In cases of wrongful termination, reinstatement with continuity of service and back wages is the normal rule, subject to various considerations and burden of proof on the employer.

ORDER :

Heard learned counsel for the petitioner and learned counsel for the respondents.

2. The petitioner, in this writ application, has prayed to quash the part of the order dated 29.10.2021, whereby 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. Further, a prayer has been made to direct the respondents to pay the back wages for the period from 02.02.2010 to 29.10.2021.

3. The petitioner 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. 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. 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 a non-speaking order dated 30.12.2010.

4. Aggrieve by both these orders, the petitioner approached this Court by filing a writ petition being W.P. (S) No. 3945 of 2012. The aforesaid writ petitioner was disposed of on 27.02.2021. This Court did not interfere with the punishment order, but had set aside the appellate order and remitted the matter back to the Appellate Authority to decide the appeal on merits after assigning reasons. The Appellate Authority in compliance with the order passed by this Court, modified the order of punishment. The punishment imposed upon the petitioner by the Appellate Authority is stoppage of two annual increments. Further, 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’. This part of the order is under challenge in this writ application.

5. Counsel for the petitioner submits that admittedly for no fault of the petitioner, the petitioner was kept out of service. The order of the Appellate Authority modifying the order of punishment from dismissal to stoppage of two annual increments strengthen his case that he was wrongly dismissed from service. When an employee is wrongly dismissed by the employer and he is reinstated, he is entitled to get the back wages.

6. Counsel appearing on behalf of the respondents submits that as the petitioner was out of service, it was decided by the Appellate Authority that he is not entitled for any back wages for the period he was out of service.

7. The facts are admitted in this case. The petitioner was dismissed pursuant to an order passed in the departmental proceeding on 02.02.2010. His departmental appeal was allowed on 29.10.2021, whereby he was reinstated and punishment was scaled down to that of stoppage of two annual increments. An order was passed that he will not be paid back wages for the intervening period on the principle of ‘no work no pay’.

8. The principle of payment of back wages has been laid down by the Hon’ble Supreme Court in catena of judgments. It is not necessary to deal with each and every judgments on the aforesaid issue. Suffice it would be to rely upon the judgment passed by the Hon’ble Supreme Court in the case of “Deepali Gundu Surwase -versus-Kranti Junior Adhyapak Mahavidyalaya, reported in (2013) 10 SCC 324.” In para-38.1, the Hon’ble Supreme Court in the case of “Deepali Gundu Surwase”(supra) has laid down the principles that in case of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. It is necessary to quote para-38.1, 38.2 & 38.3 of the a