Jharkhand High Court
Shivjatan Murmu vs State Of Jharkhand on 6 December, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 762 of 2022
Shivjatan Murmu................... Petitioner
Versus
1. State of Jharkhand
2. Superintendent of Police, Sahebganj
3. Deputy Inspector General of Police, Santhal Pargana Range, Dumka
4. Director General & Inspector General of Police,
Jharkhand, Ranchi.......... Respondents
......
Coram: The Hon'ble Mr. Justice Ananda Sen
......
For the Petitioner : Ms. Saumya Pandey, Advocate
For the Respondents : Ms. Divya, AC to SC-III
......
ORDER
C.A.V. on 20/10/2022 Delivered on 06/12/2022
5/ 06.12.2022. Heard learned counsel for the petitioner and learned counsel for the
respondents.
2. The petitioner, in this writ application, has prayed to quash the part
of the order dated 29.10.2021, whereby it has been ordered that the
petitioner will not be entitled for any back wages for the period from
02.02.2010 to 29.10.2021. Further, a prayer has been made to direct the
respondents to pay the back wages for the period from 02.02.2010 to
29.10.2021.
3. The petitioner was working as a Constable in Jharkhand Police. A
departmental charge sheet was issued to the petitioner on 21.07.2009,
alleging therein that he had married one Meena Soren but was not keeping
her with him as such, this conduct of the petitioner amounts to misconduct
and dereliction in duty and fraud. The petitioner took a defence that Meena
Soren was not married with him as they proposed to get married, but later
on, it came to light that Meena Soren is already married and her husband is
alive. The husband of Meena Soren and father of this petitioner objected the
marriage thus, the marriage was not solemnized. A departmental proceeding
was initiated and the petitioner was punished vide memo no. 274 dated
02.02.2010, by the Superintendent of Police, Sahibganj in a departmental
proceeding no. 05/2009. The petitioner preferred an appeal before the
Appellate Authority, which was also dismissed by a non-speaking order
dated 30.12.2010.
4. Aggrieve by both these orders, the petitioner approached this Court by
filing a writ petition being W.P. (S) No. 3945 of 2012. The aforesaid writ
petitioner was disposed of on 27.02.2021. This Court did not interfere with
the punishment order, but had set aside the appellate order and remitted
the matter back to the Appellate Authority to decide the appeal on merits
after assigning reasons. The Appellate Authority in compliance with the order
passed by this Court, modified the order of punishment. The punishment
imposed upon the petitioner by the Appellate Authority is stoppage of two
annual increments. Further, it was ordered that during the period he was
kept out of service, he will not be paid any back wages on the principle of 'no
work no pay'. This part of the order is under challenge in this writ
application.
5. Counsel for the petitioner submits that admittedly for no fault of the
petitioner, the petitioner was kept out of service. The order of the Appellate
Authority modifying the order of punishment from dismissal to stoppage of
two annual increments strengthen his case that he was wrongly dismissed
from service. When an employee is wrongly dismissed by the employer and
he is reinstated, he is entitled to get the back wages.
6. Counsel appearing on behalf of the respondents submits that as the
petitioner was out of service, it was decided by the Appellate Authority that
he is not entitled for any back wages for the period he was out of service.
7. The facts are admitted in this case. The petitioner was dismissed
pursuant to an order passed in the departmental proceeding on 02.02.2010.
His departmental appeal was allowed on 29.10.2021, whereby he was
reinstated and punishment was scaled down to that of stoppage of two
annual increments. An order was passed that he will not be paid back wages
for the intervening period on the principle of 'no work no pay'.
8. The principle of payment of back wages has been laid down by the
Hon'ble Supreme Court in catena of judgments. It is not necessary to deal
with each and every judgments on the aforesaid issue. Suffice it would be to
rely upon the judgment passed by the Hon'ble Supreme Court in the case of
"Deepali Gundu Surwase -versus- Kranti Junior Adhyapak Mahavidyalaya, reported in
(2013) 10 SCC 324." In para-38.1, the Hon'ble Supreme Court in the case of
"Deepali Gundu Surwase" (supra) has laid down the principles that in case of
wrongful termination of service, reinstatement with continuity of service and
back wages is the normal rule. It is necessary to quote para-38.1, 38.2 &
38.3 of the aforesaid judgment, which is as follows:-
"38.1. In case 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."
9. This principle was followed by the Hon'ble Supreme Court in the case
of "Jayantibhai Raojibhai Patel- versus- Municipal Council, Narkhed and Others, reported
in (2019) 17 SCC 184."
10. In this case, I find that if the Appellate Authority reinstated the
petitioner and the punishment of dismissal was converted to that of stoppage
of two annual increments meaning thereby, the Appellate Authority also felt
that the punishment of dismissal was absolutely harsh. Thus this dismissal
was not the proper punishment. When the proper punishment was not the
dismissal, inflicting such punishment of dismissal is nothing but doing
injustice to the petitioner and the punishment of termination can be said to
be a wrongful punishment, even if the charge is proved. Thus, the principle
laid down by the Hon'ble Supreme Court in Para-38.1 of the case of "Deepali
Gundu Surwase" (supra) must be followed in this case. Further, before this
Court and also by filing representation, the petitioner has specifically stated
that he was out of service and he was not gainfully employed, he has
discharge his onus. There is no contrary statement from the side of the
respondents.
11. Considering the aforesaid fact and the judgment of the Hon'ble
Supreme Court, I am inclined to allow this writ application. Accordingly, this
writ application is allowed. Consequently, the part of the order dated
29.10.2021, whereby it has been ordered that the petitioner will not be
entitled for any back wages for the period from 02.02.2010 to 29.10.2021, is
hereby quashed. The respondents are directed to pay the back wages for the
entire period, i.e. from 02.02.2010 to 29.10.2021, immediately to the
petitioner.
12. This writ application stands allowed.
(Ananda Sen, J.)
Mukund/cp.2
