It is also pointed
out that an attempt was made in the review which proved futile.
[Paras 7, 8][738-G-H; 739-D-E]
                                                                        F
       2. It is true that no work no pay is a principle which is
apposite in circumstances where the employee does not work
but it is not an absolute principle, which does not admit of
exceptions. The most important question is whether the employee
is at fault in any manner. If the employee is not at all at fault and
she was kept out of work by reasons of the decision taken by the        G
employer, then to deny the fruits of her being vindicated at the
end of the day would be unfair to the employee. In such
circumstances, no doubt, the question relating to alternative


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736            SUPREME COURT REPORTS                      [2022] 1 S.C.R.


A     employment that the employee may have resorted to, becomes
      relevant. There is also the aspect of discretion which is exercised
      by the Court keeping in view the facts of each case. This is a
      case where apart from the charge of the employee having
      produced false caste certificate, there is no other charge.
      Therefore, interests of justice, in the facts of this, would be
B
      subserved, if the back wages is enhanced from 50% to 75% of
      the full back wages, which she was otherwise entitled. [Paras 9,
      12][739-E; 741-F-H]
            State of Kerala v. E.K. Bhaskaran Pillai 2007 (6) SCC
            524 : [2007] 5 SCR 251; P.V.K. Distillery Ltd. v.
C
            Mahendra Ram 2009 (5) SC 705; Canara Bank v.
            Damodar Govind Idoorkar 2009 (4) SCC 323 : [2009]
            4 SCR 586; Deepali Gundu Surwase v. Kranti Junior
            Adhyapak Mahavidyalaya (D.Ed.) and Others 2013
            (10) SCC 324 : [2013] 9 SCR 1 – referred to.
D
                            Case Law Reference
      [2007] 5 SCR 251               referred to            Para 9
      2009 (5) SC 705                referred to            Para 10

E     [2009] 4 SCR 586               referred to            Para 11
      [2013] 9 SCR 1                 referred to            Para 11
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1575-
      1576 of 2022.

F           From the Judgment and Order dated 27.06.2018 of the High Court
      of Karnataka at Bengaluru in Writ Appeal Nos.24 of 2018(S-RES) and
      1508 of 2018(S-RES).
            H. Chandra Sekhar, Ms. Rekha Chandrasekhar, Advs. for the
      Appellants.
G          Aseem Chaturvedi, Ms. Vanita Bhargava, Ms. Trishla Trivedi for
      M/s Khaitan & Co., Advs. for the Respondents.




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   GOWRAMMA C (DEAD) BY LRS v. MANAGER (PERSONNEL)                             737
        HINDUSTAN AERONAUTICAL LTD. & ANR.

      The following Judgment of the Court was delivered :                      A
                              JUDGMENT
      Leave granted.
      1. The appellant impugns the judgment of the Division Bench by
which the High Court confirmed the view taken by the learned single            B
Judge. The original appellant passed away and the legal representatives
pursue the appeal as additional appellants.
        2. The appellant was appointed as Staff Nurse (Group-C) with
the respondent.There was an inquiry against her by the respondent on
the charge that the appellant had professed to belong to theScheduled          C
Caste category and secured employment, whereas, she did not belong
to the Scheduled Caste community. The Tahasildar verified the caste
certificate and vide order dated 10.07.2009, it was found that the appellant
did not belong to the community ‘Adi Karnataka’ which is a Scheduled
Caste. The appellant challenged the order of the Tahasildar before the
High Court and the learned single Judge repelled the challenge to the          D
order by its judgment dated 29.12.2009. Following the said judgment, it
is that the Disciplinary Authority, by order dated 08.10.2010, dismissed
the appellant from service relying upon the order of the Tahasildar. The
appellant challenged the judgment of the learned single Judge before the
Division Bench and the Division Bench by judgment dated 28.06.2011             E
allowed the appeal filed by the appellant and found that actually the
power to rule on the Caste status did not lie with the Tahasildar but with
another authority and verification of the caste certificate was directed
to be made over to the Bangalore District Caste Verification Committee,
which was the Competent Authority. The said authority verified the caste
status of the appellant and found that the appellant, in fact, belonged to     F
the Scheduled Caste in question. There upon the appellant gave a
representation and on 12.04.2014, the appellant was reinstated without
any consequential benefits. A representation dated 28.04.2014, did not
yield results. This occasioned the filing of the writ petitions, which has
finally generated the appeals before us.                                       G
       3. The learned Single Judge partly allowed the Writ Petitions filed
and directed the first respondent to give promotion, if any, notionally and
50 per cent of the back wages and the retirement benefits on the basis
of the last pay cheque that she would be entitled to, in case, she were
granted any notional promotion.The appellant filed a review petition which
                                                                               H
738             SUPREME COURT REPORTS                             [2022] 1 S.C.R.


