JUDGMENT : With consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality. I.A. No. 3281 of 2021 2. Heard the parties. 3. This Interlocutory Application has been filed on behalf of appellants for expunging the name of sole respondent, who is said to have died, however, exact date of his death is not available with the appellants. 4. Be that as it may, in the facts and circumstances of the case and the statements made in the Interlocutory Application, the legal representatives fully described in paragraph 6 of the Interlocutory Application is hereby ordered to be substituted in place of the sole respondent after expunging his name. 5. This order would be subject to any objection if raised in future by any aggrieved person. 6. I.A. No. 3281 of 2021 is allowed. I.A. No. 1983 of 2020 7. This Interlocutory Application has been filed for condoning the delay of 314 days, which has occurred in preferring this appeal. 8. Heard learned counsel appearing for the parties. 9. Having regard to the averments made in this application, we are of the view that the appellants were prevented by sufficient cause from preferring the appeal within the period of limitation. 10. Accordingly, I.A. No. 1983 of 2020 is allowed and delay of 314 days in preferring the appeal is condoned. L.P.A. No. 99 of 2020 11. The instant intra-court appeal is preferred against the order/judgment dated 31.01.2019 (as modified vide order dated 20.02.2019) passed by learned Single Judge in W.P. (S) No. 7690 of 2011, whereby and whereunder the learned Single Judge while allowing the writ petition has held the respondent-writ petitioner entitled for the salary for the intervening period and accordingly directed the appellants-BCCL to release the salary within a period of six weeks from the date of receipt/production of the copy of the order. 12. The brief facts of the case, which are required to be enumerated herein for proper adjudication of the lis, are as under: The writ petitioner was appointed as Fitter in the respondent’s company-Bharat Coking Coal Limited (hereinafter referred to as ‘BCCL’) and accordingly joined on 01.04.1972. 12. The brief facts of the case, which are required to be enumerated herein for proper adjudication of the lis, are as under: The writ petitioner was appointed as Fitter in the respondent’s company-Bharat Coking Coal Limited (hereinafter referred to as ‘BCCL’) and accordingly joined on 01.04.1972. It is the case of the writ petitioner that at the time of appointment though he had supplied all details including the educational qualification enclosing copy of Middle Board Certificate, wherein his date of birth was recorded as 10th June, 1953 but the BCCL-management without assigning any reason and without disclosing the writ petitioner had recorded his age as 22 years. However, in due course in the year 1987, a document known as ‘Seva Abhilekh’ was issued on 09.06.1987, wherefrom he came to know that in the relevant column his date of birth has been mentioned as 01.01.1948 and in its adjacent column it was recorded 22 years as on 01.04.1972, the date on which he joined the services of the BCCL, which itself was contrary to each other because if the age of 22 years is taken to be on 01.04.1972, then his actual date of birth as per mathematical calculation comes to 01.04.1950. Pursuant thereto, the writ petitioner made objection on the aforesaid particulars as mentioned in the ‘Seva Abhilekh’, but it was not redressed and notice of retirement dated 10.08.2007 was issued mentioning therein that the writ petitioner is going to retire w.e.f. 31.12.2007. Aggrieved with the notice of pre-mature retirement, the writ petitioner approached this Court by invoking power conferred under Article 226 of the Constitution of India by filing writ petition being W.P. (S) No. 5901 of 2007, taking the plea that the case of the petitioner is covered by the Full Bench Judgment passed in Kamta Pandey Vs. M/s BCCL [ 2007 (3) JCR 681 ], for the following reliefs : (i) For quashing the notice of retirement dated 10.08.07 issued under the signature of respondent no.2, whereby and whereunder the petitioner has been sought to be retired w.e.f. 31.12.07 afternoon, which is illegal & arbitrary amounting to unauthorized curtailment of five years service in as much he would be attaining the actual age of retirement in June, 2003, in terms with date of Birth recorded in Bihar School Examination Board (BSEB) certificate as the 10th June, 1953. (ii) Further to declare and hold that since the legal & actual date of birth as recorded in the BSEB certificate is 10th June, 1953 and since the age of retirement prescribed in respondent’s institution is 60 years, the petitioner is entitled to retire w.e.f. 31.12.07 vide impugned order dated 10.08.07 treating his imaginary date of birth as 1.1.1948, as illegal, arbitrary, much less punitive and thereby unconstitutional being violative of Articles, 14,19, 31 and 31(2) of the Constitution of India, besides in express violation