Can SSB constable reinstated on ‘sympathetic’ grounds claim back wages? Court answers
The court was hearing the plea filed by one seeking directions to the authorities to treat the period of absence from May 7, 2019, to January 1, 2024, as a period spent on duty with all consequential benefits
The Gauhati High Court was hearing the plea filed by one seeking directions to the authorities to treat the period of absence as a period spent on duty with all consequential benefits. (AI-generated image) The Gauhati High Court has held that a Sashastra Seema Bal (SSB) constable reinstated after being dismissed for overstaying leave to care for his cancer-stricken mother is not entitled to back wages, observing that his reinstatement was granted on grounds of “sympathy and leniency” rather than because the dismissal was illegal.
Justice Rajesh Mazumdar was hearing the plea filed by one seeking directions to the authorities to treat the period of absence from May 7, 2019, to January 1, 2024, as a period spent on duty with all consequential benefits, including seniority, back wages, increments of pay, etc.
“In the opinion of this court, the reinstatement of the petitioner was not a result of any fault in the procedure adopted by the respondent authorities to keep the petitioner out of service. The petitioner had not been kept out of service illegally; rather, his reinstatement was based on sympathy and leniency,” the May 22 order read.
Justice Rajesh Mazumdar upheld the appellate authority’s order directing that the period from the date of dismissal to the date of reporting for duty be regularised on the principle of “no work, no pay”.
‘Absent to care for cancer-stricken mother’
- It was placed on record that the petitioner was serving as a constable on general duty in the Sashastra Seema Bal. He was transferred to the 15th battalion located at Chirang, Assam, where he joined on June 19, 2017.
- During the course of his service, the petitioner had availed leave for 31 days commencing from January 10, 2019, to February 9, 2019, with permission to avail a suffix on February 10, 2019.
- It was the case of the petitioner that he had availed the leave for attending his ailing mother, who was later diagnosed to have been suffering from cancer, and he had to arrange for treatment at different hospitals, including the Tata Memorial Hospital at Mumbai and Homi Bhabha Cancer Hospital, Varanasi.
- It was added that the petitioner could not report back on time, and on the charges of having overstayed his sanctioned leave and not reporting for duties, he was dismissed from his service by an order dated June 17, 2019, issued by the commandant of the battalion, after holding a summary court trial.
- The order dated June 17, 2019, was passed in terms of the relevant rules of the Sashastra Seema Bal Rules, 2009. It was further added that the case of the petitioner was that he received the notices which were served upon his home address, and on July 12, 2019, he addressed different applications in response to the different notices issued to him.
- Aggrieved by the dismissal ordered dated June 17, 2019, the petitioner preferred an appeal to the appellate authority. However, it was dismissed by an order dated November 18, 2019, upholding the order of punishment of dismissal imposed upon the petitioner.
- Aggrieved by the same, the petitioner preferred this plea, challenging the dismissal order and the order of the appellate authority.
- By an order dated November 30, 2023, this court remanded the matter to the appellate authority, which later set aside the order dated June 17, 2019 and directed the reinstatement of the petitioner.
- Further directions were issued that the period between the date of dismissal from service and the date of assumption of duty after the same order would be regularised on the principles of “no work, no pay”.
The petitioner was aggrieved by the orders of the appellate authority in denying him the pay and allowances for the period from the day he allegedly expressed his willingness to join his duties up to the date on which he had been directed to be reinstated in service by the appellate authority.
‘No work, no pay’
The court held that the appellate authority’s order dated January 31, 2024, directing that the period from the date of dismissal to the date of reporting for duty be regularised on the principle of “no work, no pay”, did not warrant interference.
The high court noted that the appellate authority had specifically directed that the petitioner would not receive a salary for the period between his dismissal and reinstatement under the “no work, no pay” principle.
However, the court clarified that since the appellate authority had not imposed any restriction on other service benefits for that period, the petitioner would continue to receive the benefit of continuity of service.
Arguments
Appearing for the petitioner, advocate S Mitra submitted that it is a settled position in law that when an employee expresses his desire to work, and he is kept out of service by the employer based on an illegal order of termination, the employee, on his reinstatement, would be
It was further submitted that since the petitioner had submitted his application to various authorities, where some of the authorities were superior to the disciplinary authority, stating that he was desirous of joining his duties, the same were required to have been decided promptly and judiciously, which was not done in the present case.
Government counsel U K Goswami argued that it is admitted by the petitioner in his representation addressed to the respondent authorities that although he had received the notices recalling him to duty before his dismissal, he had failed to file any reply to any of the notices.
It was further contended that there is no mistake on the part of the authority concerned in treating the period of his absence from the date of dismissal to the date of reinstatement based on the principle of ‘no work-no pay”.
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