High Court

Heard the petitioner in person and Ms. Pushpila Bisht, learned Counsel for the opposite parties. By means of this petition, the petitioner has challenged the order dated 15.04.2024 passed by the Central Administrative Tribunal, Application No. 332/000261/2018 and another order dated 30.05.2024 passed in Review Application No. 332/00028/2024 arising out of the aforesaid OA. in Original Lucknow The facts of the case in brief are that the petitioner was appointed as Trained Graduate Teacher, Sanskrit at Kendriya Vidyalay, Surat. While working there, she submitted a complaint of sexual harassment against the then Principal. The complaint was enquired by the opposite parties but was not found to be tenable. The petitioner did not accept the report, and even prior to it, had approached the National Commission for Women and National Human Rights Commission which initiated some proceedings and some orders were also passed. However, on being asked, the petitioner appearing in person very fairly submitted that nothing turned out of the said proceedings. She was then transferred to Kendriya Vidyalay, Jhanor vide order dated 13.12.2000. She is said to have been relieved on 22.12.2000 which according to her was served upon her on 02.01.2001. Be that as it may, she did not join at the transferred place. She felt aggrieved by the fact that she had been subjected to sexual harassment and some orders of interlocutory nature had been passed by the aforesaid Commission's directing the opposite parties to consider the complaint in the light of judgment of Hon'ble the Supreme Court in the case of Vishaka & others Vs. State of Rajasthan & other; (1997) 6 SCC 241, which was never done. Vide order dated 08.02.2001 passed by the concerned opposite party, it was held that she had lost her lien on the post in view of Article 81(d)(3) of the Education Code applicable to her, provisionally, and ultimately, on 28.08.2001, she was removed from service w.e.f 23.12.2000. An appeal against the said order was dismissed which led to the filing of an O.A. bearing no. 152 of 2003 by the petitioner challenging her removal order dated 28.08.2001 and the appellate order dated 17.06.2002. The said O.A. was allowed on 17.03.2009 in part and the impugned orders were set aside with a further direction to the respondent to re-instate the petitioner forthwith, and to take a decision regarding the intervening period i.e. from the date of termination till the date of reinstatement, in accordance with law. This order, however, did not preclude the respondent therein to initiate proceedings from the stage of affording a reasonable opportunity to the applicant (petitioner herein) on preferring her reply to the show cause notice, and thereafter, to take a decision in accordance with law. As the said judgment of the Tribunal was not complied, contempt proceedings were initiated bearing no. 84 of 2009. The opposite parties herein challenged the judgment dated 17.03.2009 passed by the Tribunal by means of Writ Petition No. 1591 (S/B) of 2009 which was dismissed on 15.03.2011. The said judgment is on record. Thereafter, on 13.07.2011, an Office Memo was issued for re-instating the petitioner in compliance of the judgment of Tribunal dated 17.03.2009. After the order of reinstatement, the petitioner joined her service on 29.07.2011. Thereafter on 18.11.2011, departmental proceedings were initiated under Rule 14 of the CCS (CCA) Rules, 1965 regarding disobedience of the orders of higher authorities during the year 2000-2001 by not joining the duties at Kendriya Vidyalay NTPC, Jhanor where she had been transferred in public interest and remained absent from duty from 23.12.2000 without leave being sanctioned, and, that she, during the year 2000-2001, dodged receiving official communication sent by K.V.S. Regional Office of Gandhinagar during the period of unauthorized absence from duty. On 31.08.2012, an order was passed by the concerned opposite party regarding the intervening period in pursuance of the judgment dated 17.03.2009 referred hereinabove, and it was decided that "intervening period i.e. from the date of removal of the petitioner till the date of her reinstatement (23.12.2000 to 27.07.2011) will be treated as leave of kind due to her, but she will not be entitled for back wages for the intervening period, however, the intervening period will be counted for other service benefits." The petitioner continued in service and ultimately retired on 31.03.2024. In the interregnum, she challenged the order dated 31.08.2012 by means of O.A. No. 60 of 2013 seeking several reliefs which were as under:- "(1.) Direct the opposite parties to quash the order dated 18.11.2011, order dated 16.07.2012 and order dated 31.08.2012 in so far as it provides the applicant would not be entitled for back wages for the intervening period and the notice published in Hindi daily 'Dainik Jagran' on 30.01.2013 (contained in annexure no. 17, 26, 28 & 36 to the original application) after summoning their original from the opposite parties. (Deleted as per order dated 31.08.2012). (2.) Direct the opposite parties not to press