G H CHIEF REGIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LIMITEDversusSIRAJ UDDIN KHAN

232                      [2019]REPORTS
               SUPREME COURT    9 S.C.R. 232              [2019] 9 S.C.R.


A             CHIEF REGIONAL MANAGER, UNITED INDIA
                   INSURANCE COMPANY LIMITED
                                       v.
                            SIRAJ UDDIN KHAN
B                       (Civil Appeal No. 5390 of 2019)
                                JULY 11, 2019
              [ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
             Service Law – Payment of arrears of salary and other
      benefits – Respondent-assistant typist was transferred from
C
      Allahabad Branch to Jaunpur Branch – He did not join the said
      branch and was unauthorisedly absent from 02.02.2007 –
      Disciplinary proceedings were initiated against him – By order dated
      14.05.2009, disciplinary authority held respondent guilty of charge
      of unauthorised absence – Thereafter, respondent attained the age
D     of superannuation on 20.06.2012 – On 26.06.2012, disciplinary
      authority terminated his services – Appeal against the said order
      dated 26.06.2012 was dismissed on 18.07.2014 – Writ petition was
      filed by respondent against the orders dated 14.05.2009, 26.06.2012
      and 18.07.2014 – Single Judge of the High Court by order dated
      29.05.2015, set aside the order dated 26.06.2012 and insofar
E
      order dated 14.05.2009 was concerned, no relief was granted to
      the respondent – However, Division Bench of the High Court by
      order dated 15.02.2016 quashed the order dated 14.05.2009 and
      held appellant entitled to all consequential benefits – Since, the
      said order of the Division Bench of the High Court was not
F     challenged it has become final – Thereafter, respondent filed
      another writ petition praying for payment of salary from January,
      2007 to June, 2012 – The Single Judge of the High Court held that
      appellant was entitled for salary w.e.f. 02.02.2007 upto 14.05.2009,
      since order dated 14.05.2009 was set aside by the Division Bench
      of the High Court – Further, order dated 26.06.2012 was also set
G
      aside by the Single Judge of the High Court by order dated
      29.05.2015, thus, salary w.e.f. 14.05.2009 to 20.06.2012 cannot
      be denied to the respondent – On appeal, held: In pursuance of the
      order of the Division Bench of the High Court dated 15.02.2016,
      the respondent is entitled to receive salary from 02.02.2007 to
H
                                    232
          CHIEF REGIONAL MANAGER, UNITED INDIA                         233
       INSURANCE COMPANY LTD. v. SIRAJ UDDIN KHAN

14.05.2009 – Insofar claim for salary or back wages for the            A
period 14.05.2009 to 20.06.2012 is concerned, there is no
adjudication regarding claim of salary or back wages to the
respondent in the impugned judgment of Single Judge for the
period 14.05.2009 to 20.06.2012 – Single Judge was of the
opinion that in view of the setting aside of the order dated
                                                                       B
26.06.2012, payment of salary is automatic, this view of the Single
Judge is not correct – The present is not a case where the
respondent was dismissed from the service and consequent to
dismissal, he could not work and when dismissal was set aside, he
will be automatically entitled for back wages – Therefore, direction
of the High Court to the appellant to make payment of salary after     C
14.05.2009 till 20.06.2012 set aside – Further, appellant directed
to consider the claim of respondent for back wages after 14.05.2009
to 20.06.2012.
      Partly allowing the appeal, the Court
      HELD: 1. The issue, which has to be answered is as to            D
whether by setting aside of the order dated 26.06.2012, whereby
disciplinary authority terminated the service of the respondent,
the respondent was automatically entitled for back wages. A
perusal of the judgment of Single Judge dated 29.05.2015
indicates that although Single Judge has set aside the order dated     E
26.06.2012, but there was no order for payment of back wages or
consequential benefits. Single Judge has set aside the order dated
26.06.2012 and has left the matter there. [Para 11] [241-D-E]
      2. It was after 15.11.2017 that Writ Petition No.61102 of
2017 was filed by the respondent. Thus, in the Writ Petition           F
No.61102 of 2017, the Single Judge was required to adjudicate
on the entitlement of respondent for payment of salary. Single
Judge has adjudicated with regard to entitlement of salary from
02.02.2007 to 14.05.2009 and issued directions thereunder. This
Court may notice that the Division Bench while setting aside the
order dated 14.05.2009 has directed for payment of                     G
consequential benefits. [Para 13] [242-B-C]
      3. There is no adjudication regarding claim of salary or back
wages to the respondent in the impugned judgment of Single Judge
for the period 14.05.2009 to 20.06.2012. Single Judge was of the
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234           SUPREME COURT REPORTS                     [2019] 9 S.C.R.


