Holding

Direction to award back wages is discretionary; full back wages are not automatic, and the appellant is entitled to 50% back wages from the writ filing date to superannuation.

Summary

The appellant, a doctor employed as Assistant Surgeon, was terminated in 1987 after allegedly remaining absent beyond sanctioned leave, despite his claims of pending leave extensions for further training. He challenged the termination in a writ petition, and the Single Judge of the High Court set aside the termination as violative of natural justice and awarded full back wages from the date of filing the petition. The Division Bench of the High Court later set aside the back‑wage award, citing unauthorised leave, delay in approaching the court, and public‑interest concerns. On appeal, the Supreme Court held that payment of back wages is a discretionary remedy and not automatic upon finding a dismissal illegal; the Division Bench had not justified denying the award in entirety. Considering the appellant’s profession and the facts, the Court modified the award to 50% of back wages from the filing date until his superannuation, and ordered payment with interest.

Issues considered

Whether the Division Bench was justified in setting aside the Single Judge's order awarding full back wages.
Whether direction to pay back wages in entirety is automatic upon declaration of dismissal as bad in law.
Whether unauthorised leave and delay in filing the petition justify denial of back wages.
Whether public‑interest and fiscal considerations can bar the award of back wages.

Legislation cited

Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956

Subjects

service lawback wagesillegal dismissaldiscretionary reliefunauthorised leavedelay in filingpublic interestcivil service rulesconstitutional provisionpartial award

Judgment

[2009J 13 (ADDL.) S.C.R. 479

C.N. MALLA A
v.
STATE OF JAMMU AND KASHMIR & ORS.
(Civil Appeal No. 5770 of 2009)
AUGUST 24, 2009
8
[TARUN CHATTERJEE AND R.M. LODHA, JJ.]

~
).-- Service Law - Back wages - Award of - Employee
absent unauthorisedly - Dismissal from service - Set aside
by Single Judge of High Court and award of full back wages c
from date of filing writ petition upto date of superannuation -
Set aside by Division Bench - On appeal, held: Direction to
pay back wages in its entirety is not automatic consequent
; upon declaration of dismissal order bad in law - Court is
required to exe;cise discretion reasonably and judiciously - D
.J. Division Bench refused back wages on the ground of
unauthorised leave which was not established - Division
Bench also held that payment of back wages would be against
public interest and would drain public exchequer - Not
founded on legal premise - In the interest of justice, E
employee awarded 50% back wages from the date of filing writ
petition until he attained the age of superannuation - Jammu
~
& Kashmir Civil Services (Classification, Control and Appeal)
~ Rules, 1956.

The question which arose for consideration in this F
appeal is whether the Division Bench of the High Court
was justified in setting aside the order of the Single Judge
of High Court awarding back wages to the appellant from
the date of filing writ petition upto the date of
superannuation. G

' -1 .
Partly allowing the "ppeal, the Court

HELD: 1.1. The direction to pay back wages in its
479 H
480 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A 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 would
B depend on its own facts. The Division Bench was mainly
influenced by two reasons in denying the.. appellant back
wages - unauthorised leave and delay in approaching the
..,.
court. The two reasons noticed by the Division Bench ~
neither collectively nor individually justify denial of back
c wages to the appellant in its entirety. The allegation of
unauthorized absence has not been established as no
enquiry Was held; and the case of the appellant was that
he had sent several applications for extension of leave
for undergoing further training. The Single Judge took
D
note of the delay aspect 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, it will
be against the public interest and also will drain the
E public exchequer is not _founded on legal premise. [Para
12] [485-B-F]

1.2. ·Having regard to all relevant facts and a.
circumstances, particularly the fact that the appellant is ~
F 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. The demand of justice would be met
if the appellant is awarded 50% back wages from the
G date of filing writ petition until he attained the age of
superannuation. [Para 13] [485-G-H; 486-A] ,-
-~

PG/ of Medical Education and Research, Chandigarh vs.
Raj Kumar 2001 (2) SCC 54; U. P. State Brassware

H
C.N. MALLA v. STATE OF JAMMU AND KASHMIR & 481
ORS.

Corporation vs. Uday Narain Pandey 2006 (1) SCC 479; .· A
Metropolitan Transport Corporation vs. V. Venkatesan Civil
Appeal No.5167/2009 decided on August 7, 2009 by S.C.,
referred to.
Case Law Reference:
B
2001 (2) sec 54 Referred to. Para 9
~
~ 2006 (1) sec 479 Referred to. Para 10

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5770 of 2009. c
From the Judgment & Order dated 26.03.2008 of the High
Court of Jammu & Kashmir at Jammu in Latters Patent Appeal
No. 372 of 2000.
D
-J P.S. Patwalia, Jagjit Singh Chhabra, A.S. Rahi, S. Vijay
Singh, Jaswant for the Appellant.

Anis Suhrawardy, Shamama Anis, Syed Mehdi Imam,
Tabrez Ahmad for the Respondents.
E
The Judgment of the Court was delivered by

A
R.M. LODHA, J. 1. 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 F
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
G
the service of the State of Jammu & Kashmir as Assistant
-1 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
H
482 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A 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 unCfergoing further training·
and seeking service in foreign country but his representations
B 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
c 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,
D
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 Court. The writ petition was opposed by the present
E 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 1
F 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:
G "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 ~he petitioner shall be
deemed to have been in service from the date of his
H
C.N. MALLA v. STATE OF JAMMU AND KASHMIR & 483
ORS. [R.M. LODHA, J.]
termination. Now arises the question of back wages. A
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 B
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
c
provisions of section 126 of the Constitution of the State were
not followed nor any 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 terminatfon of D
services of a Government servant, the procedure
established under the Jammu and Kashmir Civil Services
(Classification, Control and Appeal) Rules, 19.56 as well
as the provisions of Section 126 of the Constitution of the
State· have to be followed. We also concur with the view E
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 F
appellant.

8. On May 12, 2009, when the matter came up before this
Court, learned cmmsel appearing on behalf of the respondents
was requested to take instructions whether back wages could G
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 H
484 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A from the state government.
~
9. In PG/ of Medical Education and Research,
Chandigarh vs. Raj Kumar, 1 this Court stated:

"12. Payment of back wages having a discretionary
B 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." -1 'V''

c 10. In UP.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
D because it would be lawful to do s~. 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
E 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:
-if
F
"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
G Jagbir Singh vs. Haryana State Agriculture Marketing
Board & Anr.{JT 2009 (9) SC 396} that in recent past there
-~
has been a shift in the legal position and in a long line of
'""
1. (2001) 2 sec 54.
H 2. (2006) 1 sec 479.
C.N. MALLA v. STATE OF JAMMU AND KASHMIR & 485
ORS. [R.M. LODHA, J.]
cases, this Court has consistently taken the view that the A
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."
B
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
c
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
~ -J approaching the court. The two reasons noticed by the Division D
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 E
training. As regards the second reason viz., 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 F
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
G
) ·-..j .
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
H
486 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A 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
8
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.

N.J. Appeal partly allowed.

-~