1. The State of Jharkhand 2. Superintendent of Police, P.O. and P.S. – Sahebganj v. Shivjatan Murmu, son of Bhola Murmu, resident of village Baradih, P.O. - Kero Bazar
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 189 of 2023 ----- 1. The State of Jharkhand 2. Superintendent of Police, P.O. and P.S. – Sahebganj 3. Deputy Inspector General of Police, Santhal Pargana Range, P.O. and P.S. – Dumka, Dumka 4. Director General and Inspector General of Police, Jharkhand, P.O. Dhurba, P.S. – Jagarnathpur, Ranchi … … … Appellants Versus Shivjatan Murmu, son of Bhola Murmu, resident of village Baradih, P.O. - Kero Bazar, P.S. – Sundarpahari, District – Godda. … … … Respondent ------- CORAM: HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE ARUN KUMAR RAI For the Appellants For the Respondent ------ ------ : Mr. Anish Kr. Mishra, AC to Sr. S.C. - I : Mr. Parambir Singh Bajaj, Advocate Order No. 09/Dated 22nd July, 2024 I.A. No. 5372 of 2023 1. This interlocutory application has been filed for condoning the delay of 98 days, which has occurred in preferring this appeal. 2. Heard the learned counsel for the parties. 3. The objection has been made by filing affidavits on behalf of the writ-petitioner. 4. This Court, considering the grounds shown in the delay condonation application and keeping the facts into consideration that the issue is to be decided on merit, is of the view that delay in filing the instant appeal is to be condoned. 5. Accordingly, I.A. No. 5372 of 2023 is allowed and the delay of 98 days in preferring the appeal is hereby condoned. Page 1 L.P.A. No. 189 of 2023 6. The instant appeal, under Clause 10 of the Letters Patent, is directed against the order/judgment dated 06.12.2022 passed by the learned Single Judge of this Court in W.P.(S) No. 762 of 2022 whereby and whereunder the decision taken by the authority as contained in order dated 29.10.2021 by which it has been ordered that the petitioner will not be entitled for any back wages for the period from 02.02.2010 to 29.10.2021 has been set aside and further respondents were directed to pay the back wages to the respondent/writ petitioner for the period from 02.02.2010 to 29.10.2021. Factual Matrix 7. The brief facts of the case, as per the pleading made in the writ petition which require to be enumerated herein reads as under: - 8. The writ petitioner (respondent herein) was working as a Constable in Jharkhand Police. A departmental charge sheet was issued to the petitioner on 21.07.2009, alleging therein that he had married one Meena Soren but was not keeping her with him as such this conduct of the petitioner amounts to misconduct and dereliction in duty and fraud. Page 2 9. The petitioner took a defence that Meena Soren was not married with him as they proposed to get married, but later on, it came to light that Meena Soren is already married and her husband is alive. The husband of Meena Soren and father of this petitioner objected the marriage thus, the marriage was not solemnized. 10. A departmental proceeding was initiated and the petitioner was punished vide memo no. 274 dated 02.02.2010, by the Superintendent of Police, Sahibganj in a departmental proceeding no. 05/2009. The petitioner preferred an appeal before the Appellate Authority, which was also dismissed by order dated 30.12.2010. 11. Being aggrieved from the aforesaid orders the respondent/writ
Decision
petitioner preferred the writ petition being W.P.(S) No. 3945 of 2012 which was disposed of on 27.02.2021. However, this Court while disposing of the writ petition has not interfered with the order of punishment, but had set aside the appellate order and remitted the matter back to the appellate authority to decide the appeal on merit. 12. The appellate authority, in compliance with the said order, modified the order of punishment by replacing it with the punishment of stoppage to two annual increments. However, it was ordered that during said period he was kept out of service, as such he will not be entitled for any back wages on the principle of “no work no pay”. Page 3 13. The writ-petitioner being aggrieved with the said part of the order has preferred the writ petition being W.P.(S) No. 762 of 2022. The learned single Judge after hearing both the parties has allowed the writ petition and quashed the order dated 29.10.2021 by which it has been ordered that the petitioner will not be entitled for any back wages for the period from 02.02.2010 to 29.10.2021 and further respondents were directed to pay the back wages to the respondent/writ petitioner for the period from 02.02.2010 to 29.10.2021. 14. Hence, the present appeal has been preferred by the state respondents. 15. It is evident from the factual aspects that the writ-petitioner was working as a Constable in Jharkhand Police and a departmental proceeding was initiated on 21.07.2009, alleging therein that he had married one Meena Soren but was not keeping with him. The said departmental proceeding was culminated into the final decision of removal of the petitioner from the service vide order as contained in Memo No. 274 dated 02.02.2010. 16. The writ-petitioner aggrieved with the said decision, had preferred an appeal before the appellate authority which was also dismissed vide order dated 30.12.2010. Page 4 17. The petitioner approached this Court by filing a writ petition being W.P.(S) No. 3945 of 2012 which was disposed of on 27.02.2021. However, this Court while disposing of the writ petitioner being W.P.(S) No. 3945 of 2012 has not interfered with the order of punishment, but had set aside the appellate order and remitted the matter back to the appellate authority to decide the appeal on merit. 18. The appellate authority, in compliance with the said order, modified the order of punishment by replacing it with the punishment of stoppage to two annual increments. However, it was ordered that during the period he was kept out of service, he will not be paid any back wages on the principle of “no work no pay”. 