A     opinion that in view of the setting aside of the order dated
      26.06.2012, payment of salary is automatic, which view of the
      Single Judge is not correct. The present is not a case where the
      respondent was dismissed from the service and consequent to
      dismissal, he could not work and when dismissal was set aside,
      he will be automatically entitled for back wages. [Para 15]
B
      [243-D-E]
            4. It is not a case where respondent was kept away from
      the work on account of dismissal. Admittedly, the respondent
      attained the age of retirement on 20.06.2012 and order
      terminating his services was passed only on 26.06.2012, which
C     was rightly held to be ineffective. [Para 17] [244--F]
            5. In the present case, as noted above, the respondent was
      not kept away from work by any order of the appellant. The order
      of termination of his services/dismissal was passed on 26.06.2012,
      after his retirement on 20.06.2012, which in no manner
D     prohibited the respondent from working. The respondent during
      submission has submitted that he was illegally transferred to
      Branch Office, Jaunpur from Allahabad. He was suffering from a
      disability of more than 40% and he could not have been
      transferred to another place. There is nothing on record to
E     indicate that transfer of respondent from Branch Office, Allahabad
      to Branch Office, Jaunpur was at any time set aside or withdrawn.
      The salary upto 14.05.2009 was allowed to the respondent on
      account of setting aside of the order dated 14.05.2009, which
      was with all consequential benefits but with regard to entitle-
      ment of salary after 14.05.2009 to 20.06.2012, there has been no
F     adjudication by the High Court, which is apparent from judgment
      of the High Court dated 03.07.2018. [Para 22] [247-F-H;
      248-A-B]
             6. Single Judge having itself not determined the
      entitlement of respondent to receive salary after 14.05.2009 to
G     20.06.2012, it ought to have directed the appellant to consider
      the entitlement and take a decision thereon. This Court is of the
      view that ends of justice be served in setting aside the direction
      of the High Court directing the appellant to make payment of
      salary after 14.05.2009 till 20.06.2012, with a direction to the
H     appellant to consider the claim of respondent for back wages
           CHIEF REGIONAL MANAGER, UNITED INDIA                             235
        INSURANCE COMPANY LTD. v. SIRAJ UDDIN KHAN

after 14.05.2009 to 20.06.2012 and pass appropriate orders.                 A
[Para 23] [248-B-C]
       Deepali Gundu Surwase v. Kranti Junior Adhyapak
       Mhavidyalaya (D.Ed.) and Others (2013) 10
       SCC 324 : [2013] 9 SCR 1 ; Airports Authority of
       India and Others v. Shambhu Nath Das alias S.N. Das                  B
       (2008) 11 SCC 498 – relied on.
       Shobha Ram Raturi v. Haryana Vidyut Prasaran Nigam
       Limited and Others (2016) 16 SCC 663 – referred to.
                         Case Law Reference
                                                                            C
       (2016) 16 SCC 663            referred to           Para 7
       [2013] 9 SCR 1               relied on             Para 16
       (2008) 11 SCC 498            relied on             Para 18
       CIVIL APPELLATE JURISDICTION: Civil Appeal No.5390 of
                                                                            D
2019
      From the Judgment and Order dated 03.07.2018 of the High Court
of Judicature at Allahabad in Writ A. No.61102 of 2017.
      P. P. Malhotra, Sr. Adv., Mohit Paul, Yasir Rauf, Ms.Sumaina
Phul, Advs. for the Appellant.                                              E
       Respondent-in-person.
       The Judgment of the Court was delivered by
       ASHOK BHUSHAN, J. 1. Leave granted.
       2. This appeal has been filed challenging the judgment dated         F
03.07.2018 of Allahabad High Court, partly allowing the writ petition of
the respondent, wherein direction has been issued by the High Court for
payment of arrears of salary and other benefits.
       3. By our order dated 02.01.2019, limited notice was issued to the
question as to whether the respondent was entitled for payment of           G
salary after 14.05.2009 to 20.06.2012. The respondent has filed a counter
affidavit and appeared in person when the matter was heard on
01.07.2019.
      4. We have heard Mr. P.P. Malhotra, learned senior counsel for
the appellant and the respondent appearing in-person.                       H
236            SUPREME COURT REPORTS                         [2019] 9 S.C.R.


