ORDER Aggrieved by order dated 23.2.2004 passed by the Chairman-cum-Managing Director, Bharat Coking Coal Limited, the petitioner has approached this Court by filing the present writ petition. 2. The brief facts of the case are that the petitioner, a member of the executive committee of the Labour Union namely “Bihar Janata Khan Mazdoor Sangha” was working as Fitter/ Helper in the respondent-company. The petitioner was appointed in the year 1986 and his service was regularized on 20.06.1987. The said Labour Union took up the cause of its members for due date of their promotion, with the management of the respondent-company, and in that connection a notice was served on 12.5.1997 indicating that from 19.5 1997 to 2.6.1997 they would observe protest. It was also indicated by the secretary of the Union to the respondent-company that if their demands were not fulfilled they would sit on hunger strike. On 21.9.1997 one employee of the company namely, Dinesh Singh submitted a complaint to the respondents alleging abuse and assault by the secretary and other office bearers of the Union including the petitioner. The said complaint was forwarded to the officer–in-charge, Baghmara police station and a case being Baghmara P.S. case no. 182 of 1997 under Sections 341, 323, 504, 34 I.P.C. was registered. On 21.9.1997 itself the order of dismissal from service with immediate effect was issued against the petitioner and three other office bearers of the Union. 3. The order dated 21.9.1997 records that “Incidence of 21.9.1997 created panic amongst the workers of B.C.C.L particularly those who have participated in D.P.C. for their promotion. They are feeling unsafe, scared about security of their lives and property. Incidence in question has also been reported to the police. Shri Dinesh Singh has been hospitalized for treatment at Central Hospital , Baghmara”. 4. The order dated 21.9.1997 was challenged by the petitioner and others in C.W.J.C. No. 239 of 1998 (R) taking a plea that the petitioner and others were acquitted from the criminal charges by the Criminal Court. During the proceeding in C.W.J.C. No. 239 of 1998(R), a plea was raised that Clause 28 of the Certified Standing Order is ultra virus to the Constitution, and is also violative of principles of natural justice. During the proceeding in C.W.J.C. No. 239 of 1998(R), a plea was raised that Clause 28 of the Certified Standing Order is ultra virus to the Constitution, and is also violative of principles of natural justice. The writ petition was disposed of in the following terms : 11 “From the impugned order, it appears that while taking decision for discharge of the petitioner from services their past conduct was also taken into consideration. Admittedly no such drastic action was taken against the petitioners on the basis of their alleged past conduct. The incident of 21.9.1997 is the main ground for passing such drastic order of discharge of the petitioners from services. I am, therefore, of the view that after the petitioners have been acquitted in the criminal case from the charges levelled against them which is the basis of their discharge also, then the respondents-authorities are under obligation to consider the representation of the petitioners particularly to reconsider the quantum of punishment imposed on them. I am further of the opinion that the discharge of the petitioner from services particularly when they have been acquitted in the criminal case will be highly excessive and unjustified. It is, therefore, a fit case where the respondents should consider the representation of the petitioners and to reduce the quantum of punishment awarded to the petitioners. 12. This writ application is, therefore, disposed of with a direction to the respondent no. 2 Chairman-cum-Managing Director, BCCL, Dhanbad to consider the representation of the petitioners and to pass a fresh order in the light of the observation made hereinabove. In order to avoid any delay, the petitioners are directed to file a fresh representation along with a copy of this order to the respondent no. 2, who shall take a final decision within two months from the date of filing of the representation.” 5. The representation of the petitioner was disposed of on 14.9.2000 by clarifying that the petitioner has been discharged from service instead of dismissal from the service of the company in terms of the office order. Still aggrieved, the petitioner again moved the High Court in W.P.(S) No. 2665 of 2001 challenging order dated 14.9.2000. The writ petition was allowed and order dated 14.9.2000 was quashed. Still aggrieved, the petitioner again moved the High Court in W.P.