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IN THE HIGH COURT OF JUDICATURE AT PATNA
ANIL KUMAR SINHA, J.
Surendra Jha S/o Late Yugal Kishore Jha – Appellant
Versus
The State of Bihar – Respondent
Civil Writ Jurisdiction Case No. 12211 of 2017
Decided On : 14-10-2025
Service Law – Back Wages – Reversal of order of compulsory retirement – Ordinarily, a workman, whose service has been illegally terminated, would be entitled to full back wages except to the extent he was gainfully employed during enforced idleness – That is normal rule – Any other view would be a premium on unwarranted litigative activity of employer – If employer terminates service illegally and termination is motivated, to resist workman's demand for revision of wages, termination may well amount to unfair labour practice – In such circumstances, reinstatement being normal rule, it should be followed with full back wages – Once order of compulsory retirement was set aside, alleged misconduct could not be basis to deny consequential benefits, particularly in absence of a lawful departmental enquiry establishing such misconduct – Petitioner had rendered over 28 years of service, received time bound promotion and pay revision – To treat petitioner as a temporary employee for denying back wages is arbitrary – Authority has not produced any material to show that petitioner was gainfully employed during period of his compulsory retirement – Plea of double payment is not tenable as employee, who was illegally kept out of service, cannot be penalized for employer's own act of termination – Impugned orders are liable to be set aside – BIADA directed to pay 70% back wages to petitioner – Writ Application allowed. (Paras 22, 25 to 31)
| Table of Content |
|---|
| 1. petitioner's employment status and history. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. arguments against denial of back wages. (Para 9 , 10 , 11 , 12 , 14) |
| 3. court's findings on the petitioner's claim. (Para 18 , 21 , 24 , 25 , 26 , 27) |
| 4. supreme court's stance on back wages entitlement. (Para 22 , 23) |
| 5. conclusion and directive for back wages payment. (Para 28 , 29 , 30 , 31 , 32) |
JUDGMENT :
ANIL KUMAR SINHA, J.
1. The present writ application has been filed for quashing the order, dated 27.02.2017, passed by the Principal Secretary, Department of Industries, Government of Bihar, Patna, in Appeal No. 01/2015, whereby the appeal filed by the petitioner, challenging the rejection of his claim for back wages, has been dismissed. The petitioner has further prayed for quashing the order, contained in Memo No. 6861, dated 05.12.2014, issued by the Managing Director, Bihar Industrial Area Development Authority, rejecting his claim for back wages for the period from 01.12.2007 to 03.07.2014, and also for issuance of a direction to the respondents to release full back wages for the said period along with penal interest.
2. The case of the petitioner, in brief, is that the petitione was appointed as Peon on 07.05.1979 in the erstwhile North Bihar Industrial Area Development Authority. After formation of Bihar Industrial Area Development Authority (hereinafter referred to as ‘the BIADA’) in the year 2003, the services of the petitioner was transferred to the newly formed Authority.
3. On 27.09.2007, the petitioner was served with a charge memo alleging unauthorized absence from duty, failure to remain available on mobile phone and not responding to the calls of his superior officers.
4. In his reply, dated 03.10.2007, the petitioner explained that during the period of his absence, he was present at Ram Nagar and had also received salary for that period. He further stated that being a low-paid employee, he could not afford a mobile phone and had provided his landline number of his home situated at Muzaffarpur to his superiors, while also pointing out the impracticability of making daily long-distance calls.
5. Despite the explanation, the Managing Director, BIADA, vide Memo No. 269, dated 10.11.2007, imposed punishment of compulsory retirement to the petitioner with effect from 30.11.2007. The petitioner challenged the order of punishment of compulsory retirement in C.W.J.C. No. 9420 of 2008, which was allowed by this Court on 18.06.2014 and the order of compulsory retirement was set aside. It was further directed to the respondents to resolve the grievance of the petitioner for payment of back wages in terms of the order, dated 05.05.2009, passed in CWJC No. 11196 of 2007, wherein reliance had been placed in the case of Novartis India Ltd. v. State of West Bengal, (2009) 3 SCC 124.
6. Pursuant to the order, dated 18.06.20214, passed in CWJC No. 9420 of 2008, the petitioner submitted a representation on 03.11.2014 seeking payment of back wages for the period of his compulsory retirement, i.e., from 01.12.2007 to 03.07.2014. However, the Managing Director, BIADA, vide Memo No. 6861, dated 05.12.2014, rejected the claim of the petitioner for grant of back wages on the grounds, inter alia, that (i) the petitioner was only a temporary employee; (ii) he had exhibited indiscipline; (iii) he was also in the habit of remaining on unauthorized absence; (iv) he had not averred anything regarding his gainful employment; and (v) the work during the absence of the petitioner, was performed by others who were duly paid and the authority could not be compelled to make double payment for the same period without any work performed by the petitioner.
7. The petitioner, thereafter, challenged the order rejecting his claim of back wages in CWJC No. 2129 of 2015, which was disposed of on 03.02.2015, granting him liberty to pursue the matter before the appellate authority, with further direction to the authority to examine the whole issue afresh.
8. In p
An employee unlawfully dismissed is generally entitled to back wages unless the employer proves gainful employment during the relevant period.
Compulsory retirement set aside for gross violation of natural justice entitles employee to full back wages for that period, despite subsequent fresh proceeding imposing minor censure punishment.
Reinstatement after wrongful termination entitles an employee to back wages unless the employer proves otherwise, even if a minor penalty like censure is imposed.
In cases of wrongful termination, reinstatement with back wages is the normal rule unless the employer proves the employee was gainfully employed during the termination period.
In cases of wrongful termination, the standard remedy is reinstatement with back wages unless the employer proves the employee's concurrent gainful employment during the termination period.
The burden of proof of the employee's unemployment during the interregnum period lies with the employee, and the initial onus is on the employee to plead and prove that he was not gainfully employed.....
The employer bears the burden of proving that the worker was gainfully employed during the dispute period to deny back wages; failure to provide evidence supports the worker's claim to back wages.
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