A            5. The brief facts of the case necessary to be noticed for
      deciding the limited issue as entertained by this Court in this appeal
      are: -
         5.1 The respondent was appointed by the appellant company on the
             post of assistant/typist. The respondent was transferred by
B            order dated 18.08.2006from Allahabad branch of the company
             to Jaunpur branch in pursuance of which he was relieved on
             01.02.2007 from Allahabad to join at Branch Office, Jaunpur.
             The respondent did not join and was unauthorizedly absent from
             02.02.2007. A charge sheet dated 07.06.2007 was issued with
             regard to his unauthorised absence from 02.02.2007 to
C            07.06.2007, for which disciplinary proceedings were initiated,
             Writ petition No.11840 of 2008 was filed by the respondent
             praying for expeditious disposal of the departmental inquiry and
             further direction to the appellant for payment of salary w.e.f.
             23.07.2007.
D        5.2 Learned Single Judge of the High Court vide its order dated
             05.03.2008 disposed of the writ petition directing for
             expeditious disposal of the proceedings and with regard to claim
             of the salary of the respondent, direction was issued to consider
             and decide the representation of the respondent dated 11.11.2007.
E            The disciplinary proceedings with regard to unauthorised
             absence resulted in order dated 14.05.2009 of the disciplinary
             authority holding the respondent guilty of charge of unauthorised
             absence and awarding punishment of “reduction of basic pay
             by two steps” under Rule 23(a) of the General Insurance
             (Conduct, Discipline & Appeal) Rules, 1975. The respondent
F            filed an appeal, which too was rejected.
         5.3 A second charge sheet was issued alleging unauthorised absence
              of 663 days. Charge sheet was sent to the respondent but he
              did not receive the same. The inquiry was conducted ex-parte.
              The respondent, in the meantime, attained the age of
G             superannuation on 20.06.2012. An order dated 26.06.2012 was
              passed by the disciplinary authority terminating his services. A
              departmental appeal against the order dated 26.06.2012 was
              also dismissed on 18.07.2014. A Writ petition No. 59041 of 2014
              was filed by the respondent praying for quashing the orders
H
 CHIEF REGIONAL MANAGER, UNITED INDIA INSURANCE                          237
COMPANY LTD. v. SIRAJ UDDIN KHAN [ASHOK BHUSHAN, J.]

     dated 14.05.2009, 26.06.2012 and 18.07.2014. The learned Single     A
     Judge decided the writ petition filed by the respondent vide its
     judgment dated 29.05.2015. The order dated 26.06.2012
     terminating his services was set aside on two grounds, firstly,
     the inquiry proceedings are vitiated since the charge sheet was
     never served upon the respondent and secondly, the respondent
                                                                         B
     having already retired on 20.06.2012, he could not have been
     terminated on 26.06.2012. Insofar as the challenge to order
     dated 14.05.2009 was concerned, awarding punishment of
     reduction of basic pay by two steps, writ petition was dismissed
     on the ground that the same is barred by laches and the relief to
     that extent was denied.                                             C
5.4 The appellant aggrieved by the order of the learned Single Judge
     dated 29.05.2015 had filed a Special Leave Petition (C) No.26395
     of 2015, which was dismissed by this Court on 18.09.2015. The
     respondent, aggrieved by order of learned Single Judge insofar
     as it has dismissed the writ petition challenging the order dated   D
     14.05.2009, filed a special appeal before Division Bench of the
     High Court. The Division Bench proceeded to consider the
     challenge to the order dated 14.05.2009 and allowed the special
     appeal setting aside the order rejecting the challenge to the
     order dated 14.05.2009. The order dated 14.05.2009 was
     quashed and it was held that appellant shall be entitled to all     E
     consequential benefits. The order dated 15.02.2016 passed by
     the Division Bench in the special appeal was not challenged
     and has become final.
5.5 A contempt application was filed by the respondent being
    Contempt Application No. 2680 of 2016 alleging disobedience          F
    of judgment of learned Single Judge dated 29.05.2015 as well
    as contempt of the Division Bench order dated 15.02.2016.
5.6 The respondent filed another writ petition being Writ Petition
     No. 61102 of 2017 praying for salary for the period from
     January, 2007 to June, 2012 with interest and all consequential     G
     benefits, such as, promotion arrears, medical bills, lump sum
     medical reimbursement and re-fixation of pension. The said
     writ petition has been partly allowed by impugned judgment dated
     03.07.2018.
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238         SUPREME COURT REPORTS                          [2019] 9 S.C.R.


