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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 636 of 2024
---
Om Prakash Sharma, son of Late Ram Rikeshpal Sharma,
resident of Aryapuri, Ratu Road, P.O.- Ranchi, P.S.- Sukhdeo
Nagar, District- Ranchi ... ... Appellant
Versus
1. Bharat Coking Coal Limited (B.C.C.L.), Dhanbad
2. The Chairman-cum-Managing Director, B.C.C.L.,
Dhanbad
3. The Chief General Manager, Bharat Coking Coal Limited,
Dhanbad
4. The Deputy Personnel Manager, Bharat Coking Coal
Limited, Dhanbad
5. The Project Officer, Monidih under Sijua Sub Area,
B.C.C.L., Dhanbad
6. The Deputy Chief Personnel Manager, Area No. 5, Sijua
Sub Area, B.C.C.L., Dhanbad
.... ... Respondents
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJESH SHANKAR
---
For the Appellant : Mr. Atanu Banerjee, Advocate
For the Respondents : Mr. Anoop Kumar Mehta, Advocate
---
Order No. 03 Date: 07.08.2025
Per : Rajesh Shankar, J. :
The present interlocutory application has been filed under
Section 5 of the Limitation Act, 1963 to condone the delay of 121
days in filing the instant Letters Patent Appeal challenging the
order/judgment dated 20.06.2024 passed by the learned Single
Judge in W.P.(L) No. 6295 of 2014.
2. Learned counsel for the respondents does not oppose the
said application.
3. Having heard learned counsel for the parties and for the
reasons stated in the present interlocutory application, the delay of
121 days in filing the instant Letters Patent Appeal is condoned.
4. I.A. No. 3985 of 2025 is accordingly allowed.
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5. The present Letters Patent Appeal is directed against the
order/judgment dated 20.06.2024 passed in W.P. (L) No. 6295 of
2014 whereby the said writ petition has been dismissed rejecting
the appellant's claim to grant him full back wages w.e.f.
26.02.1975.
6. Learned counsel for the appellant submits that the
appellant was appointed by the respondents way back in the year
1972, however he was dismissed from service on 26.02.1975 on
account of lodging a criminal case being R.C. Case No. 04 of 1974
by the Central Bureau of Investigation (CBI). The appellant was
convicted in the said case vide judgment dated 28.07.1994 passed
by the Special Judicial Magistrate, CBI, Ranchi, however the said
court was pleased to release all the convicts on admonition under
Section 3 of the Probation of Offenders Act, 1958
with an observation that if the respondents so think, they may
sympathetically consider the case of the appellant regarding his
reinstatement in service along with the cases of co-convicts
namely Lakshmi Prasad Tiwari and D.S. Shrivastava. Thereafter, an
appeal was filed before the 4th Additional Judicial Commissioner,
Ranchi against the judgement of conviction and the said court,
vide order dated 23.02.1998, remanded the matter to the trial
court where on the request of the accused persons that they were
satisfied with the judgment dated 28.07.1994 and they did not
want to linger the matter any further, the trial court closed the
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case vide order dated 17.04.2001.
7. It is contended that one of the co-convicts
namely, Lakshmi Prasad Tiwari whose case was on an identical
footing to that of the appellant, was reinstated in service, but the
appellant was not reinstated.
8. It is also submitted that aggrieved with the said situation,
the appellant filed a writ petition before this Court being
W.P. (S) No. 2819 of 2002 which was disposed of vide order dated
22.04.2004 directing the appellant to establish his identity before
the concerned respondent by filing all the supporting documents.
Thereafter, pursuant to the notice vide Reference No.
GM/SA/RD/3353 dated 10.07.2004, the appellant appeared before
the General Manager, Sijua Area, Bharat Coking Coal Limited,
Dhanbad on 23.07.2004 and produced all the relevant documents
to prove his identity and appointment as a workman in the
company, however his claim was rejected by the said authority
vide order dated 04.08.2004 as contained in Ref. No. PD/3813.
9. Learned counsel for the appellant further submits that the
appellant thereafter filed another writ petition being W.P.(S) No.
5160 of 2006 before this Court, but the same was dismissed vide
order dated 13.09.2006 observing that in view of the nature of the
relief sought i.e., regarding identity of the appellant, the same
could not be granted to him under the writ jurisdiction. However,
the appellant was given liberty to approach the appropriate
authority or to take any prescribed legal step for proving his
identity to the satisfaction of the respondents.
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10. It is also submitted that subsequently an industrial dispute
was raised by the Rashtriya Mazdoor Union for reinstatement of
the appellant and thereafter the said dispute was referred for
adjudication before the Central Government, Industrial Tribunal
No. 1, Dhanbad vide notification dated 29.09.2009 with following
schedule:
"(i) Whether the demand of the Rashtriya Mazdoor
Union for reinstatement of Shri O.P. Sharma (the
appellant herein), Weigh Bridge Clerk in service by
the management of Sijua Area of M/S BCCL is
justified & legal?
(ii) To what relief is the workman concerned
entitled?"
11. The matter was registered as Reference Case No. 53 of
2009 which was decided vide award dated 25.01.2014 holding that
the demand of the Union for reinstatement of the appellant in
service was justified and legal and the appellant was directed to
be reinstated in job without any back wages.
12. It is further submitted that the appellant then filed writ
petition being W.P.(L) No. 6295 of 2014 claiming full back wages
from 26.02.1975 with all consequential benefits and statutory
interest at the rate of 15% per annum, however the said writ
petition was dismissed vide impugned order dated 20.06.2024.
