An employee seeking back wages upon reinstatement must prove with evidence that they were not gainfully employed during the period of absence, and the burden then shifts to the employer to prove otherwise.

1. Order dated 18.03.2009 passed by the respondent No.5 is subject matter of challenge in this writ petition.

2. The facts in brief leading to the filing of this petition are that the petitioner was an employee of the Central Reserve Police Force (CRPF in short) and was working as Head Constable when he was placed under suspension by the respondents and subsequently compulsorily retired from the service under Section 11(1) of the CRPF Act. The penalty of compulsorily retirement imposed upon the petitioner was assailed by the petitioner in SWP No. 1891/2000, which was allowed by a Bench of this Court vide its order and judgment dated 08.10.2001. The order of compulsorily retirement was set aside and petitioner was held entitled to re-instatement. The Court, however, left it free to the respondents to pass a fresh order in accordance with law. The respondents assailed the order of Single Bench in LPASW No. 38/2002 and Division Bench of this Court vide its judgment dated 14.09.2007 dismissed the appeal and upheld the judgment of the Single Bench. The petitioner claims that the respondents even approached the Hon’ble Supreme Court by way of Special Leave Petition but the same was also dismissed by the Apex Court on 15.12.2008. With a view to seek implementation of the judgment passed by this Court and upheld upto Supreme Court, the petitioner filed contempt petition. The order of Single Bench was complied with by the respondent No.5, who vide his Order dated 18.03.2009 re-instated the petitioner w.e.f. 18.03.2009 and treated the period of his absence from the date of his compulsory retirement, i.e., 27.02.2000 to the date of reinstatement, i.e., 17.03.2009 as qualifying service for pensionary purpose, but did not allow any pay and allowance for the aforesaid period on the ground that during the said period the petitioner had not performed any duty.

3. The petitioner is primarily aggrieved of the last portion of the order impugned whereby he has been denied the pay and allowance for the period he remained out of service, i.e., from 27.02.2000 to 17.03.2009 and is, therefore, before this Court in the instant petition.

4. The petitioner has claimed writ prayed for on the ground that once the penalty of compulsorily retirement imposed upon the petitioner was set aside by the Court and the petitioner was held entitled to reinstatement, there was no reason or occasion for the respondents to deny him the pay and allowance for the period he remained out of service because of the lapse and illegality committed by the respondents. It is submitted that it is not a case where the petitioner had been offered to perform the duties and he failed to do so that the principle of “no work no pay” could be made applicable.

5. On the other hand, the respondents have filed their reply affidavit. The stand taken by the respondents is that the judgment dated 08.10.2001 passed in SWP No. 1891/2000 has been complied with by the respondents in letter and spirit in terms of the order dated 18.03.2009 impugned in this writ petition. It is stated that this Court while allowing the writ petition SWP No.1891/2000 had only directed the respondents to reinstate the petitioner without giving any direction for payment of wages. It is, thus, urged that the order of compulsory retirement of the petitioner was not set aside by the Court on merit but was on technical grounds, leaving it open to the respondents to hold a fresh inquiry and impose the penalty, which is commensurate to the alleged lapse/mis-conduct attributed to the petitioner.

6. Having heard learned counsel for the parties and perused the record, this Court is of the considered view that the petitioner in the instant case is not entitled to claim back wages upon her reinstatement as a matter of right. It is trite law that a workman cannot claim back wages upon his res-instatement by the Court as a matter of right. It depends upon the facts and circumstances of each case. In case an employee lays a cl