A     5.7 The learned Single Judge held that the order dated 14.05.2009
           awarding punishment having been set aside by Division Bench
           of the High Court by order dated 15.02.2016, the appellant is
           entitled for salary w.e.f. 02.02.2007 upto 14.05.2009. The
           contention regarding non-payment of salary by the appellant
           from 02.02.2007 to 20.06.2012 was noticed in paragraph No.16
B
           of the impugned judgment, to the effect that respondent having
           been relieved from Branch Office, Allahabad by relieving order
           dated 01.02.2007 and he having not joined the Branch Office,
           Jaunpur, he was not entitled for any salary. Insofar as
           entitlement of salary from 02.02.2007 to 14.05.2009 is concerned
C          following directions were issued by learned Single Judge in
           paragraph Nos. 17 and 19, which is to the following effect: -
             “17. However, this Court in Special Appeal Defective No.
             87 of 2016 by its order dated 15.02.2016 had set aside the
             punishment order dated 14.05.2009 and directed that the
D            appellant shall be entitled to consequential reliefs. This Court
             having directed the petitioner to be given all consequential
             benefits and the order dated 14th of May, 2009 being quashed,
             the petitioner was entitled to salary w.e.f. 02.02.2007 up to
             14.05.2009, the date, the punishment order was passed of
             reduction in basic pay by two stages. This payment of salary
E            has apparently not been made by the respondent on the ground
             of “No Work No Pay”.
             19. The petitioner is entitled to salary w.e.f. 02.02.2007 up to
             14.05.2009 along with interest at the rate of 18 per cent per
             annum.”
F
        5.8 With regard to claim of salary of the appellant after 14.05.2009,
           learned Single Judge took the view that the order dated
           26.06.2012 having been set aside by learned Single Judge on
           29.05.2015, which judgment was unsuccessfully challenged in
           this Court and has attained finality, hence salary w.e.f.
G          14.05.2009 to 20.06.2012 cannot be denied and direction was
           issued to pay salary with 18% interest. With regard to other
           claims, the High Court noticed the payments made to the
           respondent towards provident fund, gratuity fund, GSLI Claim,
           Leave Encashment and other payments totalling
H          Rs.25,73,830/-.
   CHIEF REGIONAL MANAGER, UNITED INDIA INSURANCE                            239
  COMPANY LTD. v. SIRAJ UDDIN KHAN [ASHOK BHUSHAN, J.]

      5.9 There is no other issue in the present appeal except direction     A
         for payment of salary after 14.05.2009 to 20.06.2012.
       6. Learned counsel for the appellant submits that High Court
committed error in directing for payment of salary after 14.05.2009 to
20.06.2012, whereas the respondent absented from work during the period
and was clearly not entitled for payment of salary on the principle of       B
“No Work No Pay”. It is submitted that present is not a case where by
virtue of any order terminating the services of the respondent, he could
not work. With regard to salary after 14.05.2009 till 20.06.2012, learned
Single Judge has not adjudicated the claim except observing that in view
of the judgment of High Court dated 29.05.2015 against which special
leave petition was dismissed, respondent was entitled for arrears of         C
salary. He further submits that the fact that by virtue of the judgment of
learned Single Judge dated 29.05.2015, respondent has to be treated in
service does not automatically result in any direction to pay the salary,
since no such direction was issued in the judgment of learned Single
Judge dated 29.05.2015. The payment of salary for the aforesaid period       D
does not automatically flow from the judgment of learned Single Judge.
He submits that the fund of the appellant company being public fund, the
payment of salary cannot be made when the respondent kept himself
away from the work.
       7. The respondent appearing in person refuted the submissions of      E
the appellant and submits that he was entitled for salary since his
dismissal order dated 26.06.2012 was set aside on 29.05.2015, against
which special leave petition filed by the company had been dismissed by
this Court on 18.09.2015. He submits that he went to join the Branch
Office at Allahabad on 23.07.2007 but he was not permitted to take
charge by Branch Manager of Branch Office-1, Allahabad. He has               F
placed reliance on the judgment of this Court in Shobha Ram Raturi
Vs. Haryana Vidyut Prasaran Nigam Limited and Others, (2016)
16 SCC 663. He submits that the principle of “No Work No Pay”
does not apply in the facts of the present case and learned Single Judge
has rightly directed for payment of salary after 14.05.2009 to 20.06.2012.   G
      8. We have considered the submissions of the learned counsel for
the parties and have perused the records.
       9. In Writ Petition No. 59041 of 2014, two set of orders were
challenged namely the order dated 14.05.2009, by which for unauthorised
                                                                             H
240            SUPREME COURT REPORTS                         [2019] 9 S.C.R.


