CIVIL APPEAL 12211 of 2017 on 7 May 1979

1. The State Of Bihar

2. The Chairman, Bihar Industrial Ara Development Authority, UdyogBhawan, East Gandhi Maidan, Patna. Bhawan, East Gandhi Maidan, Patna.

3. The Managing Director, Bihar Industrial Area Development Authority,Udyog Bhawan, East Gandhi Maidan, Patna Udyog Bhawan, East Gandhi Maidan, Patna

4. The Secretary, Bihar Industrial Area Development Authority, UdyogBhawan, East Gandhi Maidan, Patna Bhawan, East Gandhi Maidan, Patna

5. The Executive Director, Bihar Industrial Area Development Authority,Regional Office, Darbhanga. Regional Office, Darbhanga.

6. The Executive Director, Bihar Industrial Area Development Authority,Regional Office, Muzaffarpur. Regional Office, Muzaffarpur.

... ... Respondent/s

======================================================Appearance :For the Petitioner/s: Mr.Prashant SinhaFor the State : Mr.Abbas Haider, SC 6For the BIADA: Mr. Partha Gaurav======================================================

CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

JUDGMENT AND ORDER C.A.V. C.A.V.

Date : 14-10-2025

The present writ application has been filed for quashingthe order, dated 27.02.2017, passed by the Principal Secretary,Department of Industries, Government of Bihar, Patna, in AppealNo. 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 theorder, contained in Memo No. 6861, dated 05.12.2014, issued bythe Managing Director, Bihar Industrial Area DevelopmentAuthority, rejecting his claim for back wages for the period from01.12.2007 to 03.07.2014, and also for issuance of a direction tothe respondents to release full back wages for the said period alongwith penal interest.

2. The case of the petitioner, in brief, is that the petitionewas appointed as Peon on 07.05.1979 in the erstwhile North BiharIndustrial Area Development Authority. After formation of BiharIndustrial Area Development Authority (hereinafter referred to as‘the BIADA’) in the year 2003, the services of the petitioner wastransferred to the newly formed Authority.

3. On 27.09.2007, the petitioner was served with acharge memo alleging unauthorized absence from duty, failure toremain available on mobile phone and not responding to the callsof his superior officers.

4. In his reply, dated 03.10.2007, the petitionerexplained that during the period of his absence, he was present atRam Nagar and had also received salary for that period. He furtherstated that being a low-paid employee, he could not afford amobile phone and had provided his landline number of his home situated at Muzaffarpur to his superiors, while also pointing out theimpracticability of making daily long-distance calls.

5. Despite the explanation, the Managing Director,BIADA, vide Memo No. 269, dated 10.11.2007, imposedpunishment of compulsory retirement to the petitioner with effectfrom 30.11.2007. The petitioner challenged the order ofpunishment of compulsory retirement in C.W.J.C. No. 9420 of2008, which was allowed by this Court on 18.06.2014 and theorder of compulsory retirement was set aside. It was furtherdirected to the respondents to resolve the grievance of thepetitioner for payment of back wages in terms of the order, dated05.05.2009, passed in CWJC No. 11196 of 2007, wherein reliancehad been placed in the case of Novartis India Ltd. v. State ofWest Bengal, reported in (2009) 3 SCC 124.

6. Pursuant to the order, dated 18.06.20214, passed inCWJC No. 9420 of 2008, the petitioner submitted a representationon 03.11.2014 seeking payment of back wages for the period of hiscompulsory 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 ofback wages on the grounds, inter alia, that (i) the petitioner wasonly 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, wasperformed by others who were duly paid and the authority couldnot be compelled to make double payment for the same periodwithout 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 topursue the matter before the appellate authority, with furtherdirection to the authority to examine the whole issue afresh.

8. In pursuance thereof, the petitioner preferred AppealNo. 01 of 2015 before the Principal Secretary, Department ofIndustries, government of Bihar, Patna, but the same was rejectedon 27.02.2017 on the grounds that the petitioner was frequentlyabsent from his duty despite repeated warnings, his salary waswithheld on several occasions for such absence, and the petitionerwas suspended on three times for his act of indiscipline. It wasfurther observed that while working as a night watchman, thepetitioner was absent from the premises without any intimation,which resulted in a theft incident.

