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2014 DIGILAW 343 (PAT)

Narendra Kumar Yadav v. State Of Bihar

2014-03-12

CHAKRADHARI SHARAN SINGH

body2014
ORDER 1. Petitioner in the present writ application seeks quashing of the letter dated 24.4.2012 ( Annexure-1), whereby, his claim for payment of back wages for the period 31.7.2007 to 30.12.2009, during which he remained out of service because of an order of compulsory retirement which was subsequently set aside by the appellate authority; has been rejected. Petitioner also seeks direction to the respondents to pay to him salary for 22 days which was wrongly withheld by the respondents, without any authority and procedure. 2. Facts in the present writ applications are not in dispute at all. 3. The petitioner was appointed as Technical Officer (Mechanical) in the year 1974 after following the due process of selection in Patna Industrial Area Development Authority. On creation of North Bihar Industrial Area Development Authority, Muzaffarpur ( hereinafter referred to as the “NBIADA”) the Industrial Area, Barauni was transferred from Patna Industrial Area Development Authority to NBIADA and the petitioners service was accordingly transferred to NBIADA in the year 1975. The petitioner was duly promoted to the post of Deputy Development Officer on the recommendation of Bureau of Public Enterprises, which promotion was confirmed on 17.1.1984. Subsequently, the petitioners were promoted to the post of Development Officer with effect from 15.6.1995. After bifurcation of the State of Bihar, the three Industrial Area Development Authorities which fell in remaining Bihar after creation of State of Jharkhand were merged in the year 2003 to form BIADA (Bihar Industrial Area Development Authority) and the petitioner, thus, became employees of BIADA. The petitioner was thereafter, transferred to the post of Development Officer, Regional office, Darbhanga vide memo no. 1152 dated 12.5.2007 with a direction to perform the additional work of Executive Director. 4. It is the petitioners case that without any rhyme and reason and without following any procedure, 22 days petitioners salary was directed to be deducted by a memo issued on 28.6.2007. Within a fortnight thereafter, without following any procedure the Managing Director, BIADA vide an order dated 12.7.2007 compulsory retiring the petitioner from service on 31.7.2007. This fact is not in dispute that before passing the order dated 31.7.2007, no proceeding was initiated nor any departmental enquiry conducted. Aggrieved by the said order dated 12.7.2007 the petitioner approached this Court by filing CWJC No. 13038 of 2007. This fact is not in dispute that before passing the order dated 31.7.2007, no proceeding was initiated nor any departmental enquiry conducted. Aggrieved by the said order dated 12.7.2007 the petitioner approached this Court by filing CWJC No. 13038 of 2007. The writ petition was, however, disposed of in terms of an order dated 16.4.2009 passed in CWJC No. 8382 of 2007, whereby, in similar circumstance other employees of BIADA were required to pursue their appeal before the appellate authority which the petitioners had already preferred. The appellate authority allowed the petitioners appeal no. 53 of 2008, vide an order dated 21.12.2009, relevant portion of which reads as follows:- “Thus, before issue of the said consolidated charge sheet on 28.5.2007, the authorities were already convinced that charges had been proved and that termination of service was in order. It is like a second show cause notice which is issued after establishment of charges in a duly conducted departmental proceeding. It is not in the nature of a memo of charge which is issued along with a statement of charges and a memo of evidence. The satisfaction of the authority to conduct a departmental proceeding and order or intention to appoint a conducting office has also been not recorded along with this so called charge sheet or at any other stage. In view of the facts mentioned above, I come to the conclusion that no departmental proceeding was conducted before passing the order of compulsory retirement. Hence, I am constrained to allow the appeal and set aside the order of compulsory retirement passed by M.D. on 12.7.2007.” 5. Evidently, the appellate authority allowed the appeal as it found that the order of compulsory retirement was passed on certain charges without holding any departmental proceeding. Petitioners thereafter, submitted their joining on 31.12.2009 which was accepted vide memo No. 416 dated 28.1.2010. It is the petitioners case that that he was directed to submit his joining within a period of three days in Regional Office, Muzaffarpur and he, accordingly, submitted his joining on 29.1.2010 on the post of Development Officer. The petitioner thereafter, made several requests for payment of his back wages for the period during which he was compelled to remain out of service from 31.7.2007 to 30.12.2009 by virtue of an illegal order of compulsory retirement. He represented before the authority in this regard on 17.2.2012. The petitioner thereafter, made several requests for payment of his back wages for the period during which he was compelled to remain out of service from 31.7.2007 to 30.12.2009 by virtue of an illegal order of compulsory retirement. He represented before the authority in this regard on 17.2.2012. He also made representation for payment of salary for 22 days which was withheld in the month of June, 2007 illegally. The petitioner, after attaining the age of superannuation retired on 29.2.2012. He is said to have made representation after his superannuation also in this regard. Thereafter, the petitioners representation for back wages came to be rejected by order dated 24.4.2012, which is under challenge in the present application. 