A     absence for the period 02.02.2007 to 07.06.2007, he was awarded
      punishment of reduction of basic pay by two steps and secondly, the
      order dated 26.06.2012 terminating his services and order dated
      18.07.2014 dismissing his departmental appeal. Learned Single Judge
      has set aside the order dated 26.06.2012 vide its judgment dated
      29.05.2015 as noted above. The learned Single Judge quashed the
B
      order dated 26.06.2012 on following two grounds – one, second charge
      sheet alleging unauthorised absence for 663 days was never served on
      the respondent and second, the respondent having retired from service
      on 20.06.2012, no order terminating his services could have been passed
      on 26.06.2012. The relevant discussion and order of the learned Single
C     Judge with regard to order dated 26.06.2012 is as follows:-
            “There is nothing on record to show that the chargesheet was
            ever sought to be served upon the petitioner through registered
            post and it is not known as to from where this endorsement has
            come and to who wrote the remark “GHAR BAND RAHTA
D           HAI” or “not met”. Even, if it is assumed that the petitioner was
            not at his house and therefore the house was closed, it was
            expected of the respondents to have taken steps to notify the
            petitioner about the chargesheet through newspaper publication.
            Nothing has been mentioned in the counter affidavit as to whether
            this procedure was adopted. Therefore, it is quite clear that the
E           chargesheet was never served upon the petitioner till 20.06.2012
            and thereafter the order of removal from service was passed on
            26.06.2012. In this view of the matter, the petitioner cannot be
            said to have had notice of the enquiry proceedings and therefore
            if the respondents proceeded to hold enquiry ex parte, such
F           proceedings are clearly vitiated and it must be held that the
            petitioner has been denied reasonable and adequate opportunity
            of hearing.
            There is another aspect of the matter. The petitioner’s case is
            that he retired from service on 20.06.2012 and the order of
G           termination was passed on 26.06.2012. The averments in
            paragraph 39 of the counter affidavit are also to the effect that
            the petitioner retired from service and even on the date of
            retirement he had refused to accept the chargesheet and absconded
            from office. This being so once the petitioner retired from service
            on 20.06.2012 no order terminating his services could have been
H           passed on 26.06.2012 as he ceased to be in service of the
   CHIEF REGIONAL MANAGER, UNITED INDIA INSURANCE                             241
  COMPANY LTD. v. SIRAJ UDDIN KHAN [ASHOK BHUSHAN, J.]

      respondents w.e.f. 20.06.2012. A person cannot be removed from          A
      service after he has already retired from service.
      In this view of the matter, the impugned orders dated 26.06.2012
      and 18.07.2014 cannot survive and are accordingly quashed.
      The writ petition is allowed.”
                                                                              B
       10. As noted above, learned Single Judge dismissed the writ
petition insofar as order dated 14.05.2009 is concerned, challenge to
which order stood accepted by Division Bench in Special Appeal No. 87
of 2016, where Division Bench has set aside the order dated 14.05.2009
and directed for payment with consequential benefits. In pursuance of
the order of the Division Bench dated 15.02.2016, the respondent is           C
entitled to receive salary from 02.02.2007 to 14.05.2009 with regard to
which we have not entertained the appeal.
      11. Now, the issue, which has to be answered by us is as to whether
by setting aside of the order dated 26.06.2012, the respondent was
automatically entitled for back wages. A perusal of the judgment of           D
learned Single Judge dated 29.05.2015 indicates that although learned
Single Judge has set aside the order dated 26.06.2012, but there was no
order for payment of back wages or consequential benefits. Learned
Single Judge has set aside the order dated 26.06.2012 and has left the
matter there.                                                                 E
      12. It is further relevant to notice that when contempt application
was filed by the respondent being Contempt Application No. 2680 of
2016, the High Court observed that there has been no adjudication by
the Writ Court on the question as to whether the respondent was entitled
to payment of salary for the period 2007 to 2012. The observations of         F
the Contempt Court in last two paragraph is as follows:-
      “From the materials brought on record, it transpires that there is
      no adjudication by the writ court on the question as to whether the
      applicant is entitled to payment of salary for the period 2007 to
      2012, particularly as he had not worked during that period. There
                                                                              G
      is also no adjudication of his right to claim promotion or to receive
      medical bills. The issues therefore as are being raised by the
      applicant in this petition need not be entertained by this Court, at
      this stage. It transpires that on account of setting aside of the
      dismissal order the petitioner has been paid all his retiral dues.
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242            SUPREME COURT REPORTS                          [2019] 9 S.C.R.