any order in pursuance to the notice published in Hindi daily ' Dainik Jagaran' on 30.01.2013. (3.) Direct the opposite parties to pay to the applicant back wages for the period the applicant was illegally kept out of service. (4.) Direct the opposite parties to compute and pay to the applicant salary, after taking into account the services for the period 23.12.2000 to 27.07.2012." Subsequently, she did not press the relief so far as challenge to the order dated 31.08.2012 was concerned, however, in some subsequent proceedings she came up to the High Court wherein she was permitted to challenge the same, and accordingly, she filed a separate O.A., out of which this writ petition has arisen. It is the said O.A. bearing no. 332/000261/2018 which has been disposed of on 15.04.2004 and the review application has also been decided on 30.05.2024. The reliefs sought in the aforesaid O.A. were as follows:- "(a) To quash the impugned order dated 31.08.2012 so far as it relates to withholding the back wages to the applicant for the intervening period of 23.12.2000 to 27.07.2011. (b) Direct the opposite parties to pay the back wages to the applicant for the period of 23.12.2000 to 27.07.2011 with 18% interest along with other consequential and monetary benefits. (c) Any other suitable order or direction which the Hon'ble Tribunal may deem fit just and proper under facts and circumstances of the case be passed. (d) Allow the application with cost." Now, the contention of the petitioner appearing in person is that she remained out of service from 13.12.2000 to 27.07.2011 on account of an illegal and malafide transfer order which was actuated only on account of sexual harassment claim having been submitted by her against the then Principal, which in fact was not enquired into in terms of judgment of Hon'ble the Supreme Court in the case of Vishaka (supra) in spite of several orders by the National Commission for Women and the National Human Rights Commission, therefore, the principle of No Work, No Pay does not apply to the facts of this case, as, it is not as if she was not willing to work, but she was subjected to a malafide transfer, therefore, she could not work at the transferred place. She has not disputed the fact that she did not join at the transferred place. On being asked as to whether she submitted any leave application, she submitted that several informations were sent to the concerned officials regarding her medical condition but nothing happened. Be that as it may, we find that there is no such relief before the Central Administrative Tribunal for treating the said period of service as leave with pay with reference to any rule which may be applicable. In fact, on being asked as to whether there is any rule applicable under which her absence could be regularized by grant of leave for such a long period of almost eleven years, she was unable to place any such rule. Having heard learned Counsel for the parties and perused the record, what we find is that once the order of removal dated 28.08.2001 was set aside by the Tribunal vide judgment dated 17.03.2009 passed in O.A. No. 152 of 2003, then there is no way that the opposite parties could have delayed her reinstatement consequent to the said judgment, till 13.07.2011 when they passed an order of her reinstatement. On being confronted, Ms. Pushpila Bisht, learned Counsel for the opposite parties very fairly submitted that the reinstatement should have done w.e.f. 17.03.2009 and she could not deny the fact that during this period i.e. the period the judgment of the Tribunal dated 17.03.2009 was not complied and she was not reinstated, she would be entitled to benefit of all the emoluments which she would have got, but for non-compliance of the said judgment. We find that this aspect of the matter has not been considered by the Tribunal while disposing of the O.A. filed by the petitioner, in fact, the Tribunal erred to this extent. In view of what has been discussed hereinabove, we are of the opinion that so far as the period 17.03.2009 till 27.07.2011 is concerned, it is the opposite parties who denied an opportunity to the petitioner to work, therefore, there is no application of principle of No Work, No Pay. Accordingly, we hold that the petitioner is entitled to full emoluments which she would have got, had she been reinstated w.e.f. 17.03.2009, for the period aforesaid i.e. the date of judgment by the Tribunal. However, for the period prior to 17.03.2009, we have gone through the order dated 31.08.2012, as also, the impugned judgment of the Tribunal, and as already noticed hereinabove, no such rule has been placed before us under which leave for such a period could have been sanctioned with pay. As regards, the contention of the petitioner that she was subjected to a malafide transfer, she never challenged the transfer order, may be because of lack of proper knowledge about legal procedure and her rights in this regard, but the fact is that in the absence of any such challenge to the transfer order which was passed on 13.12.2000, she cannot now say that she had a justification for not joining at the transferred