Airport Authority of India & Ors. Vs. Shambhu Nath Das @ S.N. Das
 INSC 947 (16
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO................./2008 (arising out
of S.L.P.(Civil) No.10452/2007) Airport Authority of India & Ors.
...Appellants Shambhu Nath Das @ S.N.Das ...
HARJIT SINGH BEDI,J.
1. Leave granted.
2. This appeal arises out of the
3. The respondent, Shambhu Nath
Das, a resident of Kolkata, who was posted as an Assistant Engineer with the
appellant authority at Kolkata was transferred to Delhi. He reported for duty
at Delhi and served for 7 2 days and thereafter took leave for 18 days from
26th March 1985 to 12th April 1985 on account of his grandmother's illness. He
did not rejoin duty thereafter but made several applications for extension of
leave on medical grounds. The appellant accordingly directed him, vide order
dated 12th August 1985, to appear before a Medical Board at Kolkata at 11 a.m.
on that day. The Medical Board in its report opined that the respondent was
physically fit and, therefore, capable of resuming duty. This information was
also conveyed to the respondent vide letter dated 9th September 1985 and he was
advised to report for duty immediately failing which action would be taken
against him as per the rules.
Despite this warning, however, the
respondent did not report for duty. A Memorandum dated 17th October 1985 was
also addressed to the respondent calling upon him yet again to resume duty on
or before 30th October 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 3 from 1st November 1985. The respondent,
however, still did not report for duty but challenged the memorandum dated 17th
October 1985 by filing Writ Petition No. 5715 (W) of 1986 which was ultimately
disposed of by a Single Judge of the Calcutta High Court vide order dated 10th
November 1995 with a direction to the appellant to allow the respondent to
resume duty but with a further direction that he would not be entitled to any
arrears of pay and allowances or any other service benefit for the period of
his absence. The respondent, however, still did not join duty in terms of the order
dated 10th November 1995 but challenged the same by filing Writ Appeal
No.3687/1995 before the Division Bench. The Division Bench in its order dated
9th August 1996 set aside the order dated 10th November 1995 and remanded the
Writ Petition to the learned Single Judge with a direction that a reasoned
order be passed after hearing the contesting parties. The matter was,
accordingly, re-heard by the learned Single Judge and it was observed that as
the writ petitioner (now respondent) 4 had overstayed his leave, the appellant
authority would have been justified in dismissing him from service but after
having observed as such, gave the following directions on 13th August 1999:
"The respondent Airports
Authority of India is directed to reinstate the writ petitioner in service at
Delhi or any other Airport where a suitable post is lying vacant within six
weeks from the date of communication of this order. In so far 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 during the period from 17th October 1985 till
10th November 1985."
4. A subsequent order of the
learned Single Judge vide order dated 31st August 1999 modified the order of
13th August 1999, to the extent that the period of consideration of salary etc.
was to be limited to "the period from 17th October 1985 till 10th November
1995". The appellant accepted the judgment of the learned Single Judge and
allowed the respondent 5 to join duty with effect from 1st November 1999
leaving the issue of payment of back wages to be decided subsequently. The
appellant thereafter gave a personal hearing to the respondent on 31st January
2002 and passed an order dated 14th May 2002 holding that the period of
unauthorized 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 14th May 2002 was once again challenged by the respondent by filing
Writ Petition No. 12321-W/2002 before the Calcutta High Court claiming,
inter-alia, back wages for the entire period of his unauthorized absence.
This Writ Petition was also
allowed by the learned Single Judge in his order dated 7th August 2003 and a
direction was issued that the question of payment of back wages be decided
afresh by the appellant. The matter was once again taken up by the appellant
and the plea for back wages was yet again denied by order dated 2nd/5th January
2004. This order was challenged by the respondent by way of Writ Petition
No.4283 (W) of 2004 6 which was, however, dismissed by a learned Single Judge
of the High Court on 15th April 2004 observing as under:
"After hearing the learned
counsel, appearing for the parties, this court is of the view that the petition
needs to be thrown in limine for the following reasons:
(a) By the order dated 13th August
1999, this court directed that "in so far 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".
(b) The right of the petitioner,
if any, has crystallized in the order dated 13th August 1999. He cannot be
allowed to reopen the matter nor is he at liberty to advance new grounds of his
At the highest he is entitled to
execute the order dated 13th August 1999 as corrected by the order dated 31st
(c) In the order under challenge
dated 2nd/5th January, 2004, the authorities have recorded that the petitioner
could not give nay justification in order to support his clam for back wages.
The authority concerned has recorded in his order that there is no such rule
which permits such payment. The order dated 13th August 1999 directed the
authority concerned to sympathetically consider the question of payment of back
wages if it was 7 permissible under the Rule. When factually there is no
dispute between the parties that the rules do not permit the payment of any
such back wages, the question came to an end then and there.
(d) The submission advanced by Mr.
Basu, the learned Senior Advocate, for the petitioner, that if the rules are
not there then the absence of Rule cannot militate against the claim of the
petitioner, in any view, cannot be entertained because that would amount to
sitting in appeal over the order dated 13th August, 1999 which I am unable to
(e) The submission that the Rule
31, and theory of `dies-non' has no application to the facts of this case and,
in my view, self-annihilating because if this submissions were given effect to
then all the benefits given to the petitioner under the order dated 14th May
2002 have to be recalled. He cannot blow hot and cold.
(f) It is submitted that the
petitioner is not aggrieved by the rest of the order dated 14th May 2002 and
the challenge is restricted to sub-para (i). Sub-Para (i) is based on he same
principle on which the sub-paras (ii) to (vi) are based. The petitioner is
happy with the directions contained in sub-para (i) Where on (vi) of the order
dated 14th May 2002 is the same.
In that view of the matter, the
approach of the petitioner, accordingly to this court, is anything but
Accordingly, this petition is
dismissed with costs assessed at 200 G.Ms."
5. This order of the learned
Single Judge has been set aside by the Division Bench vide the impugned order
dated 21st March 2007 with the observations that the order of the High Court in
C.R.(W)No. 5715/1986 which had directed that the respondent be paid 50% of the
back wages for the period from 17th October, 1985 to 10th November, 1995 should
be complied with.
6. 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 of the Division Bench to grant him back wages from 17th October 1985
to 10th November 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 already been given to him as he had been
taken back in service despite having remained absent for 9 almost fifteen
years. 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 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 13th August, 1999 which had attained finality had directed as under:
(a) "in so far 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".
7. 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 17th October, 1985 to 10th November, 1995 which are far in excess of the
10 directions in the order dated 13th August 1999. We accordingly allow this
appeal set aside the order of the division bench and restore the order of the
learned Single Judge dated 15 April 2004.
8. The appeal is allowed in the
above terms. No order as to costs.
(TARUN CHATTERJEE )