(S) No. 2665 of 2001 challenging order dated 14.9.2000. The writ petition was allowed and order dated 14.9.2000 was quashed. The matter was remitted to the Chairman-cum-Managing Director, B.C.C.L with a direction to pass a fresh order in terms of the direction contained in order dated 25.1.2000 passed in C.W.J.C. no. 239 of 1998 (R) 6. On remand, the Chairman-cum-Managing Director considered the representation of the petitioner and passed the penalty order dated 23.2.2004, relevant portion of which are extracted below, “That the matter has been given a thoughtful re-consideration by the undersigned. No doubt, you were acquitted in the criminal case. However, on earlier occasions while the matter was taken into account by the then C.M.D., it was found that you had indulged in a serious misconduct of assaulting one Dinesh Singh, Fitter, for attending a departmental promotion committee. He was caught by his neck, thrown on the ground and beaten with fists and legs by all of you. The aforesaid misconduct had caused a reign of terror in the mind of the employees of the collieries. It created panic in the area and only in order to maintain the security and interest of the Company, you were dismissed from service. Even in earlier occasions in 1989 and 1991, you had indulged in violent action against officers of the Company. However, taking a lenient view of the matter and also considering the observations made by the Hon'ble High Court in its judgement dated 25.1.2000 for reducing the quantum of punishment, the undersigned is of the opinion that the ends of justice would be met by reinstating you in service with immediate effect with reduction to a lower post, without any back wages till your date of joining. Further, the period from 21.9.1997 till your date of joining shall be treated as dies-non. On being reinstated you shall be posted at Chanch Victoria Area.” 7. The present application has been filed seeking quashing of that part of order dated 23.2.2004 passed by the respondent by which, the respondent has not given back wages after reinstating the petitioner in service and has further ordered to treat the period from 21.9.1997 till his joining as “dies- non”. The present application has been filed seeking quashing of that part of order dated 23.2.2004 passed by the respondent by which, the respondent has not given back wages after reinstating the petitioner in service and has further ordered to treat the period from 21.9.1997 till his joining as “dies- non”. It would be useful to extract the prayer made in the writ petition, which is given below, “It is, therefore, prayed that your Lordships may graciously be pleased to issue appropriate writ(s)/Rule/Order(s) quashing that part of Annexure-5 by which the respondent has ordered to treat the intervening period as dies non; and commanding upon respondent to provide back wages and promotional benefits to the petitioner” 8. A counter-affidavit has been filed on behalf of the respondent in which it has been contended that the punishment inflicted upon the petitioner is neither harsh nor excessive. It has further been stated that payment of back wages is not natural consequence of setting aside of order of removal from service. The petitioner submitted his joining without any protest and thus, he is estopped in law from raising any claim for payment of full back wages. In para 4 to the counter- affidavit the respondent has stated as under, 4. “That the reliefs sought for by the writ petitioner in this writ application need not be granted by this Hon'ble Court in view of the fact that the payment of full back wages has been held to be not a natural consequence of setting aside of the order of removal. The Hon'ble Supreme Court of India in the case of M.P. State Electricity Board Vs. Smt. Jarina Bee, reported in 2003 AIR SCW 3380 has held that merely because the order of removal is set aside and the employee is reinstated, payment of full back wages cannot be the authomatic consequence. It is stated and submitted that in pursuance of the order dated 23.2.2004 contained in Annexure-5 to the writ application, the petitioner has submitted his joining has been unconditional. In view of the aforesaid fact, the petitioner is estopped in law from raising such a dispute relating to payment of full back wages and all consequential benefits. It is stated and submitted that in pursuance of the order dated 23.2.2004 contained in Annexure-5 to the writ application, the petitioner has submitted his joining has been unconditional. In view of the aforesaid fact, the petitioner is estopped in law from raising such a dispute relating to payment of full back wages and all consequential benefits. It is further submitted that from a perusal of Annexure-5 to the writ application, it would be evident that the Chairman-cum-Managing Director while passing the reasoned order has taken into consideration the conduct of the petitioner and in view of such misconduct, has been pleased to impose the punishment of non-payment of back wages. The petitioner, in the writ application, is not aggrieved by reduction in rank.” 9. A short rejoinder affidavit has been filed on behalf of the petitioner to the counter-affidavit of the respondent, in which it has been stated that the petitioner has been mis-treated and the punishment was motivated and the petitioner is entitled for benefit of back wages. 