Patna High Court
Surendra Jha vs The State Of Bihar And Ors on 14 October, 2025
Author: Anil Kumar Sinha
Bench: Anil Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12211 of 2017
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Surendra Jha Son of late Yugal Kishore Jha resident of Bela Vihar, P.S. -
Mithanpura, District - Muzaffarpur.
... ... Petitioner/s
Versus
1. The State Of Bihar
2. The Chairman, Bihar Industrial Ara Development Authority, Udyog
Bhawan, East Gandhi Maidan, Patna.
3. The Managing Director, Bihar Industrial Area Development Authority,
Udyog Bhawan, East Gandhi Maidan, Patna
4. The Secretary, Bihar Industrial Area Development Authority, Udyog
Bhawan, East Gandhi Maidan, Patna
5. The Executive Director, Bihar Industrial Area Development Authority,
Regional Office, Darbhanga.
6. The Executive Director, Bihar Industrial Area Development Authority,
Regional Office, Muzaffarpur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Prashant Sinha
For the State : Mr.Abbas Haider, SC 6
For the BIADA : Mr. Partha Gaurav
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CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA
JUDGMENT AND ORDER
C.A.V.
Date : 14-10-2025
The present writ application has been filed for quashing
the order, dated 27.02.2017, passed by the Principal Secretary,
Department of Industries, Government of Bihar, Patna, in Appeal
No. 01/2015, whereby the appeal filed by the petitioner,
challenging the rejection of his claim for back wages, has been
Patna High Court CWJC No.12211 of 2017 dt.14-10-2025
2/13
dismissed. The petitioner has further prayed for quashing the
order, contained in Memo No. 6861, dated 05.12.2014, issued by
the Managing Director, Bihar Industrial Area Development
Authority, rejecting his claim for back wages for the period from
01.12.2007
to 03.07.2014, and also for issuance of a direction to
the respondents to release full back wages for the said period along
with penal interest.
2. The case of the petitioner, in brief, is that the petitione
was appointed as Peon on 07.05.1979 in the erstwhile North Bihar
Industrial Area Development Authority. After formation of Bihar
Industrial Area Development Authority (hereinafter referred to as
'the BIADA') in the year 2003, the services of the petitioner was
transferred to the newly formed Authority.
3. On 27.09.2007, the petitioner was served with a
charge memo alleging unauthorized absence from duty, failure to
remain available on mobile phone and not responding to the calls
of his superior officers.
4. In his reply, dated 03.10.2007, the petitioner
explained that during the period of his absence, he was present at
Ram Nagar and had also received salary for that period. He further
stated that being a low-paid employee, he could not afford a
mobile phone and had provided his landline number of his home
Patna High Court CWJC No.12211 of 2017 dt.14-10-2025
situated at Muzaffarpur to his superiors, while also pointing out the
impracticability of making daily long-distance calls.
5. Despite the explanation, the Managing Director,
BIADA, vide Memo No. 269, dated 10.11.2007, imposed
punishment of compulsory retirement to the petitioner with effect
from 30.11.2007. The petitioner challenged the order of
punishment of compulsory retirement in C.W.J.C. No. 9420 of
2008, which was allowed by this Court on 18.06.2014 and the
order of compulsory retirement was set aside. It was further
directed to the respondents to resolve the grievance of the
petitioner for payment of back wages in terms of the order, dated
05.05.2009, passed in CWJC No. 11196 of 2007, wherein reliance
had been placed in the case of Novartis India Ltd. v. State of
West Bengal, reported in (2009) 3 SCC 124.
6. Pursuant to the order, dated 18.06.20214, passed in
CWJC No. 9420 of 2008, the petitioner submitted a representation
on 03.11.2014 seeking payment of back wages for the period of his
compulsory retirement, i.e., from 01.12.2007 to 03.07.2014.