A           Leaving it open for the applicant to seek appropriate adjudication
            in respect of his entitlement to receive salary for the period 2007
            to 2012 as well as other benefits including promotional pay scale,
            medical bills and re-fixation of his pension, in appropriate
            proceedings, this contempt petition is consigned to records.”
B            13. It was after 15.11.2017 that Writ Petition No.61102 of 2017
      was filed by the respondent. Thus, in the Writ Petition No.61102 of
      2017, the learned Single Judge was required to adjudicate on the
      entitlement of respondent for payment of salary. Learned Single Judge
      has adjudicated with regard to entitlement of salary from 02.02.2007 to
      14.05.2009 and issued directions thereunder. We may notice that the
C     Division Bench while setting aside the order dated 14.05.2009 has
      directed for payment of consequential benefits. It is useful to extract
      the operative portion of the said Appellate Court judgment dated
      15.02.2016, which is to the following effect:-
            “We accordingly allow the special appeal. The judgment and
D           order of the learned Single Judge dated 29 May, 2015 and 2
            December, 2015 insofar as it rejects the challenge laid by the
            appellant to the order dated 14 May, 2009 is hereby set aside.
            Consequently, the order dated 14 May, 2009 is also quashed. The
            appellant shall be entitled to all consequential benefits.”
E            14. There is clear difference between the direction of the High
      Court insofar as setting aside the order dated 14.05.2009 is concerned
      and insofar as setting aside the order dated 26.06.2012 is concerned,
      whereas there is a clear direction for payment of consequential reliefs
      while setting aside the order dated 14.05.2009 there is no direction with
F     regard to payment of salary while setting aside the order dated
      26.06.2012, hence the question was required to be gone into by learned
      Single Judge while deciding the Writ Petition No.61102 of 2017. We
      may also notice the consideration of learned Single Judge while noticing
      the claim of the respondent for quashing and setting aside the order
      dated 26.06.2012. In paragraph Nos. 20 and 21, entire discussion re-
G     garding setting aside the order dated 26.06.2012 is contained, which is to
      the following effect:-
            “20. With regard to the absence of the petitioner thereafter, the
            petitioner was subjected to disciplinary proceeding and a charge
            sheet was issued to him alleging the absence of 663 days. The
H
  CHIEF REGIONAL MANAGER, UNITED INDIA INSURANCE                              243
 COMPANY LTD. v. SIRAJ UDDIN KHAN [ASHOK BHUSHAN, J.]

      inquiry proceeded ex-parte against him and ultimately the               A
      dismissal order was passed on the ground of unauthorised
      absence on 26.06.2012. The petitioner had in the meantime been
      retired on 20.06.2012 and this Court in its judgment and order
      dated 29.05.2015 in Writ - A No. 59041 of 2014 set aside the
      dismissal order and the appellate order. This judgment of this Court
                                                                              B
      was challenged by the respondent in Special Leave Petition which
      was dismissed on 18.09.2015 and the judgment and order dated
      29.05.2015 attained finality.
      21. The respondent cannot therefore say that the petitioner was
      unauthorisedly absent for the said period now at this late stage.
      The petitioner is entitled to the arrears of salary w.e.f. 14.05.2009   C
      up to 20.06.2012, the date of his retirement, along with interest at
      the rate of 18% per annum from the date when it became due till
      the date of its actual payment.”
       15. There is no adjudication regarding claim of salary or back
wages to the respondent in the impugned judgment of learned Single            D
Judge for the period 15.05.2009 to 20.06.2012. Learned Single Judge
was of the opinion that in view of the setting aside of the order dated
26.06.2012, payment of salary is automatic, which view of the Single
Judge is not correct. The present is not a case where the respondent
was dismissed from the service and consequent to dismissal, he could          E
not work and when dismissal was set aside, he will be automatically
entitled for back wages.
       16. We may notice some of the judgments of this Court where
issue of back wages has been considered by this Court. This Court in
Deepali Gundu Surwase Vs. Kranti Junior Adhyapak                              F
Mhavidyalaya (D.Ed.) And Others, (2013) 10 SCC 324 was
considering a case where the question was considered as to whether
the appellant was entitled to wages for the period she was kept out of
service forcibly by the management of school. In paragraph No. 22,
following was laid down:-
                                                                              G
      “22. The very idea of restoring an employee to the position which
      he held before dismissal or removal or termination of service
      implies that the employee will be put in the same position in which
      he would have been but for the illegal action taken by the
      employer. The injury suffered by a person, who is dismissed or
                                                                              H
244            SUPREME COURT REPORTS                          [2019] 9 S.C.R.