place, especially when, we do not find any such final order having been passed by the National Commission for Women or the National Human Rights Commission wherein the complaints may have been found to be correct or any direction may have been issued for action against the then Principal or any other higher authority for any inaction. In the totality of facts and circumstances of the case, except for providing relief to the petitioner for the period aforesaid, we see no reason to interfere with the remaining part of the order dated 31.08.2012 and the orders impugned herein passed by the Tribunal. Considering the fact that the lapse so far as the aforesaid period after passing of the judgment dated 17.03.2009 by the Tribunal is entirely on the part of the opposite parties, and on account of which, financial loss has been caused to the petitioner apart from trauma etc., we provide that interest @ 8 % per annum shall be payable on the emoluments for the aforesaid period i.e. 17.03.2009 to 27.07.2011, till they are actually paid to her. For the reasons given hereinabove, the judgment of the Tribunal dated 15.04.2024 passed in O.A. No. 332/000261/2018 stands modified in terms of what we have stated hereinabove. The order passed on the Review Application shall be read and understood accordingly. The order dated 31.08.2012 is set aside and quashed to the extent it denies the aforesaid benefit. It is informed by Ms. Pushpila Bisht, learned Counsel appearing for the opposite parties that Original Application No. 332/00195/2025 has been filed by the petitioner separately before the Tribunal seeking notional increments from the date of her removal from service till reinstatement and consequent fixation of pay and pension. She is already getting the post retiral dues. We express no opinion on the issues pending consideration before the Tribunal. We may, at this point, mention that so far as the disciplinary proceedings initiated against the petitioner on 18.11.2011 is concerned, after her reinstatement, no final orders have been passed and she has retired on 31.03.2024. Learned Counsel for the opposite parties says that she has absolutely no instructions to the effect that any such proceedings are still pending or could be treated to be pending under any rule after her retirement. This judgment shall be complied by the opposite parties no. 2 to 4 positively within two months from the date a certified copy of this order is submitted. The petition is allowed but only in part. Order Date :- 12.8.2025 Lokesh Kumar [Manjive Shukla, J.] [Rajan Roy, J.]

Heard the petitioner in person and Ms. Pushpila Bisht, learned Counsel for the opposite parties. By means of this petition, the petitioner has challenged the order dated 15.04.2024 passed by the Central Administrative Tribunal, Application No. 332/000261/2018 and another order dated 30.05.2024 passed in Review Application No. 332/00028/2024 arising out of the aforesaid OA. in Original Lucknow The facts of the case in brief are that the petitioner was appointed as Trained Graduate Teacher, Sanskrit at Kendriya Vidyalay, Surat. While working there, she submitted a complaint of sexual harassment against the then Principal. The complaint was enquired by the opposite parties but was not found to be tenable. The petitioner did not accept the report, and even prior to it, had approached the National Commission for Women and National Human Rights Commission which initiated some proceedings and some orders were also passed. However, on being asked, the petitioner appearing in person very fairly submitted that nothing turned out of the said proceedings. She was then transferred to Kendriya Vidyalay, Jhanor vide order dated 13.12.2000. She is said to have been relieved on 22.12.2000 which according to her was served upon her on 02.01.2001. Be that as it may, she did not join at the transferred place. She felt aggrieved by the fact that she had been subjected to sexual harassment and some orders of interlocutory nature had been passed by the aforesaid Commission's directing the opposite parties to consider the complaint in the light of judgment of Hon'ble the Supreme Court in the case of Vishaka & others Vs. State of Rajasthan & other; (1997) 6 SCC 241, which was never done. Vide order dated 08.02.2001 passed by the concerned opposite party, it was held that she had lost her lien on the post in view of Article 81(d)(3) of the Education Code applicable to her, provisionally, and ultimately, on 28.08.2001, she was removed from service w.e.f 23.12.2000. An appeal against the said order was dismissed which led to the filing of an O.A. bearing no. 152 of 2003 by the petitioner challenging her removal order dated 28.08.2001 and the appellate order dated 17.06.2002. The said O.A. was allowed on 17.03.2009 in part and the impugned orders were set aside with a further direction to the respondent to re-instate the petitioner forthwith, and to take a decision regarding the intervening period i.e. from the date of termination till the date of reinstatement, in accordance with law. This order, however, did not preclude the respondent therein to