of Instrument No.76 of NCWA-III and authoritative judicial pronouncement of this Hon’ble Court. The writ petition was allowed vide order dated 28.05.2009 and the matter was remitted to the respondents-authorities to re-consider the matter in the light of correct date of birth. However, when the order passed by the writ Court in W.P. (S) No. 5901 of 2007 was not complied with, the writ petitioner filed a contempt case being Cont. Case (Civil) No. 780 of 2009, which was dismissed vide order dated 21st February, 2015 taking into consideration order dated 4th March, 2014 passed by the respondents-BCCL, whereby necessary correction in the date of birth, as per direction of the order passed by writ Court in W.P. (S) No. 5901 of 2007 was made in his service record and his date of birth was recorded, as 10th June, 1953 as per certificate of Bihar School Examination Board. In the meanwhile, an intra-court appeal, being L.P.A. No. 506 of 2009 was filed by the management-BCCL, which was dismissed vide order dated 15th July, 2010. Pursuant thereto, the respondents-BCCL passed office order dated 18.09.2010, whereby the petitioner was reinstated in service with immediate effect but he was denied back wages on the principle of ‘no work no pay’. Aggrieved with the order of denial of back wages passed vide order dated 18.09.2010, the petitioner again approached this Court by filing writ petition being W.P. (S) No. 7690 of 2011, which was allowed vide order dated 31.01.2019 (as modified vide order dated 20.02.2019), which is the subject matter of present intra-court appeal. 13. Mr. Aggrieved with the order of denial of back wages passed vide order dated 18.09.2010, the petitioner again approached this Court by filing writ petition being W.P. (S) No. 7690 of 2011, which was allowed vide order dated 31.01.2019 (as modified vide order dated 20.02.2019), which is the subject matter of present intra-court appeal. 13. Mr. Amit Kumar Das, learned counsel for the appellants-BCCL referring to the proposition laid down in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others [ (2013) 10 SCC 324 ] submitted that the writ petitioner is not entitled for back wages as no pleading to the effect that he was not gainfully employed during the period when he was out of service, has been pleaded but the learned Single Judge without considering the aforesaid aspect of the matter held the petitioner entitled for the back wages for the intervening period, which cannot be said to be sustainable in eye of law. Accordingly, the same may be quashed and set aside. 14. This Court has heard learned counsel for the appellants, perused the documents available on record as also finding recorded by learned Single Judge in the impugned order. Admitted facts in this case is that the respondents-management had issued notice of premature retirement dated 10.08.2007 treating his date of birth to be 01.01.1948 while the writ petitioner claimed his date of birth to be 10th June, 1953 based upon the certificate issued by the Bihar School Examination Board. Aggrieved thereof, the writ petitioner approached this Court by filing W.P. (S) No. 5901 of 2007, which was allowed vide order dated 28.05.2009 directing the BCCL to re-consider the matter and take decision with respect of correct the date of birth within a period of three months. The aforesaid order was not complied with, therefore, the writ petitioner filed a contempt case being Cont. Case (Civil) No. 780 of 2009, which was ultimately dismissed vide order dated 21.02.2015 in pursuance to order dated 4th March, 2014 passed by the management whereby necessary correction in the date of birth was made in the service record of the writ petitioner by correcting it as 10th June, 1953. During pendency of the contempt petition, the management had also filed intra-court appeal being L.P.A. No. 506 of 2009 which was dismissed vide order dated 15th July, 2010. During pendency of the contempt petition, the management had also filed intra-court appeal being L.P.A. No. 506 of 2009 which was dismissed vide order dated 15th July, 2010. Pursuant thereto, the respondents-BCCL passed office order dated 18.09.2010, whereby the petitioner was reinstated in service with immediate effect but he was denied back wages on the principle of ‘no work no pay’. Aggrieved with the order of disentitlement of back wages dated 18.09.2010, the petitioner again approached this Court by filing writ petition being W.P. (S) No. 7690 of 2011, which was allowed vide order dated 31.01.2019 entitling the petitioner for back wages, which is the subject matter of present intra-court appeal. 