A           removed or is otherwise terminated from service cannot easily be
            measured in terms of money. With the passing of an order which
            has the effect of severing the employer-employee relationship,
            the latter’s source of income gets dried up. Not only the
            employee concerned, but his entire family suffers grave
            adversities. They are deprived of the source of sustenance. The
B
            children are deprived of nutritious food and all opportunities of
            education and advancement in life. At times, the family has to
            borrow from the relatives and other acquaintance to avoid
            starvation. These sufferings continue till the competent
            adjudicatory forum decides on the legality of the action taken by
C           the employer. The reinstatement of such an employee, which is
            preceded by a finding of the competent judicial/quasi-judicial body
            or court that the action taken by the employer is ultra vires the
            relevant statutory provisions or the principles of natural justice,
            entitles the employee to claim full back wages. If the employer
            wants to deny back wages to the employee or contest his
D
            entitlement to get consequential benefits, then it is for him/her to
            specifically plead and prove that during the intervening period the
            employee was gainfully employed and was getting the same
            emoluments. The denial of back wages to an employee, who has
            suffered due to an illegal act of the employer would amount to
E           indirectly punishing the employee concerned and rewarding the
            employer by relieving him of the obligation to pay back wages
            including the emoluments.”
            17. We may hasten to add that present is not a case where
      respondent was kept away from the work on account of dismissal.
F     Admittedly, the respondent attained the age of retirement on 20.06.2012
      and order terminating his services was passed only on 26.06.2012, which
      was rightly held to be ineffective.
             18. We may notice another judgment of this Court in Airports
      Authority of India and Others Vs. Shambhu Nath Das alias S.N.
G     Das, (2008) 11 SCC 498. In the above case, the respondent did not
      join after expiry of the leave. The respondent was issued a warning that
      unless he joins on or before 30.10.1985, 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
      from 01.11.1985. The said order was challenged by the respondent and
H
   CHIEF REGIONAL MANAGER, UNITED INDIA INSURANCE                                245
  COMPANY LTD. v. SIRAJ UDDIN KHAN [ASHOK BHUSHAN, J.]

learned Sigle Judge on 10.11.1995 directed the Airports Authority of             A
India to allow the respondent to join duty but it was held that he shall not
be entitled for the arrears of pay for the period he was absent. The
order of learned Single Judge was again challenged by the respondent
without joining. The Division Bench set aside the order of the learned
Single Judge and remanded the matter back to the learned Single Judge.
                                                                                 B
Learned Single Judge directed the appellant to reinstate the respondent
and further directed that insofar as the salary of the writ petitioner is
concerned, during the period he stayed away from the work, 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 17.10.1985 till 10.11.1995. The            C
Airports Authority of India accepted the judgment and allowed him to
join w.e.f. 01.11.1999 and passed an order on 14.05.2002 holding that
the period of unauthorised 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 14.05.2002 was once again
                                                                                 D
challenged by the respondent claiming back wages, which was allowed
by the learned Single Judge. On further denial of claim, matter was
taken by respondent to learned Single Judge to issue certain directions.
Against the learned Single Judge’s Order, matter was taken in appeal
before Division Bench, where direction to pay 50% of back wages was
issued. Allowing the appeal, this Court stated following in paragraph            E
Nos. 8 to 11:-
       “8. This order of the learned Single Judge has been set aside by
       the Division Bench vide the impugned order dated 21-3-2007 with
       the observations that the order of the High Court in CR (W)
       No. 5715 of 1986 which had directed that the respondent be paid           F
       50% of the back wages for the period from 17-10-1985 to
       10-11-1995 should be complied with.
       9. 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        G
       of the Division Bench to grant him back wages from 17-10-1985
       to 10-11-1995 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
                                                                                 H
246            SUPREME COURT REPORTS                           [2019] 9 S.C.R.


A           already been given to him as he had been taken back in service
            despite having remained absent for almost fifteen years.
            10. 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
B           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
            13-8-1999 which had attained finality had directed as under:
C              “(a) Insofar 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.”

