Nafr High Court
Case Details
1 Digitally signed by RAMESH KUMAR VATTI Date: 2025.07.01 15:32:10 +0530 2025:CGHC:28080 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1428 of 2017 1 - Sunil Kumar Bharti S/o Shivkumar Bharti, Aged About 32 Years R/o Near Sai College, Banaras Road, Ambikapur, Surguja, District Surguja Chhattisgarh Versus 1 - State Of Chhattisgarh Through Secretary, Home Police Department, Mahanadi Bhawan, Mantralaya, Capital Complex, New Raipur, District Raipur Chhattisgarh ... Petitioner 2 - Director General Of Police, Police Headquarters, City Raipur, District Raipur, Chhattisgarh P I N Code 492001 3 - Inspector General Of Police, Surguja Range, Chhattisgarh, District Surguja Chhattisgarh 4 - Superintendent Of Police, Surajpur, District Surajpur Chhattisgarh For Petitioner For Respondents : :
Legal Reasoning
“44. There have been decisions of this Court rendered thereafter where a shift in approach on awarding full back wages is clearly discernible. However, a coordinate Bench of this Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 considered a dozen precedents on award of back wages upon reinstatement (referred to in paras 13 and 14). Speaking through Hon'ble G.S. Singhvi, J. (as his Lordship then was), the legal position was neatly summed up in the following words: (SCC pp. 344 & 356-58, paras 22 & 38) “22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer be relieving him of the till 5 obligation to pay back wages incluing the emoluments. 38. The propositions which can be culled out from the aforementioned judgments are: 38.1 In cases of wrongful termination of service, reinstatement with continuity of service and back wages is normal rule. 38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/ workman, the financial condition of the employer and similar other factors. 38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact that to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. The cases in which the Labour 38.4 Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the the punishment was disproportionate misconduct found proved, then it will have the discretion not to award full back wages. to 6 However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5 The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/ or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Articles 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the the employer employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. the sufferer and is 38.6 In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finally given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-a-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the 7 course suggested in Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80. 38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433 that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches, referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.” (emphasis supplied) 6. Taking into consideration the fact that the order of reinstatement was passed on 09.08.2016 by respondent No. 2 with the stipulation that the petitioner would not be entitled to the salary of the intervening period, and after reinstatement, the petitioner has claimed back wages,
Arguments
... Respondents Ms. Anushka Sharma, Advocate holding the brief of Mr. Manoj Paranjpe, Advocate Mr. Pramod Shrivastava, Deputy Government Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 26/06/2025 1. The petitioner has filed this petition seeking the following relief(s):- 10.1 That, this Hon'ble Court may kindly be leased to issue a writ/writs, direction/directions, order/orders and the impugned order dated 09.08.2016, passed by the Director General of Police, Raipur, so far as it relates to refusal to grant salary and allowances for the period of suspension and regularization of the period of suspension and other consequential benefits, may 2 kindly be set-aside and respondents may kindly be directed to consider the case of the petitioner for grant of salary and allowances for the period of suspension i.e. from 23.08.2012 to 09.08.2016 and they may further be directed to regularize the period of suspension treating the said period as duty for all purposes with all consequential benefits. 10.2 That, this Hon'ble Court may kindly be leased to issue a writ/writs, direction/directions, order/orders and the respondent authorities may kindly be directed to consider the case of the petitioner to participate in the departmental promotional examination 2017 scheduled to be held between 26.03.2017 to 28.03.2017 for the promotion of Head Constables to the post of Assistant Sub-Inspector, Grade-A. 10.3 That, this Hon'ble Court may kindly be pleased to grant any other relief(s), which is deemed fit and proper in the aforesaid facts and circumstances of the case. 2. Ms. Anushka Sharma, learned counsel appearing for the petitioner would submit that the petitioner was holding the substantive post of Head Constable as he was appointed as a Constable vide order dated 22.10.2003. She would contend that the petitioner was promoted to the post of Head Constable vide order dated 30.04.2011. She would further contend that the petitioner was placed under suspension vide order dated 23.08.2012 and an article of charge was also issued. It is contended that the penalty of removal from services was passed by the Disciplinary Authority vide order dated 26.04.2014. She would further contend that the order of removal was affirmed by the Appellate Authority. She would argue that a mercy appeal was preferred before respondent No. 2 and it was allowed vide order dated 09.08.2016 in the absence of cogent evidence. She would also contend that the authority concerned passed an order of reinstatement but the period for which petitioner remained out of service, was declared as 'no work no pay'. Ms. Anushka Sharma would state that the mercy appeal preferred by the petitioner was allowed by respondent No. 2, therefore, 3 in light of the FR 54, the petitioner would be entitled to back wages. She has placed reliance on the judgment passed by the Hon'ble Supreme Court in the matter of Maharashtra State Road Transport Corporation Vs. Mahadeo Krishna Naik reported in (2025) 4 SCC 321 wherein it is held that reinstatement of a government servant would bring its position, which he was holding before dismissal or removal or termination of service. She would pray that the respondents may be directed to make payment of back wages/arrears of salary. 3. Mr. Pramod Shrivastava, learned Deputy Government Advocate appearing for the State/respondents would oppose. He would submit that the petitioner was removed from services and the mercy appeal preferred by him was allowed vide order dated 09.08.2016. He would contend that the evidence led by the department in the departmental enquiry was not found sufficient and it was observed that the department could not prove the charges. He would also contend that the petitioner failed to plead and prove the fact that he was not gainfully employed during that period, therefore, the petition deserves to be dismissed. 4. I have heard learned counsel for the parties and perused the documents available on the record. 5. In the matter of Mahadeo Krishna Naik (supra), the Hon'ble Supreme Court while dealing with this issue held that the reinstatement would entitle the employee to back wages and if the employer wants to deny, it has to plead and prove the fact that during the intervening period, the employee was gainfully employed. The relevant paragraph 44 is reproduced herein below:- 4
Decision
therefore, this petition, at this juncture, is disposed of reserving liberty in favour of the petitioner to make a representation before respondent No. 2 within a period of 30 days from today and in turn, the authority concerned is directed to decide the representation strictly in accordance with the law keeping in mind the law laid down by the Hon'ble Supreme Court in the matter of Mahadeo Krishna Naik (supra) within a further period of 90 days. 7. With the aforesaid direction(s)/observation(s), the petition is disposed of. No costs. Sd/- (Rakesh Mohan Pandey) Judge vatti