19. The writ-petitioner being aggrieved with the said part of the order by which the writ-petitioner has been held not entitled for any back wages for the period from 02.02.2010 to 29.10.2021, has challenged the same by filing the writ petition being W.P.(S) No. 762 of 2022. 20. The learned Single Judge by relying upon the judgment rendered by the Hon’ble Apex Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya, reported in (2013) 10 SCC 324 as also the judgment rendered in the case of Jayantibhai Raojibhai Patel Vs. Municipal Council, Narkhed and Others, reported in (2019) 17 SCC 184, has allowed the appeal by Page 5 quashing the part of the order 29.10.2021 by holding the writ- petitioner entitled for the back wages of the period from 02.02.2010 to 29.10.2021 with a direction upon the respondents to release the said amount, against which the present intra-court appeal has been preferred. Submission of the learned Counsel for the Appellants 21. Mr. Anish Kr. Mishra, learned AC to Sr. S.C.– I, appearing for the appellant-State, has submitted by taking the ground that the judgment which has been relied upon by the learned Single Judge rendered by the Hon’ble Apex Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (supra) is not applicable in the facts and circumstances of the case, since, the said judgment pertains to the labour dispute and it is also in connection with the wrongful/illegal termination and the illegal termination if quashed and set aside then in that circumstances the guidelines have been given as under paragraph 38 of the said judgment. 22. It has further been contended that in the instant case the finding of the Enquiry Officer has remained intact and the appellate authority has only modified the punishment of dismissal from service to that of withholding the two annual increments. 23. Since, the finding of the Enquiry Officer has remained intact meaning thereby the charge has been found to be proved but only Page 6 on the ground of quantum, the punishment of removal from service has been modified to that of withholding the two annual increments, as such the question of making payment of back wages does not arise. Therefore, the appellants by taking into consideration the aforesaid aspect of the matter, has passed an order declining the benefit of back wages in favour of the writ-petitioner which cannot be said to suffer from an error. 24. The learned State counsel based upon the aforesaid grounds has submitted that the judgment passed by the learned Single Judge, therefore, suffer from an error and hence, the said appeal is fit to be allowed. Submission of the learned Counsel for the Respondent 25. Mr. Parambir Singh Bajaj, learned counsel appearing on behalf of the respondent-writ petitioner has contended that there is no error in the order impugned as passed by the learned Single Judge since, it is the appellate authority on the basis of a direction passed by this Court in W.P.(S) No. 3945 of 2012 has modified the punishment of removal from the service to that of the punishment of withholding two annual increments and as such it cannot be disputed that the punishment of the removal which has been inflicted by the disciplinary authority has been found to be improper and that is the reason the punishment of removal has Page 7 been modified to that of the punishment of withholding two annual increments. It has further been contended that from the aforesaid fact it is apparent that if the punishment of withholding of two annual increments would have been depicted at its inception by the appellate authority in such circumstance writ petitioner would have been in a position to discharge his duty and he would have got the salary of the aforesaid period. But the decision of the disciplinary authority by which petitioner has been removed from the service, subsequently has been found to be improper which led the writ- petitioner from deprivation of the back wages for the aforesaid period. 26. Learned counsel based upon the aforesaid grounds has submitted that the learned Single Judge since has taken into consideration the aforesaid facts coupled with the applicability of the judgment rendered in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (Supra), hence, the judgment passed by the learned Single Judge cannot be said to suffer from an error. Analysis 27. This Court has heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge. Page 8 28. The issue raised on behalf of the State-appellant regarding the denial of the arrears of back wages for the period from 02.02.2010 to 29.10.2021 on the ground of applicability the principle of “no work no pay”. 29. Thus, the main argument on behalf of the State-appellant is the applicability the principle of “no work no pay” which is to be adjudged by this Court as to whether the principle of “no work no pay” will be applicable in the facts and circumstances of the present case. 30. This Court before entering into the legality and propriety of the impugned order, deem it fit and proper to refer legal position pertaining to entitlement of back wages by the workman, which has been considered by Hon’ble Apex Court (three judges) in the case of Union of India and Others Vs. K.V. Jankiraman reported in (1991) 4 SCC 109 wherein it has been held that although no work no pay is the normal rule, but it has got exception and it will not be applicable in a case where the employee was willing to work but had not been allowed to discharge the duty and if such a condition would be there, the principle of no work no pay will not be applicable. Relevant paragraph, i.e., para-25 of the said judgment is being reproduced as under: “25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to Page 9 cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.” 