10. A supplementary affidavit has also been filed on behalf of the petitioner, in which it has been stated that some employees working in OCP at Damoda Colliery, have been promoted to the next higher post with effect from 1st May, 2006, out of them, one Shri S.P. Tarun is junior to the petitioner however, this has also been pointed out that the petitioner had earlier moved for his promotion to this Court by filing W.P.(S) No. 7182 of 2006 which was dismissed as withdrawn on 13.12.2004 with permission to the petitioner to take appropriate step before appropriate forum. 11. Heard learned counsel appearing for the parties at length and perused the documents on record. 12. Mr. Mahesh Tiwari, learned counsel appearing for the petitioner has raised a contention that in terms of Clause 28 of the Certified Standing Order, the order of dismissal from service was passed taking into account the registration of the criminal case against the petitioner. In the said criminal case, the petitioner has been acquitted from charges levelled against him and therefore, the order of penalty imposed upon the petitioner is liable to be interfered with by this Court. Relying on the judgment of the Hon’ble Supreme Court in “M/s Hindustan Tin Works Pvt. Ltd. Vs. In the said criminal case, the petitioner has been acquitted from charges levelled against him and therefore, the order of penalty imposed upon the petitioner is liable to be interfered with by this Court. Relying on the judgment of the Hon’ble Supreme Court in “M/s Hindustan Tin Works Pvt. Ltd. Vs. Employees of M/s Hindustan Tin Works Pvt. Ltd. & others” reported in (1979) 2 SCC 80 , the learned counsel has submitted that full back wages is normal rule in cases where the workman has been illegally terminated and since the petitioner has been reinstated in service, he is entitled for grant of full back wages and consequential seniority in service. He has also relied on judgments reported in (2011) 5 SCC 142 , (2002) 6 SCC 41 , (2007) 1 JLJR 469 , (2010) 4 JLJR 319 and order passed by a learned Single Judge of this Court in W.P.(S) No. 2108 of 2004 dated 5.11.2012. 13. Mr. Anoop Kumar Mehta, learned counsel appearing for the respondent contends that it is not open to the petitioner to challenge the legality of order dated 21.9.1997 in the present writ proceeding. The order dated 21.9.1997 was challenged by the petitioner in C.W.J.C. No. 239 of 1998(R) and the said order was not interfered with by this Court. The only direction issued to the respondent by this Court was to re-consider the quantum of punishment imposed on the petitioner. Neither in the proceeding of the C.W.J.C. no. 239 of 1998(R) nor in the proceeding of W.P.(S) No. 2665 of 2001, this Court has recorded a finding that the petitioner has been illegally terminated from service. The Clause 28 of the Certified Standing Order of the company has been held intra-virus to the Constitution and the order of remand to re-consider the quantum of punishment was made only in the light of the acquittal of the petitioner in the criminal case. In fact the criminal case was compromised. The past conduct of the petitioner has also been looked into by the respondent and in compliance of direction issued by this Court the respondent has passed the impugned order dated 23.2.2004. On these grounds the learned counsel has opposed the prayer of the petitioner. 14. In fact the criminal case was compromised. The past conduct of the petitioner has also been looked into by the respondent and in compliance of direction issued by this Court the respondent has passed the impugned order dated 23.2.2004. On these grounds the learned counsel has opposed the prayer of the petitioner. 14. From the orders passed by this Court in earlier proceeding, it appears that the order of remand by this Court was limited to the question of quantum of punishment only. The exercise of power under Clause 28 of the Certified Standing Order by the respondent - company has not been held illegal, arbitrary or malafide by this Court. The petitioner has gone to the Supreme Court also and order dated 25.1.2000 passed by this Court in C.W.J.C. no. 239 of 1998(R) has been affirmed by the Supreme Court. 15. Further, a perusal of the writ petition discloses that the limited prayer of the petitioner in the present proceeding is, for grant of back wages and for not treating the period from 21.9.1997 till his joining as “dies-non”. The penalty order of reduction in rank of the petitioner has been accepted by the petitioner and therefore, the contention raised by the learned counsel appearing for the petitioner assailing that part of the penalty order dated 23.2.2004 is beyond the purview of the present writ proceeding. 