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2004 DIGILAW 1069 (PAT)

Sudhir Kumar v. State Of Bihar

2004-10-05

NARAYAN ROY

body2004
Judgment 1. Heard counsel for the parties. 2. The question which has fallen for consideration in this writ application is as to whether the petitioner would be entitled to get his back wages/salary on account of setting aside the order of termination and direction to reinstate him on his substantive post during the period he remained under the order of termination. 3. Learned counsel for the petitioner submitted that vide order no. 1915 dated 3.12.1997 the petitioner was terminated from service with immediate effect. The order of termination was challenged before this court in C.W.J.C. No. 1219 of 1998. The writ application, however, was allowed on 2.9.1999 by virtue of the order as contained in Annexure 2 and the order of termination was set aside and the petitioner was directed to be reinstated on his substantive post. Pursuant to order passed by this court as referred to above, the petitioner was reinstated on his post with effect from 16.9.1999 and when he asked for the salary for the period he remained terminated i.e. from 3.12.1997 to 15.9.1999, the same was rejected giving rise to this writ application. It is further contended by learned counsel that the order dated 2.9.1999 passed in C.W.J.C. No. 1219 of 1998 was not appealed against by the concerned respondent rather the petitioner was reinstated on his substantive post w.e.f. 16.9.1999 and since this court had held the order of termination as illegal and without jurisdiction and quashed the same with direction to the authorities to reinstate him, it is implied that the petitioner would be entitled for his salary for the period he remained terminated. Learned counsel also contended at the same time that during the period the petitioner remained under termination he was not gainfully employed. In support of his proposition, learned counsel has relied upon the case of Manorma Verma (SMT) V/s. The State of Bihar and Ors. reported in 1994 Supp. (3) Supreme Court Cases 671 and the case of M/s. Hindustan Tin Works Pvt. Ltd. V/s. The Employees of M/s Hindustan Tin Works Pvt. Ltd. and Ors. reported in A.I.R. 1979 S.C. 75. 4. Mr. reported in 1994 Supp. (3) Supreme Court Cases 671 and the case of M/s. Hindustan Tin Works Pvt. Ltd. V/s. The Employees of M/s Hindustan Tin Works Pvt. Ltd. and Ors. reported in A.I.R. 1979 S.C. 75. 4. Mr. Kumar Brajendra Nath, learned counsel appearing on behalf of the Bihar State Election Commission, Bihar (hereinafter referred to as Commission) on the contrary, submitted that since the petitioner remained terminated during the period 3.12.1997 to 15.9.1999, he would not be entitled for his salary as he had not worked during those period and he was not on the roll of the Commission. Learned counsel also submitted that in absence of any direction given by this court while setting aside the order of termination of the petitioner, it was not incumbent upon the respondent Commission to pay his due salary w.e.f. 3.12.1997 to 15.9.1999. Learned counsel for the respondents in support of his submissions placed reliance on the case of State Bank of India V/s. Ram Chandra Dubey and Ors. reported in JT 2000 (Suppl. 2) S.C. 590. 5. In the case of Manorma Verma (SMT) (supra) the Apex Court held as follows: "We do not see any justification for the High Court not allowing the appellant back wages after it came to the conclusion that the termination was illegal. Ordinarily, the consequential order of grant of back wages must follow, unless there are reasons on record which would justify a departure from the normal order. We do not see any reasons on record to come to the conclusion that the appellant was not entitled to back wages. There is also nothing on record to show that during the period she was out of service, she was gainfully employed elsewhere. In the circumstances we allow this appeal and set aside that part of the High Courts order by which the appellant was denied back wages and award her back wages from the date of termination of service till she was reinstated in service under the impugned order of the High Court. The appellant will be paid her back wages within three months from today. There will be no order as to costs. 6. The appellant will be paid her back wages within three months from today. There will be no order as to costs. 6. In the case of M/s Hindustan Tin Works Pvt. Ltd. (supra) the Supreme Court observed that ordinarily, a workman whose service has been illegally terminated either by dismissal, discharge or retrenchment will be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. When the termination of services was found to be neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered services they would legitimately be entitled to the wage for the same. If the workmen were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. 7. From the order passed by this court as contained in Annexure 2, it appears that this court held the order of termination illegal and without jurisdiction as the same was issued by way of a penal measure as no opportunity was given to him as required under Article 311 (2) of the Constitution and thus, set aside the order of termination and directed for reinstatement of the petitioner and thus, it was imperative for the respondents to reinstate the petitioner with all back wages as the order passed by this court was not appealed against nor materials were brought on record by the respondents to show that during the period of termination the petitioner was gainfully employed. 8. In the facts and circumstances, therefore, the ratio laid down by the Apex court in the case of Manorma Verma (SMT) [supra) and M/s Hindustan Tin Works Pvt. Ltd. (supra) aptly applies in this case. So far the case of State Bank of India (supra) as relied upon by learned counsel for the respondents is concerned. If would not be applicable in the facts and circumstances of this case as the workmen concerned had a remedy under sectiin 33C(2) of the Industrial Disputes Act and keeping in view this aspect of the matter, the Apex Court set aside the order of the Labour Court and also of the High Court awarding back wages to the concerned workmen. 9. 9. It is admitted fact that the petitioner remained out of job on account of termination of his service from 3.12.1997 to 15.8.1999 and during that period he was not gainfully employed anywhere and the order of termination was found to be illegal and unjustified by this court and direction for reinstatement was issued and thereafter the petitioner was reinstated by the concerned respondent with effect from 16.9.1999. 10. Considering the facts and circumstances of the case and for the reasons aforementioned, therefore, it is he!d that the petitioner in view of the earlier direction of this court as contained in Annexure 2 would be entitled for his salary with effect from 3.12.1997 to 15.9.1999. The respondent no. 3 the commission is directed to release and pay the entire arrears of salary with admissible allowances etc. to the petitioner with effect from 3.12.1997 to 15.9.1999 within a period of three months from the date of receipt/production of a copy of this order. 11. With the aforesaid observation/direction, this application is disposed of.