Madhya Pradesh High Court
Suresh Kumar Sharma vs The State Of Madhya Pradesh on 14 February, 2025
Author: Anand Pathak
Bench: Anand Pathak, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
WRIT APPEAL NO. 1702 of 2022
SURESH KUMAR SHARMA
Vs.
STATE OF MADHYA PRADESH & ORS.
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APPEARANCE:
Shri Anil Sharma - Advocate for the appellant.
Shri A.K. Nirankari - Government Advocate for the
respondents/State.
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JUDGMENT
{Delivered on 14th Day of February, 2025}
Per. Justice Anand Pathak
1. This writ appeal under Section 2(1) of the Madhya Pradesh Uchcha
Nyalaya (Khand Nyaypeeth Ko Appeal) Adhiniym, 2005 is filed by
the appellant/petitioner being aggrieved by that part of the order
dated dated 13.09.2022 passed by learned Single Judge in Writ
Petition No.2712/2014 whereby while granting reinstatement, back
wages has been denied to the appellant.
2. Precisely stated facts of the case are that appellant was initially
appointed as daily wager for 89 days vide order dated 11.10.1989 and
thereafter, on the basis of Scrutiny Committee constituted by the Joint
Director Education, Gwalior Division, appellant/petitioner was
regularized on the post of Peon on 11.05.1990. However, order of
regularization of appellant/petitioner was recalled on the ground that
vacant posts are not available; whereas, some of his juniors were
continued in service. Thereafter, similarly situated employees
approached the Tribunal and the Tribunal passed the order in their
favour and they were reinstated. The petitioner also preferred a writ
petition vide W.P.No.197/2004 which was disposed of vide order
dated 8/2/2004 (Annexure P/4) with direction to the respondents to
consider the case of petitioner. When the respondents did not
consider the petitioner's case as per order dated 8/2/2004, petitioner
filed another petition vide W.P.No.1320/2004 which was disposed of
vide order dated 30.09.2004 with the direction to the respondents to
reconsider the case of petitioner as per similarly situated employees.
3. Respondent/District Education Officer, Guna vide order dated
01/12/2008 rejected the claim of appellant/petitioner by stating that
his service is not as per rules; hence, he is not entitled for re-
appointment.
4. Against the said order, appellant/petitioner again filed petition vide
W.P.No.1146/2009 which was disposed of in Lok Adalat with
direction to decide his case within 90 days but the respondents vide
order dated 12/02/2014, again rejected the case of petitioner for
reinstatement in service/reappointment by stating that his case was
earlier rejected and there is no ground for re-consideration.
Thereafter, petitioner filed WP No.2712/2014 challenging the order
dated 12/02/2014 and order dated 01/12/2008 on the ground that his
junior persons were reinstated and continued on the post, while
petitioner is senior but his case was discarded.
5. The learned Writ Court disposed of the said petition vide order dated
13/09/2022 in the light of observations made in the case of one
similarly situated employee i.e. Tula Ram Vs. State of M.P.
[Decided on 10/08/2004 in WP No.2992/2003] but applied the
principle of 'No work no pay' as the said principle was also adopted
in the case of Tularam (supra) who was reinstated in service in May
2007. Being aggrieved by the same, the appellant/petitioner
approached this Court by filing the instant appeal.
6. It is the submission of learned counsel for appellant that the learned
Writ Court has committed grave error while applying the principle of
'No work no pay' in case of petitioner who was fighting for his right
since 2004 as present petition is the fourth round of litigation for the
similar benefit of regularization as granted to his juniors. The action
of respondents is arbitrary in nature and also violation of Article 14
of Constitution as the appellant has no fault and was agitating the
matter for the same relief since 2004. Appellant can not be penalized
for the arbitrary action on the part of respondents. It is further
submitted that appellant is entitled for the arrears of salary from the
date from which junior was regularized i.e. 1990. Learned counsel for
appellant in support his submissions relied upon the decision in the
case of Union of India Etc. Vs. K.V. Jankiram, (1991) 4 SCC 109.
7. Learned counsel for the respondents/State opposed the prayer and
submits that learned writ court has rightly passed the order as
appellant failed to establish his case for grant of full back wages.
Thus, the appeal deserves to be dismissed.
8. Heard the counsel for the parties and perused the documents
appended thereto.
9. This is a case where appellant got the benefit reinstatement but is
seeking back wages. Case of back wages differs from case to case. In
the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak
Mahavidyalaya and others, (2013) 10 SCC 324 and U.P. State
Brassware Corpn. Ltd. Vs. Uday Narayan Pandey, (2006) 1 SCC
479 has given guidance regarding reinstatement. The Apex Court in
the case of Deepali Kundu Surwase (supra) clarified that
reinstatement with back wages would not be automatic, it differs
from case to case and culled out some propositions which are as
under:
"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 averments 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. The cases in which the Labour Court/Industrial Tribunal
exercises power under Section 11-Aof 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
victimizing the employee or workman, then the concerned Court
or Tribunal will be fully justified in directing payment of full back
wages. In such cases, the superior Courts should not exercise
power under Article 226or 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 be kept in view that in the cases of wrongful / illegal
termination of service, the wrongdoer is the employer and
sufferer is the employee/workman and there is no justification to
give 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 finalization 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 Private Limited v. Employees.
38.7. The observation made in J.K. Synthetics Ltd. v. K.P.
Agrawal(supra) 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 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."
10. Here, in the present case, services of appellant were reinstated by
learned Writ Court granting proforma fixation of pay in comparison
to his juniors but denied the back wages. The guidelines in relation to
grant of back wages has already been delineated by the Apex Court in
the case of Deepali Gundu Surwase(supra). Appellant could not
make out his case for grant of back wages as he himself did not
approach this Court timely and he only woke up when the case of
reinstatement of one of the similarly situated persons i.e. Tularam
was allowed.
11. In the conspectus of facts and circumstances of the case, this Court is
of the considered opinion that learned Writ Court did not err in
rejecting the claim of appellant for back wages while granting him
reinstatement. The judgment relied upon by the appellant moves in
different factual realm and does not help the cause of appellant.
Thus, the order passed by learned Writ Court is hereby affirmed and
the appeal preferred by the appellant is hereby dismissed.
12. Writ appeal stands dismissed.
(ANAND PATHAK) (HIRDESH)
Ashish* JUDGE JUDGE
ANIL KUMAR
CHAURASIYA
2025.02.17
11:19:40 +05'30'