15. This Court before entering into the legality and propriety of the impugned order, deem it fit and proper to refer certain legal position pertaining to entitlement of back wages by the workman, which has been considered by Hon’ble Apex Court (three judges) in the case of Union of India and Others Vs. K.V. Jankiraman reported in (1991) 4 SCC 109 wherein it has been held that although no work no pay is the normal rule, but it has got exception and it will not be applicable in a case where the employee was willing to work but had not been allowed to discharge the duty and if such a condition would be there, the principle of no work no pay will not be applicable. In Commissioner, Karnataka Housing Board Vs. C. Muddaiah reported in (2007) 7 SCC 689 it has been held at paragraph 34 thereof which reads hereunder as :- “34. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering 'as if he had worked'. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected.” In the case of Jasmer Singh Vs. State of Haryana and Another reported in (2015) 4 SCC 458 at paragraph 21 and 22 thereof it has been held which reads hereunder as :- “21. The said relief in favour of the appellant-workman, particularly the full back wages is supported by the legal principles laid down by this Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, wherein the Division Bench of this Court to which one of us was a member, after considering three-Judge Bench decision, has held that if the order of termination is void ab initio, the workman is entitled to full back wages. 22. The relevant para of the decision is extracted hereunder:- "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 concerned employee, 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. Not only the concerned employee, 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 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. 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. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments." Thus, it is evident that larger Bench of the Hon’ble Apex Court in the case of Union of India and Others Vs. K.V. Jankiraman (supra) has held that although no work no pay is the normal rule, but it has got exception and it will not be applicable in a case where the employee was willing to work but had not been allowed to discharge the duty and if such a condition would be there, the principle of no work no pay will not be applicable. Likewise, in Commissioner, Karnataka Housing Board Vs. C. Muddaiah (supra), similar view has been taken holding therein that an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law, cannot be said to be acceptable. Likewise, in Commissioner, Karnataka Housing Board Vs. C. Muddaiah (supra), similar view has been taken holding therein that an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law, cannot be said to be acceptable. The judgment rendered by Hon’ble Apex Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others (Supra) reference of which has been mentioned at paragraph 22 of the judgment rendered in Jasmer Singh (supra) holding that the onus lies upon the employer who wants to deny back wages to the employee or contest his entitlement to get consequential benefits to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Therefore, this Court has proceeded to examine in the context of the present factual scenario as to whether the principle of “no work no pay” will be applicable herein. Admittedly, in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others (Supra), the matter pertains to retrenchment/termination of a workman under the provisions of section 25 F of the Industrial Dispute Act, 1947 and in that factual aspect the Hon’ble Apex Court has been pleased to hold that in case of setting aside the order of termination which has been based on invoking jurisdiction conferred under Section 25F of the Industrial Dispute Act the back wages is required to be given but for that the employer is required to take specific pleading with respect to gainful employment during the intervening period and if such plea would be taken the same is to be decided by the employer. Thus, it is evident that the case pertaining to Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others (Supra) relates to the labour dispute arising out of Reference Case. Further it appears that when the Hon’ble Apex Court has been pleased to laid down the proposition about deciding the pleading, if made by employer about gainful employment by the employee during the period when he was out of service is required to be decided by the employer which requires adjudication and adjudication is only by the Labour Court or the Tribunal. As such there is no ambiguity that merely taking the plea of gainful employment and its contest is not sufficient rather its adjudication is having the paramount consideration; meaning thereby if such plea would be taken and it is being adjudicated by the learned Court or the Tribunal as the case may be, evidence would be led by the forum for reaching to the conclusion on the fact that the workman was not gainfully employed. 