16. The contention of the learned counsel appearing for the petitioner that upon reinstatement in service the petitioner is entitled for grant of full back wages is also untenable. Learned counsel has placed reliance on the judgments in which also it has not been held that in every case, upon reinstatement the workman would be entitled for full back wages. The learned counsel has placed reliance on para 9 of the judgment in “M/s Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd. and others.” ( Supra), which is extracted below; 9. “It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz., to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit the U.P. Industrial Disputes Act, 1947, the State has endeavoured to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it they were forced to litigation up to the apex Court now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. A Division Bench of the Gujrat High Court in Dhari Gram Panchayat v. Safai Kamdar mandal, and a Division Bench of the Allahabad High Court in Postal Seals Industrial Co-operative Society Ltd. v. Labour Court II, Lucknow, have taken this view and we are of the opinion that the view taken therein is correct.” 17. The learned counsel appearing for the petitioner has vehemently argued that the judgment in case of “M/s Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd and others.” (Supra) is a 3 -Judge Bench judgment of the Hon'ble Supreme Court and it still holds the field. Relying on the said judgment, the learned counsel has submitted that the petitioner is entitled for grant of full back wages as he has been reinstated in service . 18. Adverting to the contention of the learned counsel for the petitioner, I find that the judgment in “M/s Hindustan Tin Works Pvt. Ltd. Vs. Relying on the said judgment, the learned counsel has submitted that the petitioner is entitled for grant of full back wages as he has been reinstated in service . 18. Adverting to the contention of the learned counsel for the petitioner, I find that the judgment in “M/s Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd. and others.” has been considered by the Hon'ble Supreme Court in “ U.P. State Brassware Corpn. Ltd. and another Vs. Uday Narain Pandey” reported in (2006) 1 SCC 479 , and the Hon'ble Supreme Court after noticing that in the said case also the Court itself directed payment of 75 % of back wages and that too in two equal instalments, has observed as under, 27. “In Hindustan Tin Works (P) Ltd. v. Employees this Court merely held that the relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It, therefore, does not lay down a law in absolute terms to the effect that the right to claim back wages must necessarily follow an order declaring that the termination of service is invalid in law.” 19. In “J.K. Synthetics Ltd. Vs. K.P. Agrawal and another” reported in (2007) 2 SCC 433 , the Hon'ble Supreme Court had once again an occasion to consider the plea that where the order of dismissal or removal is set aside, the employee is entitled to full back wages as matter of course. After considering the judgment in “M/s Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd. and others.” (Supra) and other cases, the Hon'ble Supreme Court has held as under, 17. “There is also a misconception that whenever reinstatement is directed, “continuity of service” and “consequential benefits” should follow, as a matter of course. The disastrous effect of granting several promotions as a “consequential benefit” to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether “continuity of service” and /or “consequential benefits” should also be directed. Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether “continuity of service” and /or “consequential benefits” should also be directed. We may in this behalf refer to the decisions of this Court in A.P. SRTC v. S. Narsagoud, A.P. SRTC v. Abdul Kareem and Rajasthan SRTC v. Shyam Bihari Lal Gupta.” 20. In “G.M., Haryana Roadways v. Rudhan Singh” reported in (2005) 5 SCC 591 , the Hon'ble Supreme Court has held that there is no rule of thumb that in each and every case, where a finding is recorded by a Court or tribunal that the order of termination of service was illegal, an employee is entitled to full back wages. 21. I find that there are cases in which the Court has not awarded the benefit of back wages at all. In “Reserve Bank of India Vs. Gopinath Sharma and another” reported in (2006) 6 SCC 221 , the Hon'ble Supreme Court has held the order passed by the High Court granting back wages to an employee who was engaged on daily wages, not sustainable. 22. Again, in “U.P. SRTC Vs. Mithu Singh“ reported in ( 2006) 7 SCC 180, a case in which a bus driver was reinstated in service after 30 long years and he had not shown any improvement in his conduct, the Hon'ble Supreme Court has held as under, 16. “Thus, entitlement of a workman to get reinstatement does not necessarily result in payment of back wages which would be independent of reinstatement. While dealing with the prayer of back wages, factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate court/tribunal.” 