A     was dismissed. Thereafter, the writ appeals were filed, which culminated
      in the impugned order being passed, affirming the judgment of the learned
      Single Judge.
             4. Heard the learned counsel for the appellants and learned counsel
      for the respondents.
B            5. Learned counsel for the appellants would contend that denial
      of the full back wages is unsustainable as it is a case where the appellant
      was not at fault.She was kept out of the employment without any
      misconduct on her part. She always belonged to the caste in question
      and denial of the full back wages is not justified.
C            6. Per-contra, learned counsel for the respondents would point
      out that impugned orders would reflect that the Court had reconciled the
      relevant aspects that both the appellant and the respondents were not at
      fault. He would further project the dimension that it is a case where in
      the writ petition the appellant had not specifically pleaded that she was
D     not gainfully employed during the period in question. It was only in the
      review petition that the case was set up which was rightly rejected. He
      also sought to draw support from a line of judgments for the contention
      that Courts have recognised that merely upon an employee being
      reinstated it does not ipso facto follow that he becomes entitled for full
      back wages. In such circumstances, those decisions will decide the
E     destiny of such a claim. In the facts of this case, having regard to the
      fact that two Courts have concurrently found that the respondents were
      acting on the basis of the report of Tahasildar who had opined that the
      appellant was not a member of the Scheduled Caste,the respondents
      were entitled to take shelter under the principle that whenthe employer
F     was not at fault,the employee cannot have the absolute right to claim full
      back wages.
            7. Having heard the learned counsel for the parties, we are of the
      view that the appellant is entitled to partial relief.This is for the following
      reasons:-
G            The appellant was employed by the respondent which is State
             under Article 12 of the Constitution of India. The appellant was
             dismissed from service only on the report given by the Tahasildar.
             There is no other charge against the appellant regarding any kind
             of misconduct or misrepresentation. The appellant relying on a
             caste certificate entitling her to be treated as member of the
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   GOWRAMMA C (DEAD) BY LRS v. MANAGER (PERSONNEL)                             739
        HINDUSTAN AERONAUTICAL LTD. & ANR.

      Scheduled Caste secured employment.This was put under a cloud.           A
      The doubt regarding her caste certificate was fortified in favour
      of the respondent by the report of the Tahasildar. It was, however,
      found that the Tahasildar was incompetent to give such an opinion.
      The competent authority has cleared the appellant and she stood
      vindicated by the view expressed by the authority, which, in law,
                                                                               B
      could possibly have found as to which caste she belonged to. It is
      a case, therefore, where the appellant was completely blameless
      in the matter. She had to go through a long series of sittings even
      according to the respondent which was held by way of enquiry
      and at the end of the day though on the basis of decision of the
      Division Bench which again she was constrained to appeal to,             C
      matter reached the hands of the competent authority which
      conclusively and finally found that she belonged to the Scheduled
      Caste which she always professed she was a member of.
       8. At the same time, the respondent has a case that the appellant
did not specifically plead about her being unemployed during the relevant      D
period. It is also pointed out that an attempt was made in the review
which proved futile. In this regard support is sought from the decision in
2018 (18) SCC 299 by the respondent.
       9. It is true that no work no pay is a principle which is apposite in
circumstances where the employee does not work but it is not an absolute       E
principle, which does not admit of exceptions. In this regard we may
notice that in one of the judgments relied upon by the respondents,
namely,State of Kerala v. E.K. Bhaskaran Pillai 2007(6)SCC 524 which,
in fact, dealt with issue as to monetary benefits when retrospective
promotion is given, this Court held:
                                                                               F
      “… So far as the situation with regard to monetary benefits with
      retrospective promotion is concerned, that depends upon case to
      case. There are various facets which have to be considered.
      Sometimes in a case of departmental enquiry or in criminal case it
      depends on the authorities to grant full back wages or 50 per cent
      of back wages looking to the nature of delinquency involved in           G
      the matter or in criminal cases where the incumbent has been
      acquitted by giving benefit of doubt or full acquittal. Sometimes in
      the matter when the person is superseded and he has challenged
      the same before court or tribunal and he succeeds in that and
      direction is given for reconsideration of his case from the date         H
740             SUPREME COURT REPORTS                            [2022] 1 S.C.R.