6. This is to be noted that the petitioner has made specific averment in his representation before the authorities that he was not gainfully employed else where during the period he remained out of service because of the order of compulsory retirement, which finally came to be set aside by the appellate authority. Such statement has been made in the present writ applications also in Paragraph 22, which has not been denied in the counter affidavit filed on behalf of the BIADA. This is also to be noted that after the order of compulsory retirement was set aside by the appellate authority on the ground that no proceeding was initiated before passing of the order, BIADA did not elect to initiate any departmental proceeding and allowed the petitioner to retire after attaining the age of superannuation. 7. In the counter affidavit filed on behalf of BIADA, no factual assertions made in the writ application have been denied. It has been stated, however, in the counter affidavit that the petitioner was rightly not allowed payment of back wages as in similar circumstance, in number of matters relating to other employees, the benefit was not granted. It has also been contended that since appellate authority did not grant the petitioners back wages and, therefore, he was not entitled for back wages for the period in question, particularly since he did not challenge the order of the appellate authority. As regards, the petitioners claim for payment of salary for 22 days in the month of June, 2007, it has been stated that in the earlier writ application i.e. CWJC No.3828 of 2007, the petitioner had prayed for quashing memo no. As regards, the petitioners claim for payment of salary for 22 days in the month of June, 2007, it has been stated that in the earlier writ application i.e. CWJC No.3828 of 2007, the petitioner had prayed for quashing memo no. 2191 dated 28.6.2007 and had also prayed for giving all consequential benefits. According to the respondents, the prayer for consequential benefits would include salary for 22 days which relief was not granted by this Court vide order dated 5.5.2009 and therefore, the claim for payment of salary for period of 22 days is deemed to have been refused as per the principles enumerated in Explanation VI to Section 11 of the Code of Civil Procedure. It has been stated that payment of salary for the said period of 22 days was withheld due to negligence and dereliction in performance of duty by the petitioner vide letters dated 15.6.2007 and 21.6.2007 respectively, which have not been challenged. 8. Mr. Bindyachal Singh, learned counsel appearing on behalf of the petitioner contended that the petitioner was kept out of service during the period in question by virtue of an order of compulsory retirement which was held to be illegal, subsequently by a competent appellate authority. After the said order of compulsory retirement was set aside by the appellate authority, the BIADA neither initiated any disciplinary proceeding against the petitioner on the ground of any misconduct nor it chose to question the legality of the order of the appellate authority in accordance with law. He contends that there cannot be any valid and justifiable reason to deny the petitioners back wages for the period during which he was kept out of service, because of an illegal order of compulsory retirement. 9. Mr. Lalit Kishore, learned Senior counsel appearing on behalf of the respondent- BIADA has on the other hand, contended that on petitioners reinstatement in view of the appellate order, the he would not become entitled to back wages automatically. He has contended that the appellate authority did not allow the petitioner payment of back wages and therefore, he having accepted the said order of the appellate authority, cannot claim now for payment of back wages. 10. Reliance has been placed by him upon an order of this Court dated 8.4.2011 passed in LPA No. 684 of 2010, wherein this Court held as follows:- “7. 10. Reliance has been placed by him upon an order of this Court dated 8.4.2011 passed in LPA No. 684 of 2010, wherein this Court held as follows:- “7. It is true that the appellant in his representation stated that he was not gainfully engaged during the period he was under compulsory retirement. It is also difficult for an employee to prove the negative that he was not under employment. The appellant had contended that he was pursuing his remedy by way of writ petition. The respondent has not produced any materials to show that the appellant was gainfully employed. We find the learned Single Judge noticed in his order that the MD, BIADA stated that during the period of compulsory retirement of the appellant, other persons were engaged on payment to discharge the work that used to be performed by him. Taking into consideration that during the intervening period that the appellant had remained out of employment as some other persons were engaged to perform his work, we are not inclined to direct the BIADA to make payment of back wages.” 