initiate proceedings from the stage of affording a reasonable opportunity to the applicant (petitioner herein) on preferring her reply to the show cause notice, and thereafter, to take a decision in accordance with law. As the said judgment of the Tribunal was not complied, contempt proceedings were initiated bearing no. 84 of 2009. The opposite parties herein challenged the judgment dated 17.03.2009 passed by the Tribunal by means of Writ Petition No. 1591 (S/B) of 2009 which was dismissed on 15.03.2011. The said judgment is on record. Thereafter, on 13.07.2011, an Office Memo was issued for re-instating the petitioner in compliance of the judgment of Tribunal dated 17.03.2009. After the order of reinstatement, the petitioner joined her service on 29.07.2011. Thereafter on 18.11.2011, departmental proceedings were initiated under Rule 14 of the CCS (CCA) Rules, 1965 regarding disobedience of the orders of higher authorities during the year 2000-2001 by not joining the duties at Kendriya Vidyalay NTPC, Jhanor where she had been transferred in public interest and remained absent from duty from 23.12.2000 without leave being sanctioned, and, that she, during the year 2000-2001, dodged receiving official communication sent by K.V.S. Regional Office of Gandhinagar during the period of unauthorized absence from duty. On 31.08.2012, an order was passed by the concerned opposite party regarding the intervening period in pursuance of the judgment dated 17.03.2009 referred hereinabove, and it was decided that "intervening period i.e. from the date of removal of the petitioner till the date of her reinstatement (23.12.2000 to 27.07.2011) will be treated as leave of kind due to her, but she will not be entitled for back wages for the intervening period, however, the intervening period will be counted for other service benefits." The petitioner continued in service and ultimately retired on 31.03.2024. In the interregnum, she challenged the order dated 31.08.2012 by means of O.A. No. 60 of 2013 seeking several reliefs which were as under:- "(1.) Direct the opposite parties to quash the order dated 18.11.2011, order dated 16.07.2012 and order dated 31.08.2012 in so far as it provides the applicant would not be entitled for back wages for the intervening period and the notice published in Hindi daily 'Dainik Jagran' on 30.01.2013 (contained in annexure no. 17, 26, 28 & 36 to the original application) after summoning their original from the opposite parties. (Deleted as per order dated 31.08.2012). (2.) Direct the opposite parties not to press any order in pursuance to the notice published in Hindi daily ' Dainik Jagaran' on 30.01.2013. (3.) Direct the opposite parties to pay to the applicant back wages for the period the applicant was illegally kept out of service. (4.) Direct the opposite parties to compute and pay to the applicant salary, after taking into account the services for the period 23.12.2000 to 27.07.2012." Subsequently, she did not press the relief so far as challenge to the order dated 31.08.2012 was concerned, however, in some subsequent proceedings she came up to the High Court wherein she was permitted to challenge the same, and accordingly, she filed a separate O.A., out of which this writ petition has arisen. It is the said O.A. bearing no. 332/000261/2018 which has been disposed of on 15.04.2004 and the review application has also been decided on 30.05.2024. The reliefs sought in the aforesaid O.A. were as follows:- "(a) To quash the impugned order dated 31.08.2012 so far as it relates to withholding the back wages to the applicant for the intervening period of 23.12.2000 to 27.07.2011. (b) Direct the opposite parties to pay the back wages to the applicant for the period of 23.12.2000 to 27.07.2011 with 18% interest along with other consequential and monetary benefits. (c) Any other suitable order or direction which the Hon'ble Tribunal may deem fit just and proper under facts and circumstances of the case be passed. (d) Allow the application with cost." Now, the contention of the petitioner appearing in person is that she remained out of service from 13.12.2000 to 27.07.2011 on account of an illegal and malafide transfer order which was actuated only on account of sexual harassment claim having been submitted by her against the then Principal, which in fact was not enquired into in terms of judgment of Hon'ble the Supreme Court in the case of Vishaka (supra) in spite of several orders by the National Commission for Women and the National Human Rights Commission, therefore, the principle of No Work, No Pay does not apply to the facts of this case, as, it is not as if she was not willing to work, but she was subjected to a malafide transfer, therefore, she could not work at the transferred place. She has not disputed the fact that she did not join at the transferred place. On being asked as to whether she submitted any leave application, she submitted that several informations were sent to the concerned officials regarding her medical condition but nothing happened. Be that as it may, we find that there is no such relief before the Central Administrative