13. It is also contended that co-convict namely Lakshmi Prasad
Tiwari was taken back into service, but the appellant was left out
and thus he was discriminated. Though the identity of the
appellant was duly proved, yet he remained out of service on
account of omissions on the part of the respondents to act
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in accordance with law and as such, he is entitled to get full
back wages.
14. It is lastly argued by the learned counsel for the appellant
that the concerned respondents ruined the life and personal liberty
of the appellant's family as his wife worked as a maid servant for
livelihood and the appellant remained jobless since 26.02.1975 in
the hope of job in the B.C.C.L.
15. On the contrary, learned counsel for the respondents
submits that the appellant was reinstated in service on
sympathetic ground and as such he was not entitled to any back
wages, hence the learned Single Judge has rightly dismissed the
writ petition vide impugned order dated 20.06.2024 and the same
needs no interference by this Court.
16. Heard learned counsel for the parties and perused the
materials available on record.
17. The appellant is aggrieved with the denial of full back
wages for the period he remained absent from duty on account of
his dismissal from service w.e.f. 26.02.1975.
18. It transpires from the record that the appellant and other
co-accused persons were dismissed from service due to lodging of
criminal case being R.C. Case No. 04 of 1974 by the CBI for the
offences under Section 409 and 120(B) of I.P.C. and the said
criminal case culminated in conviction of all the accused persons
vide judgment dated 28.07.1994, however they were released on
admonition under Section 3 of the Probation of Offenders Act,
1958. The CBI court also observed that their cases with respect to
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reinstatement in service could be considered by the employer
sympathetically.
19. The said judgment of the trial court was set aside by the
appellate court and the matter was remanded to the trial court for
fresh hearing after due notices to the parties. However, the
accused persons filed a petition before the trial court stating that
they were satisfied with the judgment dated 28.07.1994 passed by
the trial court and that they did not want to linger the matter any
further and thereby trial court closed the case vide order dated
17.04.2001.
20. Learned counsel for the appellant has strenuously argued
that a similarly situated person namely Lakshmi Prasad Tiwary was
taken back in service, however the appellant was left out and thus
he was discriminated.
21. The appellant has not brought on record sufficient material
to substantiate his claim either before the learned Single Judge or
before this Court that his case was similarly situated to that of
Lakshmi Prasad Tiwari. Moreover, on bare perusal of the order
dated 22.04.2004 passed in W.P.(S) No. 2819 of 2002, it appears
that a counter affidavit was filed in the said case on behalf of the
respondents stating that Lakshmi Prasad Tiwari was asked to
establish his identity, which he proved and only thereafter, he was
reinstated in service. On the other hand, since the identity of the
appellant was doubtful, he was asked to establish the same,
however, he failed to do so.
22. In the case of Novartis India Limited Vs. State of W.B
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& Others reported in (2009) 3 SCC 124, the Hon'ble Supreme
Court has held as under: -
"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 an order of
termination inter alia on the premise that the burden to show
that the workman 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 the matter of grant of back wages has laid down
certain guidelines stating that therefor 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 cases 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."
23. In the case of Banshi Dhar Vs. State of Rajasthan &
Another reported in (2007) 1 SCC 324, the Hon'ble Supreme
Court has held that no hard-and-fast rule can be laid down with
regard to grant of back wages. Each case has to be determined on
its own facts.
24. Thus, it is a trite law that grant of back wages is not
automatic, rather the burden of proof is upon the concerned
workman that he was not gainfully employed during interregnum
period. Moreover, certain guidelines have been laid down by the
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apex court in the matter of grant of back wages wherein it has
been stated that several factors are required to be taken into
consideration before grant of back wages including the nature of
appointment, the mode of recruitment, the length of service and
whether the appointment in cases of public employment is in
consonance with the Articles 14 & 16 of the Constitution of India.
The grant of back wages depends on the facts and circumstance of
each case and it cannot be claimed as a matter of right.
25. In the case in hand, the appellant served in the
respondent-BCCL only for the period from 1972 to 1974 and
thereafter he was out of service due to lodging of a criminal case
by the CBI. Though the appellant was convicted in the said
criminal case, however he was released on admonition under
section 3 of the Probation of Offenders Act, 1958. The appellant
remained out of service not due to the fault of the respondents,
rather due to pendency of the criminal case against him as well as
due to the fact that after being released by the trial court, he
failed to prove his identity before the respondents. Had the
appellant proved his identity immediately after release from
criminal case by adducing sufficient materials, he would have been
reinstated in service with co-convict Lakshmi Prasad Tiwari.
However, his identity was proved after full-fledged inquiry
conducted by the Central Government Industrial Tribunal No. 1,
Dhanbad in Ref. Case No. 53 of 2009. Thus, the delay so
occasioned in passing of the order of reinstatement, cannot be
attributed to the respondents.
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26. Moreover, it is not a case of illegal or wrongful termination
of the appellant, rather he has been reinstated in service on
sympathetic ground. The normal rule is that the back wages is
granted if the termination of an employee is subsequently found
illegal or wrongful, however in the present case, the termination of
the appellant was not held unjustified by the Tribunal. In fact, the
order of reinstatement was issued on the ground that the
appellant subsequently proved his identity.
27. In view of the aforesaid discussion, we do not find any
infirmity in the impugned order dated 20.06.2024 passed in
W.P.(L) No. 6295 of 2014.
28. The appeal being devoid of merit, is accordingly, dismissed.
(Tarlok Singh Chauhan, C.J.)
(Rajesh Shankar, J.)
A.F.R.
Ritesh/