16. In the case in hand, the writ petitioner directly approached to the writ Court invoking writ jurisdiction conferred under Article 226 of the Constitution of India questioning the notice of pre mature retirement dated 10.08.2007 and the learned Single Judge of this Court vide order dated 28.05.2009 with certain directions holding therein remitting the matter back to the authorities concerned to re-consider and correct the date of birth in the light of observations made and take a decision within a period of three weeks from the date of receipt/production of copy of the order. It is evident from the judgment passed by the writ Court that such judgment is passed by taking into consideration the judgment rendered by Full Bench of the Court in Kamta Pandey (supra) wherein it has been held that the date of birth recorded in the Matriculation Certificate duly authenticated by the Education Board is a conclusive proof of age and no other records, including service records and the learned Single Judge has reached to the conclusion that the writ petitioner has produced the matriculation certificate duly issued by Bihar School Examination Board and in view thereof the order of premature retirement has been quashed and set aside with remand of the matter to the authority concerned to take decision afresh. The aforesaid order has been affirmed by the Division Bench of this Court in L.P.A. No. 506 of 2009. Pursuant thereto the writ petitioner was reinstated in services but without back wages. The aforesaid order has been affirmed by the Division Bench of this Court in L.P.A. No. 506 of 2009. Pursuant thereto the writ petitioner was reinstated in services but without back wages. Thus, it is evident that on fact, the judgment rendered by Hon’ble Apex Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others (Supra) will not be applicable as the aforesaid case arises from the order passed by the management under Section 25 F of the Industrial Disputes Act, 1947 and considering that aspect of the matter law has been laid down holding the said persons who have been retrenched will be entitled for back wages subject to the condition that pleading to the effect that during the intervening period the workman was not gainfully employed but since herein the writ petitioner has filed writ under Article 226 of the Constitution of India questioning the notice of pre mature retirement which has been held to be illegal by the learned Single Judge vide order dated 28.05.2009 order passed in W.P. (S) No. 5901 of 2007, which has been affirmed by the Division Bench in intra court appeal being L.P.A. No. 506 of 2009 and in consequence thereof the order has been passed by the writ Court the question of raising the issue of pleading pertaining to gainful employed will be said to be not of worth because of the reason that under Article 226 of the Constitution of India the adjudication based on fact is not permissible and therefore, the judgment rendered in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others (Supra) will not be applicable. 17. 17. Further the specific observation has been made by learned Single Judge of this Court in W.P. (S) No. 5901 of 2007 taking into consider the judgment passed in Kamta Pandey (Supra) and when by taking aid of the said judgment the writ petition was allowed it will be construed to be an illegal action on the part of the authority denying back wages because they have acted contrary to the law laid down by the Full Bench of this Court and in that view of the matter it will be construed that writ petitioner was forcefully prevented from discharging his duty, which will be construed that he was willing to discharge his duty and under that circumstance the judgment rendered in Union of India and Others Vs. K.V. Jankiraman (supra) will be applicable in the case at hand wherein law has been laid down that no work no pay is the normal rule, but it has got exception and it will not be applicable in a case where the employee was willing to discharge the duty. In the case at hand, the petitioner was prevented from discharging his duty. In that circumstance he will be entitled for back wages. Further, the observation upon which the learned Single Judge has allowed the writ petition W.P. (S) No. 5901 of 2007 has also been taken in intra court appeal and therefore, now the BCCL cannot be allowed to distract the proposition laid down in the case of Union of India and Others Vs. K.V. Jankiraman (supra) about its applicability. 18. The respondent-management has reinstated the writ petitioner in service without questioning the order passed by the learned Single Judge and the Division Bench of this Court in W.P. (S) 5901 of 2007 and L.P.A. No. 506 of 2009 and without approaching before the before higher forum and reinstated the petitioner without any back wages which has been considered by the learned Single Judge to be illegal, which according to our considered view cannot be said to be suffering from any infirmity on the basis of discussions made hereinabove. 19. In view thereof and in the entirety of facts and circumstances of the case, the order passed by the learned Single Judge requires no interference. 20. Accordingly, the intra-court appeal fails and is dismissed.