A           persons junior to him were appointed, in that case the court may
            grant sometimes full benefits with retrospective effect and
            sometimes it may not. Particularly when the administration has
            wrongly denied his due then in that case he should be given full
            benefits including monetary benefit subject to there being any
            change in law or some other supervening factors. However, it is
B
            very difficult to set down any hard-and-fast rule. The principle
            “no work no pay” cannot be accepted as a rule of thumb. There
            are exceptions where courts have granted monetary benefits also.”
            (Emphasis supplied)
C            10. In the decision in P.V.K. Distillery Ltd. v. Mahendra Ram
      2009 (5) SC 705 again relied upon by respondent, the matter arose out
      of an award by the Labour Court where exercise of power under Section
      11 A of the Industrial Disputes Act was made. This is also a case where
      incidentally the court noted that the appellant-employer remained closed
      for years together and it was declared as asick unit. In this regard, a fact
D     which weighed with the court is found reflected in following statement :
            “18. Although direction to pay full back wages on a declaration
            that the order of termination was invalid used to be the usual
            result but now, with the passage of time, a pragmatic view of the
            matter is being taken by the Court realising that an industry may
E           not be compelled to pay to the workman for the period during
            which he apparently contributed little or nothing at all to it and/or
            for a period that was spent unproductively as a result whereof the
            employer would be compelled to go back to a situation which
            prevailed many years ago, namely, when the workman was
F           retrenched.”
                                                             (Emphasis supplied)
             11. In regard to interference in such matters, i.e., cases relating to
      back wages, we find similar approach adopted in other decisions which
      no doubt the respondent lays store by [see in this regard 2007 (5) SCC
G     742]. Though the decision reported in Canara Bank v. Damodar
      Govind Idoorkar 2009(4) SCC 323 again relied upon by the respondent
      did involve the service of the employee being terminated as he had secured
      employment in the reserved category using a false caste certificate and
      the court modified direction of the High Court whichordered full back
      wages by substituting the order by reducing it to 50%,we do not find that
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   GOWRAMMA C (DEAD) BY LRS v. MANAGER (PERSONNEL)                           741
        HINDUSTAN AERONAUTICAL LTD. & ANR.

any principle has been laid down which could be treated as constituting      A
it as a precedent. The decision in Deepali Gundu Surwase v. Kranti
Junior Adhyapak Mahavidyalaya (D.Ed.) and Others 2013 (10) SCC
324 involved the High Court setting aside the award of back wages on
the ground that the appellant had not proved the factum of non-
employment. The court inter alia laid down as follows:
                                                                             B
      “(vi) In a number of cases, the superior courts have interfered
      with the award of the primary adjudicatory authority on the premise
      that finalization of litigation has taken long time ignoring that in
      majority of cases the parties re not responsible for such delays.
      Lack of infrastructure and manpower is the principal cause for
      delay in the disposal of cases. For this the litigants cannot be       C
      blamed or penalized. It would amount to grave injustice to an
      employee or workman if he is denied back wagessimply because
      there is long lapse of time between the termination of his service
      and finality given to the order of reinstatement. The courts should
      bear in mind that in most of these cases, the employer is in an        D
      advantageous position vis-à-vis the employee or workman. He
      can avail the services of best legal brain for prolonging the agony
      of the sufferer i.e. the employee or workman, who can ill-afford
      the luxury of spending money on a lawyer with certain amount of
      fame. Therefore, in such cases it would be prudent to adopt the
      course suggested in Hindustan Tin Works (P)Ltd., (1979) 2              E
      SCC 80
       12. The most important question is whether the employee is at
fault in any manner. If the employee is not at all at fault and she was
kept out of work by reasons of the decision taken by the employer, then
to deny the fruits of her being vindicated at the end of the day would be    F
unfair to the employee. In such circumstances, no doubt, the question
relating to alternative employment that the employee may have resorted
to, becomes relevant. There is also the aspect of discretion which is
exercised by the Court keeping in view the facts of each case. As we
have already noticed, this is a case where apart from the charge of the      G
employee having produced false caste certificate, there is no othercharge.
Therefore, we would think that interests of justice, in the facts of this,
would be subserved, if we enhance the back wages from 50% to 75%
of the full back wages, which she was otherwise entitled. The appeals
are partly allowed.The impugned judgments will stand modified and the
                                                                             H
742              SUPREME COURT REPORTS                        [2022] 1 S.C.R.


A     respondents shall calculate the amount which would be equivalent to
      75% of the back wages and disburse the amount remaining to be paid
      under this judgment within a period of six weeks from today to the
      additional appellants.
             Pending application(s), if any, stands disposed of.
B
      Devika Gujral                                         Appeals partly allowed.




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