Tribunal for treating the said period of service as leave with pay with reference to any rule which may be applicable. In fact, on being asked as to whether there is any rule applicable under which her absence could be regularized by grant of leave for such a long period of almost eleven years, she was unable to place any such rule. Having heard learned Counsel for the parties and perused the record, what we find is that once the order of removal dated 28.08.2001 was set aside by the Tribunal vide judgment dated 17.03.2009 passed in O.A. No. 152 of 2003, then there is no way that the opposite parties could have delayed her reinstatement consequent to the said judgment, till 13.07.2011 when they passed an order of her reinstatement. On being confronted, Ms. Pushpila Bisht, learned Counsel for the opposite parties very fairly submitted that the reinstatement should have done w.e.f. 17.03.2009 and she could not deny the fact that during this period i.e. the period the judgment of the Tribunal dated 17.03.2009 was not complied and she was not reinstated, she would be entitled to benefit of all the emoluments which she would have got, but for non-compliance of the said judgment. We find that this aspect of the matter has not been considered by the Tribunal while disposing of the O.A. filed by the petitioner, in fact, the Tribunal erred to this extent. In view of what has been discussed hereinabove, we are of the opinion that so far as the period 17.03.2009 till 27.07.2011 is concerned, it is the opposite parties who denied an opportunity to the petitioner to work, therefore, there is no application of principle of No Work, No Pay. Accordingly, we hold that the petitioner is entitled to full emoluments which she would have got, had she been reinstated w.e.f. 17.03.2009, for the period aforesaid i.e. the date of judgment by the Tribunal. However, for the period prior to 17.03.2009, we have gone through the order dated 31.08.2012, as also, the impugned judgment of the Tribunal, and as already noticed hereinabove, no such rule has been placed before us under which leave for such a period could have been sanctioned with pay. As regards, the contention of the petitioner that she was subjected to a malafide transfer, she never challenged the transfer order, may be because of lack of proper knowledge about legal procedure and her rights in this regard, but the fact is that in the absence of any such challenge to the transfer order which was passed on 13.12.2000, she cannot now say that she had a justification for not joining at the transferred place, especially when, we do not find any such final order having been passed by the National Commission for Women or the National Human Rights Commission wherein the complaints may have been found to be correct or any direction may have been issued for action against the then Principal or any other higher authority for any inaction. In the totality of facts and circumstances of the case, except for providing relief to the petitioner for the period aforesaid, we see no reason to interfere with the remaining part of the order dated 31.08.2012 and the orders impugned herein passed by the Tribunal. Considering the fact that the lapse so far as the aforesaid period after passing of the judgment dated 17.03.2009 by the Tribunal is entirely on the part of the opposite parties, and on account of which, financial loss has been caused to the petitioner apart from trauma etc., we provide that interest @ 8 % per annum shall be payable on the emoluments for the aforesaid period i.e. 17.03.2009 to 27.07.2011, till they are actually paid to her. For the reasons given hereinabove, the judgment of the Tribunal dated 15.04.2024 passed in O.A. No. 332/000261/2018 stands modified in terms of what we have stated hereinabove. The order passed on the Review Application shall be read and understood accordingly. The order dated 31.08.2012 is set aside and quashed to the extent it denies the aforesaid benefit. It is informed by Ms. Pushpila Bisht, learned Counsel appearing for the opposite parties that Original Application No. 332/00195/2025 has been filed by the petitioner separately before the Tribunal seeking notional increments from the date of her removal from service till reinstatement and consequent fixation of pay and pension. She is already getting the post retiral dues. We express no opinion on the issues pending consideration before the Tribunal. We may, at this point, mention that so far as the disciplinary proceedings initiated against the petitioner on 18.11.2011 is concerned, after her reinstatement, no final orders have been passed and she has retired on 31.03.2024. Learned Counsel for the opposite parties says that she has absolutely no instructions to the effect that any such proceedings are still pending or could be treated to be pending under any rule after her retirement. This judgment shall be complied by the opposite parties no. 2 to 4 positively within two months from the date a certified copy of this order is submitted. The petition is allowed but only in part. Order Date :- 12.8.2025 Lokesh Kumar [Manjive Shukla, J.] [Rajan Roy, J.]