11. He has also placed heavy reliance on Supreme Court Judgment reported in (2009) 3 SCC 124 ( Novartis India Ltd. Vs. State of West Bengal and others) to contend that back wages cannot be granted automatically upon setting aside an order of termination and burden of proof that an employee remained unemployed would be on the employee, keeping in view the provisions contained in Section 106 of the Evidence Act, 1872. Paragraphs 21 and 22 of the said judgment are being quoted hereinbelow upon which reliance has been placed by Mr. Lalit Kishore, while opposing the petitioners prayer for grant of back wages:- “21. There can, however, be no doubt whatsoever that there has been a shift in the approach of this Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside and order of termination inter alia on the premise that the burden to show that the workmen was gainfully employed during interregnum period was on the employer. This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1872. This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1872. This Court in the matter of grant of back wages has laid down certain guidelines stating that therefore several factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 14 and 16 of the Constitution of India in case of public employment, etc. 22. It is also trite that for the purpose of grant of back wages, conduct of the workman concerned also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right.” 12. From the facts discussed above and the submissions made on behalf of the parties noted above and upon perusal of the order of the Managing Director dated 12.7.2007 by which the petitioner was ordered to be compulsorily retired, following facts emerge:- (i) The order of compulsory retirement dated 12.7.20077 was punitive in nature as it referred to altogether ten charges against the petitioner. There is no whisper of any opportunity having been given to these petitioners before passing of the said order dated 12.7.2007. (ii) The appellate authority vide order dated 21.12.2009 set aside the order of compulsory retirement holding that there was no departmental proceeding conducted before passing of the said order. (iii) The petitioner was reinstated in service thereafter, but no departmental proceeding was initiated against him with respect to charges for which he was compulsorily retired and because of which he remained out of service from 31.7.2007 till he joined on 31.12.2009. The petitioner retired after attaining the age of superannuation on 29.2.2012. 13. In view of the above, I hold that the order of the Managing Director, BIADA requiring the petitioner to compulsorily retire with effect from 31.7.2007 having been passed without any departmental inquiry was totally unauthorized, illegal and beyond jurisdiction and therefore, non est in the eye of law. The petitioner retired after attaining the age of superannuation on 29.2.2012. 13. In view of the above, I hold that the order of the Managing Director, BIADA requiring the petitioner to compulsorily retire with effect from 31.7.2007 having been passed without any departmental inquiry was totally unauthorized, illegal and beyond jurisdiction and therefore, non est in the eye of law. Further, as no proceeding was initiated with respect to any of the charges referred to in the order of compulsory retirement, the petitioner cannot be held liable for any such charge. He was made to remain out of service because of an order which was wholly unauthorized, illegal and beyond jurisdiction. In my opinion, the petitioner cannot be denied back wages for such period. This is to be kept in mind that the petitioner in his representations claimed that he was not gainfully employed during the period in question, which aspect has not been dealt with in the impugned order, while rejecting the petitioners? claim. The statement in this regard made in paragraph 22 of the writ application has also not been denied. In my opinion, therefore, the Supreme Court judgment in Case of Navartis India Ltd. Vs. State of West Bengal does not come in aid to the plea made on behalf of the respondent-BIADA. This is to be noted that the Supreme Court in case of Novarties India Ltd. (supra) has held that in the matter of grant of back wages, several factors are required to be considered including the nature of appointment; the mode of recruitment; length of service and whether the appointment was in consonance with Articles 14 and 16 of the Constitution of India in cases of public employment etc. In the present case no dispute has been raised in this regard on behalf of the respondent-BIADA. 