31. Further, the Hon’ble Apex Court in the case of Commissioner, Karnataka Housing Board Vs. C. Muddaiah reported in (2007) 7 SCC 689 it has been held at paragraph 34 thereof which reads hereunder as :- “34. We are conscious and mindful that even in absence of statutory provision, normal rule is ’no work no pay’. In appropriate cases, however, a Court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering ’as if he had worked’. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected.” 32. Similarly, in the case of Jasmer Singh Vs. State of Haryana and Another reported in (2015) 4 SCC 458 the Hon’ble Apex Court has reiterated the same principle at paragraph 21 and 22 thereof which reads hereunder as: - “21. The said relief in favour of the appellant-workman, particularly the full back wages is supported by the legal principles laid down by this Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, wherein the Division Bench of this Court to which one of Page 10 us was a member, after considering three-Judge Bench decision, has held that if the order of termination is void ab initio, the workman is entitled to full back wages. 22. The relevant para of the decision is extracted hereunder: - "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 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 concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The 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 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 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. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments." 33. Thus, it is evident that larger Bench of the Hon’ble Apex Court in the case of Union of India and Others Vs. K.V. Jankiraman (supra) has held that although no work no pay is the normal rule, Page 11 but it has got exception and it will not be applicable in a case where the employee was willing to work but had not been allowed to discharge the duty and if such a condition would be there, the principle of no work no pay will not be applicable. 34. Thus, There is no denial of about the settled principle of law that the principle of “no work no pay “will be applicable in as situation where the delinquent employee who was not willing to discharge his duty and subsequent thereto if such employee is claiming to salary then principle of “no work no pay” will be applicable but contrary to the aforesaid situation if the delinquent employee will willing to discharge his duty but if the employer who has denied such opportunity then the principle of “no work no pay” will not be applicable in such circumstances, otherwise the situation would be that even if the delinquent employee was willing to discharge his duty but it is the employer who has not provided opportunity to the employee to discharge the duty and as such the delinquent employee even it at no fault of his will be deprived to have the salary for that period. 35. Further, if the said situation will be allowed to be carried then the employer even though being a wrong doer will be allowed to take advantage of his action, which is not permissible in the eye of law. Reference in this regard may be taken from the judgment rendered by the Hon’ble Apex Court in the case of Kusheshwar Page 12 Prasad Singh vs. State of Bihar and Ors., (2007) 11 SCC 447, wherein at paragraphs-14, 15 and 16, the Hon’ble Apex Court has observed as under: “14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal [AIR 1961 SC 1353] wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong). 15. … This Court (at SCC p. 142, para 28) referred to Broom's Legal Maxims (10th Edn.), p. 191 wherein it was stated: “It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure.” 16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, “a wrongdoer ought not to be permitted to make a profit out of his own wrong”.” 36. Further, in Advanta India Limited vs. B. N. Shivanna and Anr., (2018) 14 SCC 666, the Hon’ble Apex Court has been pleased to observe at para-20 which reads as under: 20. After going through the record, we find that the BCI has shown undue indulgence to the respondent by allowing him to take advantage of his own wrong, in the guise of exercising its review power. It is a case of nullus commodum capere potest de injuria sua propria meaning thereby that a party cannot take advantage of its own wrong. This maxim is explained in Eureka Forbes Ltd. v. Allahabad Bank in the following manner: (SCC p. 217, para 66) “66. The maxim Page 13 nullus commodum capere potest de injuria sua propria has a clear mandate of law that, a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations.” 37. Further, the second limb of argument which has been advanced on behalf of the appellants-State is regarding the non-applicability of the judgment rendered by the Hon’ble Apex Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (Supra) in the fact and circumstances of the instant case. 38. This Court has gone through the judgment rendered by the Hon’ble Apex Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (Supra) wherein a guideline has been laid down in paragraph 38 propounded therein in which cases the principle of “no work no pay” will be applicable and in which case back wages are to be paid. 39. The relevant paragraph of the aforesaid judgment are being quoted as under: “38. The propositions which can be culled out from the aforementioned judgments are: 38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. Page 14 38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the Page 15 wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are 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 blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply 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 advantageous position vis-(cid:224)-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. v. Employees. 38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches, referred to hereinabove and cannot be treated as good law…..” 