23. It is thus clear that no straight jacket formula can be evolved for grant of back wages to the workman. The judgment in “M/s Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd. and others” has been considered by the Supreme Court in subsequent cases and it has been indicated that full back wages is not the normal rule in all circumstances. Moreover, I find that the facts of the present case are entirely different from the cases relied upon by the petitioner in the present case. In the present case it has not been held that termination from service was illegal. Moreover, I find that the facts of the present case are entirely different from the cases relied upon by the petitioner in the present case. In the present case it has not been held that termination from service was illegal. This Court remanded the matter only because the petitioner was not convicted in the criminal case and therefore, it was ordered that the said fact should be taken into consideration by the respondent-company. The petitioner has been reinstated in service by the respondent-company and not by the Court or by virtue of order of reinstatement by the Court. 24. There is another aspect of the matter which has come to my notice. From a perusal of the documents on records, it appears that after the remand of the matter by order dated 25.1.2000, the matter was re-considered by the Chairman-cum-Managing Director, Bharat Coking Coal Limited and order dated 14.9.2000 passed by him. A perusal of the said order discloses that it was passed considering the past conduct of one Shri Shyam Kishore Singh, Ex-Fitter and the case of the petitioner was not considered at all. However, the said order dated 14.9.2000 has been passed and communicated to all the four persons who were dismissed from service by order dated 21.9.1997 and order impugned in the present writ petition has been issued merely reiterating the findings recorded in order dated 14.9.2000. This appears to me, has caused some prejudice to the petitioner however, since the order of reversion by the impugned order dated 23.2.2004 has not been challenged in the present writ proceeding, I am inclined to consider this aspect only for the purpose of interfering with penalty whereby the period between 21.9.1997 till joining of the petitioner has been treated as “dies-non.” 25. I further find that since the petitioner had to approach this Court on three occasions and during the said period he remained out of service. Had the order of penalty as contained in order dated 23.2.2004 been passed earlier, that is, after the order passed by this Court on 25.1.2000 itself, the petitioner would have received his salary etc. from that date itself. However, since there is no pleading in writ petition that the petitioner was not gainfully employee during the period between 25.1.2000 to February, 2004, it would meet the ends of justice, if 50 % back wages is awarded to the petitioner. from that date itself. However, since there is no pleading in writ petition that the petitioner was not gainfully employee during the period between 25.1.2000 to February, 2004, it would meet the ends of justice, if 50 % back wages is awarded to the petitioner. In so far as the penalty of treating the period between 21.9.1997 till his joining as “dies-non” is concerned, I am of the view that since the petitioner has been reduced in rank and some prejudice has been caused to him, the imposition of the penalty, that the period between 21.9.1997 till his joining would be treated as “dies-non”, is liable to be interfered with. 26. In “State of Uttar Pradesh and others Vs. Ram Daras Yadav” reported in (2010) 2 SCC 236 , the Hon'ble Supreme Court when faced with a situation in which it was difficult to examine the veracity of the allegation as there was no definite conclusion recorded in the domestic enquiry, interfered with the punishment of dismissal and also awarded 50 % back wages to the employee. 27. In a case where the employee did not work for considerable period however, an award was made by the industrial tribunal granting full back wages and the award was affirmed by the High Court, the Hon'ble Supreme Court modified the award by granting 50 % back wages to the employee. [(“Bharat Coking Coal Limited through Management Vs. National Coal Workers Congress through Vice-President.”reported in (2009) 7 SCC 160 ] 28. In “Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya and another” reported in (2002) 6 SCC 41 , when it was found by the Hon'ble Supreme Court that award of full back wages was made on the assumption that quashment of dismissal order should be followed by reinstatement with full back wages as a matter of course, instead of remanding the case which was 22 long years old, reduced the quantum of back wages to 50 %. 29. In view of aforesaid discussion, the writ petition is partly allowed.