D           11. 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 17-10-1985 to 10-11-1995 which are far in excess of the
            directions in the order dated 13-8-1999. We accordingly allow
            this appeal, set aside the order of the Division Bench and restore
E           the order of the learned Single Judge dated 15-4-2004.”
            19. This Court held that there was no justification whatsoever to
      grant any back wages to the respondent on the general principle that
      nobody could be directed to claim wages for the period that he remained
      absent without leave or without justification.
F
             20. We may further notice the judgment of this Court, which has
      also been relied on by the respondent in his counter affidavit, i.e.,
      judgment of this Court in Shobha Ram Raturi Vs. Haryana Vidyut
      Prasaran Nigam Limited and Others (supra). In the above case,
      the appellant was retired from service on 31.12.2002, even though he
G     would have, in the ordinary course, attained his date of retirement on
      superannuation, only on 31.12.2005. The appellant assailed the order of
      retirement, which was allowed by learned Single Judge. Learned Single
      Judge has denied the back wages to the appellant on the principle of “no
      work no pay”. The order of learned Single Judge was assailed by the
      appellant by filing a Letters Patent Appeal, which too was dismissed.
H
  CHIEF REGIONAL MANAGER, UNITED INDIA INSURANCE                            247
 COMPANY LTD. v. SIRAJ UDDIN KHAN [ASHOK BHUSHAN, J.]

This Court allowed the appeal of the appellant and made following           A
observations in paragraph Nos. 3 and 4:-
      “3. Having given our thoughtful consideration to the controversy,
      we are satisfied, that after the impugned order of retirement dated
      31-12-2002 was set aside, the appellant was entitled to all
      consequential benefits. The fault lies with the respondents in not    B
      having utilised the services of the appellant for the period from
      1-1-2003 to 31-12-2005. Had the appellant been allowed to
      continue in service, he would have readily discharged his duties.
      Having restrained him from rendering his services with effect
      from 1-1-2003 to 31-12-2005, the respondent cannot be allowed
      to press the self-serving plea of denying him wages for the period    C
      in question, on the plea of the principle of “no work no pay”.
      4. For the reasons recorded hereinabove, we are satisfied, that
      the impugned order passed by the High Court, to the limited
      extent of denying wages to the appellant, for the period from
      1-1-2003 to 31-12-2005 deserves to be set aside. The same is          D
      accordingly hereby set aside.”
      21. This Court held in the above case that; having restrained the
appellant from rendering his services with effect from 1-1-2003 to
31-12-2005, the respondent cannot be allowed to press the plea of the
principle of “no work no pay” for denying the wages. In the above case,     E
the appellant was restrained from working due to order of retirement
dated 31.12.2002, due to which he could not work till his normal
retirement. When the order dated 31.12.2002 was set aside,
automatically, he became entitled for back wages and the principle of
“no work no pay” was not attracted.                                         F
      22. In the present case, as noted above, the respondent was not
kept away from work by any order of the appellant. The order of
termination of his services/dismissal was passed on 26.06.2012, after
his retirement on 20.06.2012, which in no manner prohibited the
respondent from working. The respondent during submission has               G
submitted that he was illegally transferred to Branch Office, Jaunpur
from Allahabad. He was suffering from a disability of more than
40% and he could not have been transferred to another place. There is
nothing on record to indicate that transfer of respondent from Branch
Office, Allahabad to Branch Office, Jaunpur was at any time set aside
                                                                            H
248                SUPREME COURT REPORTS                       [2019] 9 S.C.R.


A     or withdrawn. The salary upto 14.05.2009 was allowed to the
      respondent on account of setting aside of the order dated 14.05.2009,
      which was with all consequential benefits but with regard to entitlement
      of salary after 14.05.2009 to 20.06.2012, there has been no adjudication
      by the High Court, which is apparent from judgment of the High Court
      dated 03.07.2018, as extracted above.
B
             23. Learned Single Judge having itself not determined the
      entitlement of respondent to receive salary after 14.05.2009 to 20.06.2012,
      it ought to have directed the appellant to consider the entitlement and
      take a decision thereon. We are of the view that ends of justice be
      served in setting aside the direction of the High Court directing the
C     appellant to make payment of salary after 14.05.2009 till 20.06.2012,
      with a direction to the appellant to consider the claim of respondent for
      back wages after 14.05.2009 to 20.06.2012 and pass appropriate orders
      giving reasons within three months from today. It shall also be open for
      the respondent to submit an appropriate representation alongwith
D     relevant materials regarding his entitlement for salary for the period
      15.05.2009 to 20.06.2012 to the appellant within a period of one month
      from today.
            24. The appeal is partly allowed to the extent as indicated above.
      The parties shall bear their own costs.
E
      Ankit Gyan                                              Appeal partly allowed.




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G




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