40. Admittedly, the said judgment has been rendered in the pretext of labour dispute but the principle which has been taken into consideration in the said judgment is that in which case the principle of “no work no pay” is made to be applicable. 41. It is evident from the aforesaid judgment, more particularly para-38.3 which starts as “Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back Page 16 wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.” It is, thus, evident from the aforesaid paragraph that the ordinarily a pleading is to be made before the adjudicating authority of the court of first instance that he/she was not gainfully employed. 42. Further, from paragraph-38.4, it would be evident that the Hon’ble Apex Court has been pleased to lay down that the case in which the Labour Court/Industrial Tribunal exercises power under Page 17 Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 43. Further, from paragraph-38.5, it would be evident that the cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the Page 18 employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 44. Further, from paragraph-38.6, it would be evident that in a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are 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 blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply 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 advantageous position vis-(cid:224)-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. v. Employees. Page 19 45. It is, thus, evident that the guidelines as under para-38 of aforesaid judgment, according to the considered view of this Court, is in two parts, first part deals with the part of pleading to be made by the concerned workman of having not gainfully employed, however, if the learned labour court or the industrial tribunal is exercising the power conferred under Section 11-A of the Act, 1947 and if the punishment has been found to be disproportionate to the misconduct found proved, then the discretion is upon the adjudicator not to award full back wages. But, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 46. Likewise, para-38.5 also stipulates three eventualities of issuing a direction passing an award on back wages if the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. 47. This Court, on the basis of aforesaid settled legal proposition is adverting to the factual aspect of the present case and has found herein that the disciplinary authority has passed an order of dismissal from service against the respondent/writ petitioner but Page 20 subsequently, although on the basis of the order passed by this Court dated 27.02.2021 in W.P.(S) No.3945 of 2012 by which matter was remitted back to the appellate authority to decide the appeal on merits, the appellate authority has modified the order of punishment of dismissal from the service to that of withholding two annual increments, but simultaneously the authority concern has passed an order that the writ-petitioner will not be entitled for back wages for aforesaid period. 48. This Court is of the view that the appellate authority has taken into consideration the propriety of the order of dismissal and going through the quantum, judging it from its proportionality with the offence committed, has come to the conclusion that the order of punishment of dismissal cannot be said commensurate with the offence committed and as such the punishment of dismissal has been reversed to that of withholding of two annual increments. 49. The question herein is that when the appellate authority has taken decision on the quantum of the punishment since, has come to the conclusion that the punishment of dismissal is not proportionate in comparison to that of the nature of offence. Hence, the order passed by the disciplinary authority inflicting the punishment of dismissal since has been held to be improper which means that if the punishment of withholding of two annual increments would have been inflicted at the inception instead of inflicting the punishment of Page 21 dismissal, then the writ-petitioner would have been in a position to discharge his duty. Therefore, the writ-petitioner has been deprived from discharging his duty due to the improper order of dismissal from service passed by the disciplinary authority. 50. Thus, on the basis of the aforesaid factual aspects and settled legal proposition as laid down by the Hon’ble Apex Court in the case of Union of India vs. K. V. Jankiraman and in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (Supra), this Court is of the considered view that disciplinary authority since has taken a decision of the inflicting the punishment of dismissal from service by modifying it to that of withholding of two annual increments, which itself suggests that it is not the case of the appellants-State that the writ-petitioner has intentionally not discharged his duty rather, he has been deprived to discharge his duty and in that view of the matter the principle of “no work no pay” will not be applicable in the facts and circumstances of the case. 51. This Court after having discussed the aforesaid aspect of the matter based upon the judgment rendered by the Hon’ble Apex Court in the case of Union of India vs. K. V. Jankiraman, and Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (Supra) and coming to the order impugned passed by the learned Single Judge has found that the learned Single Judge Page 22 has taken into consideration the aforesaid aspects of the matter, therefore, this Court is of the view that the order/judgment passed by the learned Single Judge suffers no error. 52. Accordingly, this Court is of the view that the instant appeal deserves to be dismissed. 53. In consequence thereof, the instant appeal stands dismissed. 54. Pending interlocutory application(s), if any, also stands dismissed. (Sujit Narayan Prasad, A.C.J.) (Arun Kumar Rai, J.) Umesh/-A.F.R. Page 23