Dinesh Baghora vs State Of M.P. Through Department ...
2021 Latest Caselaw 3527 MP

 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

                      W.A.No. 50 / 2021
       DINESH BAGORA Vs. STATE OF MP AND TWO OTHERS
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INDORE, Dated : 22/07/2021
      Heard through video conferencing.
      Mr. Aviral Vikas Khare, learned counsel for the
appellant.
      Mr. Aditya Garg, learned counsel for the respondent

No.1 - State.

Mr. Aniket Naik, learned counsel for the respondent Nos. 2 and 3.

I.A.No. 278/2021, is taken up seeking condonation of delay of 314 days.

Mr. Aniket Naik, learned counsel for the respondents opposed the said application. However, considering the averments of the I.A., we deem it proper to allow it and hear the matter on merits, on admission. Accordingly, I.A.278/2021 is allowed. The delay is condoned.

Heard on admission.

This intra-Court appeal takes exception to the order dated 05/02/2019 passed in W.P.No. 694/2016 whereby the learned Single Judge directed reinstatement of appellant, but declined him back wages.

Mr. Aniket Naik, learned counsel for the respondents submits that this appeal seeking back wages does not deserve admission because in the entire body of Writ Petition and Relief Clause, there was no foundation / averment relating to back wages.

Mr. Aviral Vikas Khare, learned counsel for the HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

W.A.No. 50 / 2021 DINESH BAGORA Vs. STATE OF MP AND TWO OTHERS

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appellant submits that in view of (1975) 1 SCC 770 Pasupuleti Venkateswarlu Vs. The Motor & General Traders, it is clear that the writ Court was competent enough to take care of subsequent events. In view of (2013) 10 SCC 324 Deepali Gundu Surwase Vs. Kranti Junior Adhyapak, Mahavidyalaya, whenever a termination order is held to be illegal, back wages are granted as a matter of course. Learned Single Judge has considered the question of grant of back wages and heard the parties on this aspect. Thus, in absence of any specific pleading regarding back wages also, this Court can grant relief in view of Relief claimed in para 7

(d) of the Writ Petition.

We have heard the parties on this aspect. There cannot be any quarrel on the point that writ Court was competent to take into account any subsequent event / change. However, admittedly, no subsequent change was brought to the notice of writ Court by amending the petition. There is no iota of pleading in the petition that after termination, the appellant remained out of employment or in other words, was not gainfully employed. There is no specific relief claimed for grant of back wages. In (2001) 1 SCC 73 State Bank of India Vs. Ram Chandra Dubey and others, the apex Court opined that if a relief claimed is not granted, shall be treated as rejected. Similarly, if a relief available was not claimed, shall be treated as abandoned. For claiming back wages, the minimum essential pleading / HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

W.A.No. 50 / 2021 DINESH BAGORA Vs. STATE OF MP AND TWO OTHERS

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averment must be there in the petition that after termination the employee is not gainfully employed. A specific relief for grant of back wages must be claimed. Relief 7 (d) is a vague relief, which reads as under :

"(d) This Hon'ble Court may further be pleased to grant any other relief(s) to the petitioner as it may deem fit in the facts and circumstances of the case."

The Supreme Court in (1998) 8 SCC 326 Chandigarh Administration Vs. Laxman Roller Flour Mills Pvt. Ltd., (2010) 10 SCC 693 Pyare Mohan Lal Vs. State of Jharkhand and others and (2010) 12 SCC 419 State of Maharashtra and others Vs. Narmada Estates Pvt. Ltd., and others opined that if a relief is not claimed, it cannot be granted. There was no material on record on the strength of which back wages could have been claimed and granted. We find no illegality in the order of writ Court which warrants interference for the purpose of grant of back wages. Learned Single Judge on the basis of pleadings and material on record has taken a plausible view. Hence, as per the view taken in (2016) 3 SCC 340 Management of Narendra & Company Private Limited Vs. Workmen of Narendra & Company, no case is made out for admission.

Admission is declined.

At this stage, when the entire order has been dictated, Mr. Aviral Vikas Khare, learned counsel for the appellant submits that before the writ Court, an application under HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

W.A.No. 50 / 2021 DINESH BAGORA Vs. STATE OF MP AND TWO OTHERS

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Section 151 of the Code of Civil Procedure, 1908 was filed bringing the fact of termination and his financial incapacity etc., to the notice of the writ Court. It is seen that this application was never pressed before the writ Court. Apart from this, an application filed u/S. 151 of the CPC in a writ proceedings, by no stretch of imagination, can be treated to be a substitute of pleadings or substitute of an application for amendment. Thus, the said application filed u/S. 151 of the CPC cannot improve the case of the petitioner. In all fairness, if petitioner intended to strengthen his pleadings, the only method known to law was to file an appropriate application seeking amendment in the petition. In absence of pleadings and relief, no relief was due to appellant. In absence of pleading and prayer regarding back wages, the judgment cited by Mr. Aviral Vikas Khare, are of no assistance to him.

Appeal is dismissed.

            (SUJOY PAUL)                    (ANIL VERMA)
              JUDGE                           JUDGE
KR



Digitally signed by KAMAL RATHORE
Date: 2021.07.22 17:26:09 +05'30'