9. Learned Counsel for the petitioner argued that oncethe order of compulsory retirement was quashed by this Court, thepetitioner became entitled to all consequential benefits, includingpayment of back wages for the period he was kept out of service.The rejection of back wages on the ground of alleged indisciplineor unsubstantiated charges is wholly arbitrary inasmuch as nodepartmental enquiry was conducted in accordance with law andthe punishment itself was set aside by this Court. The respondentscould not, therefore, revive the allegations which had never beenproved.

10. Learned Counsel further submits that the petitionerwas never gainfully employed during the period from 01.12.2007to 03.07.2014. Despite this fact, the respondents neither affordedhim any opportunity to establish his non-employment nor calledupon him to file any document/affidavit to this effect, and withoutgranting any personal hearing, the Managing Director, BIADA,rejected his claim for back wages. Such action is ex-facie violativeof the principles of natural justice.

11. Learned Counsel next submits that the finding of theManaging Director, treating the petitioner as a mere temporaryemployee even after 28 years of continuous service, is perverseand unsustainable. The petitioner was extended the benefits of pay

revision and time-bound promotion at par with the permanentemployees, which clearly establishes his substantive status.Likewise, the plea of indiscipline is misconceived as no charge ofmisconduct was ever proved in a valid enquiry and the order ofcompulsory retirement having been set aside, such stale allegationscannot be resurrected to deny monetary benefits.

12. The reasoning given in the impugned order that thework of the petitioner was carried out by others during the periodof compulsory retirement of the petitioner and the authority cannotbe compelled to make double payment for one work is equallyuntenable. It was the action of the authority itself, which preventedthe petitioner from discharging his duties and the petitioner cannotbe penalized for the consequences of such arbitrary action.

13. Reliance is placed on the decision of the Hon’bleSupreme Court, in the case of Novartis India Ltd. (supra).

14. Learned Counsel next submits that the PrincipalSecretary, while dismissing the appeal preferred by the petitioner,vide order, dated 27.02.2017, failed to consider the settled law laiddown by the Hon’ble Supreme Court, and instead relied uponunsubstantiated allegations, which cannot constitute a valid groundto deny back wages and as such, the impugned orders, dated05.12.2014 and 27.02.2017, are arbitrary, violative of Articles 14

and 21 of the Constitution of India, contrary to binding judicialprecedents and are liable to be quashed, with a consequentialdirection to the authorities to release back wages with interest.

15. Learned Counsel appearing for the BIADA submitsthat the petitioner seeks back wages for the period from01.12.2007 to 03.07.2014, during which he remained out ofservice on account of his compulsory retirement. Although theorder of compulsory retirement, dated 10.11.2007, was set aside bythis Court on 18.06.2014, with specific direction that the questionof back wages will be considered in light of the earlier judgment,dated 05.05.2009 and the principles laid down by the Hon’bleSupreme Court, in the case of Novartis India Ltd. (supra).

16. In pursuance of the aforesaid direction, therepresentation filed by the petitioner was duly examined by theManaging Director, BIADA, who, after considering the entireservice record and relevant factors, passed a detailed and reasonedorder vide Memo No. 6861, dated 05.12.2014, rejecting the claimof the petiioner. The order recorded that the petitioner’s initialappointment was purely temporary, irregular and was madewithout any advertisement or proper selection process. Theappointment letter of the petitioner itself stipulates that his servicewas terminable at any time without notice. The service record of

the petitioner further revealed that the petitioner was habituallyabsent from duty without prior permission or information,repeatedly avoided communication with his superiors despiteseveral attempts and consistently displayed a pattern ofindiscipline. It was noted that he had been suspended on threeoccasions and while working as a night guard, he had left thepremises unattended, leading to a theft incident. The order alsoobserved that during the period in question, the petitioner neitherdisclosed whether he was gainfully employed elsewhere nordemonstrated any effort to seek employment.

17. Owing to the petitioner’s absence, the BIADA wascompelled to get the required work executed through otherpersons, mostly on a contractual basis, who were duly paid fortheir services. The grant of back wages, in such circumstances,would result in double financial liability on the Authority, which isimpermissible in law. It has been emphasized that while backwages was rightly denied, the petitioner was nonetheless extendedall service benefits due upon his reinstatement in service. He wasgranted the 2[nd] ACP and MACP benefits with effect from07.01.2015, and after superannuation, on 31.07.2016, at the age of60 years, he was paid earned leave, gratuity, arrears of salary and all other admissible retirement benefits. No dues presently remainoutstanding against BIADA.