However, the Managing Director, BIADA, vide Memo No. 6861,
dated 05.12.2014, rejected the claim of the petitioner for grant of
back wages on the grounds, inter alia, that (i) the petitioner was
only a temporary employee; (ii) he had exhibited indiscipline; (iii)
Patna High Court CWJC No.12211 of 2017 dt.14-10-2025
he was also in the habit of remaining on unauthorized absence; (iv)
he had not averred anything regarding his gainful employment;
and (v) the work during the absence of the petitioner, was
performed by others who were duly paid and the authority could
not be compelled to make double payment for the same period
without any work performed by the petitioner.
7. The petitioner, thereafter, challenged the order
rejecting his claim of back wages in CWJC No. 2129 of 2015,
which was disposed of on 03.02.2015, granting him liberty to
pursue the matter before the appellate authority, with further
direction to the authority to examine the whole issue afresh.
8. In pursuance thereof, the petitioner preferred Appeal
No. 01 of 2015 before the Principal Secretary, Department of
Industries, government of Bihar, Patna, but the same was rejected
on 27.02.2017 on the grounds that the petitioner was frequently
absent from his duty despite repeated warnings, his salary was
withheld on several occasions for such absence, and the petitioner
was suspended on three times for his act of indiscipline. It was
further observed that while working as a night watchman, the
petitioner was absent from the premises without any intimation,
which resulted in a theft incident.
Patna High Court CWJC No.12211 of 2017 dt.14-10-2025
9. Learned Counsel for the petitioner argued that once
the order of compulsory retirement was quashed by this Court, the
petitioner became entitled to all consequential benefits, including
payment of back wages for the period he was kept out of service.
The rejection of back wages on the ground of alleged indiscipline
or unsubstantiated charges is wholly arbitrary inasmuch as no
departmental enquiry was conducted in accordance with law and
the punishment itself was set aside by this Court. The respondents
could not, therefore, revive the allegations which had never been
proved.
10. Learned Counsel further submits that the petitioner
was never gainfully employed during the period from 01.12.2007
to 03.07.2014. Despite this fact, the respondents neither afforded
him any opportunity to establish his non-employment nor called
upon him to file any document/affidavit to this effect, and without
granting any personal hearing, the Managing Director, BIADA,
rejected his claim for back wages. Such action is ex-facie violative
of the principles of natural justice.
11. Learned Counsel next submits that the finding of the
Managing Director, treating the petitioner as a mere temporary
employee even after 28 years of continuous service, is perverse
and unsustainable. The petitioner was extended the benefits of pay
Patna High Court CWJC No.12211 of 2017 dt.14-10-2025
revision and time-bound promotion at par with the permanent
employees, which clearly establishes his substantive status.
Likewise, the plea of indiscipline is misconceived as no charge of
misconduct was ever proved in a valid enquiry and the order of
compulsory retirement having been set aside, such stale allegations
cannot be resurrected to deny monetary benefits.
12. The reasoning given in the impugned order that the
work of the petitioner was carried out by others during the period
of compulsory retirement of the petitioner and the authority cannot
be compelled to make double payment for one work is equally
untenable. It was the action of the authority itself, which prevented
the petitioner from discharging his duties and the petitioner cannot
be penalized for the consequences of such arbitrary action.
13. Reliance is placed on the decision of the Hon'ble
Supreme Court, in the case of Novartis India Ltd. (supra).
14. Learned Counsel next submits that the Principal
Secretary, while dismissing the appeal preferred by the petitioner,
vide order, dated 27.02.2017, failed to consider the settled law laid
down by the Hon'ble Supreme Court, and instead relied upon
unsubstantiated allegations, which cannot constitute a valid ground
to deny back wages and as such, the impugned orders, dated
05.12.2014 and 27.02.2017, are arbitrary, violative of Articles 14
Patna High Court CWJC No.12211 of 2017 dt.14-10-2025
and 21 of the Constitution of India, contrary to binding judicial
precedents and are liable to be quashed, with a consequential
direction to the authorities to release back wages with interest.