14. This is also to be noted that the judgment of the Supreme Court in Navartis India Ltd Vs. State of West Bengal ( supra) has been considered in a recent judgment of Supreme Court reported in (2013) 10 SCC 324 (Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya). 14. This is also to be noted that the judgment of the Supreme Court in Navartis India Ltd Vs. State of West Bengal ( supra) has been considered in a recent judgment of Supreme Court reported in (2013) 10 SCC 324 (Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya). The Court, dealing with the situation of an employee dismissed or removed from service has held that 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 by relieving an employer all the obligations to pay back wages including the emoluments. The Court held that if an employer wanted to deny back wages to the employees or contest his entitlement to get his consequential benefits then it was for him to specifically plead and prove that during intervening period the employees was gainfully employed and was getting some emoluments. Relevant portion of paragraph 22 of the judgment is being extracted hereinbelow for ready reference:- “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 put for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removing or his 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 letters 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 form the relatives and other acquaintance to avoid starvation. These sufferings continue till 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.” 15. 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.” 15. Paragraph 38 of the judgment of the Apex Court in case of Deepali Gundeu Surwase Vs. Kranti Junior Adhyappak Mahavidyalaya (Supra), which summarizes the legal position, while referring to several previous judgments requires to be taken note of and is being quoted hereinbelow:- “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 the 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 than 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. 38.4. It is always easier to prove a positive fact than 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. 38.4. The cases in which the Labour 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 punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. 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 Article 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 employer and the sufferer is the 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. 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. 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 finality 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-à-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 course suggested in Hindustan Tin Works (P) Ltd. v. Employees. 38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal 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 7, 8 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. 16. In case of Deepali Gundeu Surwase (supra) their Lordships of Supreme Court have has held in most unambiguous terms that the courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer for his wrongdoings by relieving him of the burden to pay to the employee his dues in the form of full back wages. The Supreme Court, on the point of onus of proof as regards gainful employment or otherwise during the period the employee remained out of service, has held in this case that once the employees pleaded that he was not gainfully employed elsewhere the onus would be upon the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 17. In view of the law laid down by the Apex Court in case of Deepali Gundu Surwase (supra), the submission on behalf of the respondent-BIADA that the fact that petitioner was not gainfully employed was to be established by the petitioner in the present case cannot be accepted. This is reiterated that the petitioner?s statement made in the writ application that he was not gainfully employed during the period in question has not been controverted. 18. Further, petitioner?s salary for 22 days for the month of June, 2007 was apparently withheld without any procedure and without any authority, in my view, therefore, the petitioners would be entitled for salary for the said period also. 19. I am accordingly, of the view, that the impugned order dated 24.4.2012 (Annexure-10) refusing the petitioners claim for their back wages during the period 13.7.2007 to 20.12.2009 is unsustainable and is, accordingly, quashed. The respondent No.3 is directed to pay to the petitioner all salaries and allowances which he would have been entitled to had there been no order of compulsory retirement; for the period 13.7.2007 to 30.12.2009 along with interest at the rate of 6% per annum. The petitioner is also held entitled to the salary of 22 days which was withheld without any procedure and authority and accordingly the respondent No.3 is directed to pay the same amount with same interest of 6% per annum. The interest shall be calculated from the date the amount became due till their actual payment. The payment must be made within a period of six months from the date of receipt/production of a copy of this order. 20. This application is allowed accordingly.