18. Learned Counsel thus submits that the impugnedorders are well-reasoned and in accordance with the criteria laiddown by the Hon’ble Supreme Court. The petitioner, having notmade out any case for entitlement of back wages, is not entitled toany relief in the present writ petition.

19. In reply, learned Counsel for the petitioner submitsthat the petitioner obtained a copy of his memo of appeal throughRTI, which is annexed as Annexure 9 to the supplementaryaffidavit filed by the petitioner, wherein, it has been specificallystated on affidavit before the Appellate Authority that he was notgainfully employed during the period of his compulsoryretirement.

20. I have heard learned Counsel for the partiesconcerned and have gone through the materials available onrecord.

21. The point for determination is whether the petitioner,whose compulsory retirement was quashed, is entitled to backwages for the intervening period from 01.12.2007 to 03.07.2014.

22. The Supreme Court, in the case of Hindustan TinWorks Pvt. Ltd v. Employees of Hindustan Tin works Pvt.

Ltd., reported in (1979) 2 SCC 80, has held that ordinarily, aworkman, whose service has been illegally terminated, would beentitled to full back wages except to the extent he was gainfullyemployed during the enforced idleness. That is the normal rule.Any other view would be a premium on the unwarranted litigativeactivity of the employer. If the employer terminates the serviceillegally and the termination is motivated as in this case, viz., toresist the workman's demand for revision of wages, thetermination may well amount to unfair labour practice. In suchcircumstances, reinstatement being the normal rule, it should befollowed with full back wages.

23. Further, in the case ofDeepali Gundu Surwase v.

Kranti Junior Adhyapak Mahavidyalaya, reported in (2013) 10SCC 324, the Supreme Court has held that denial of back wageswould amount to indirectly punishing the employee and rewardingthe employer by relieving him of the obligation to pay back wages,whether employer wants to pat back wages or the employee isentitled to deny back wages or contest the employee’s entitlementto get consequential benefits, the employer has to plead and provethat employee was gainfully employed during the interveningperiod.

24. In the decision of the Supreme Court, in the case ofPradeep v. Manganese Ore (India) Ltd.,reported in (2022) 3SCC 683, and also a decision of Division Bench of this Court, inL.P.A. No. 317 of 2024, the Courts have reiterated the decision ofDeepali Gundu Surwase (supra).

25. Now coming to the facts of the present case, theManaging Director as well as the Appellate Authority have deniedback wages by relying on past service record and temporary natureof petitioner’s appointment. These grounds are unsustainable.Once the order of compulsory retirement was set aside, the allegedmisconduct could not be the basis to deny consequential benefits,particularly in the absence of a lawful departmental enquiryestablishing such misconduct. The reasoning that the petitionerwas a temporary employee also does not impress this Court. Thepetitioner had rendered over 28 years of service, received timebound promotion and pay revision. To treat the petitioner as atemporary employee for denying back wages is arbitrary.

26. As regards gainful employment of the petitioner, thepetitioner has categorically asserted in the memo of appeal that heremained unemployed during the period of his compulsoryretirement. The Authority has not produced any material to showthat the petitioner was gainfully employed during the period of his compulsory retirement. In view of the specific ground taken by thepetitioner that he was not gainfully employed elsewhere, theburden cast upon the employer, which has thus not beendischarged by the BIADA in the present case. The plea of doublepayment is equally not tenable as the employee, who was illegallykept out of service, cannot be penalized for the employer’s own actof termination.

27. Considering the laws laid don by the Supreme Courtand the decision of this Court, as discussed herein above,ordinarily, a workman, whose service has been illegally terminatedwould be entitled to back wages except during the period ofabsence from duty. The order of compulsory retirement of thepetitioner has been set aside by this Court and the matter wasreferred back to the Authority to take a decision on the issue ofpayment of back wages.

28. On the facts and law discussed herein above, theimpugned orders, dated 05.12.2014 and 27.02.2017, are liable tobe set aside.

29. Accordingly, the impugned orders, dated 05.12.2014and 27.02.2017, are set aside.

30. The BIADA is directed to pay 70 per cent of backwages to the petitioner for the period 01.12.2007 to 03.07.2014, in the entirety of the facts of this case. The payment shall be made tothe petitioner within a period of four months from the date ofreceipt/production of a copy of this order.

31. In the result, this writ application is allowed.

32. There shall be no order as to costs.

Prabhakar Anand/-

AFR/NAFRAFRCAV DATE29-08-2025Uploading Date14-10-2025Transmission DateN/A

(Anil Kumar Sinha, J.)