15. Learned Counsel appearing for the BIADA submits
that the petitioner seeks back wages for the period from
01.12.2007 to 03.07.2014, during which he remained out of
service on account of his compulsory retirement. Although the
order of compulsory retirement, dated 10.11.2007, was set aside by
this Court on 18.06.2014, with specific direction that the question
of back wages will be considered in light of the earlier judgment,
dated 05.05.2009 and the principles laid down by the Hon'ble
Supreme Court, in the case of Novartis India Ltd. (supra).
16. In pursuance of the aforesaid direction, the
representation filed by the petitioner was duly examined by the
Managing Director, BIADA, who, after considering the entire
service record and relevant factors, passed a detailed and reasoned
order vide Memo No. 6861, dated 05.12.2014, rejecting the claim
of the petiioner. The order recorded that the petitioner's initial
appointment was purely temporary, irregular and was made
without any advertisement or proper selection process. The
appointment letter of the petitioner itself stipulates that his service
was terminable at any time without notice. The service record of
Patna High Court CWJC No.12211 of 2017 dt.14-10-2025
the petitioner further revealed that the petitioner was habitually
absent from duty without prior permission or information,
repeatedly avoided communication with his superiors despite
several attempts and consistently displayed a pattern of
indiscipline. It was noted that he had been suspended on three
occasions and while working as a night guard, he had left the
premises unattended, leading to a theft incident. The order also
observed that during the period in question, the petitioner neither
disclosed whether he was gainfully employed elsewhere nor
demonstrated any effort to seek employment.
17. Owing to the petitioner's absence, the BIADA was
compelled to get the required work executed through other
persons, mostly on a contractual basis, who were duly paid for
their services. The grant of back wages, in such circumstances,
would result in double financial liability on the Authority, which is
impermissible in law. It has been emphasized that while back
wages was rightly denied, the petitioner was nonetheless extended
all service benefits due upon his reinstatement in service. He was
granted the 2nd ACP and MACP benefits with effect from
07.01.2015, and after superannuation, on 31.07.2016, at the age of
60 years, he was paid earned leave, gratuity, arrears of salary and
Patna High Court CWJC No.12211 of 2017 dt.14-10-2025
all other admissible retirement benefits. No dues presently remain
outstanding against BIADA.
18. Learned Counsel thus submits that the impugned
orders are well-reasoned and in accordance with the criteria laid
down by the Hon'ble Supreme Court. The petitioner, having not
made out any case for entitlement of back wages, is not entitled to
any relief in the present writ petition.
19. In reply, learned Counsel for the petitioner submits
that the petitioner obtained a copy of his memo of appeal through
RTI, which is annexed as Annexure 9 to the supplementary
affidavit filed by the petitioner, wherein, it has been specifically
stated on affidavit before the Appellate Authority that he was not
gainfully employed during the period of his compulsory
retirement.
20. I have heard learned Counsel for the parties
concerned and have gone through the materials available on
record.
21. The point for determination is whether the petitioner,
whose compulsory retirement was quashed, is entitled to back
wages for the intervening period from 01.12.2007 to 03.07.2014.
22. The Supreme Court, in the case of Hindustan Tin
Works Pvt. Ltd v. Employees of Hindustan Tin works Pvt.
Patna High Court CWJC No.12211 of 2017 dt.14-10-2025
Ltd., reported in (1979) 2 SCC 80, has held that ordinarily, a
workman, whose service has been illegally terminated, would be
entitled to full back wages except to the extent he was gainfully
employed during the enforced idleness. That is the normal rule.
Any other view would be a premium on the unwarranted litigative
activity of the employer. If the employer terminates the service
illegally and the termination is motivated as in this case, viz., to
resist the workman's demand for revision of wages, the
termination may well amount to unfair labour practice. In such
circumstances, reinstatement being the normal rule, it should be
followed with full back wages.
23. Further, in the case of Deepali Gundu Surwase v.
Kranti Junior Adhyapak Mahavidyalaya, reported in (2013) 10
SCC 324, the Supreme Court has held that denial of back wages
would amount to indirectly punishing the employee and rewarding
the employer by relieving him of the obligation to pay back wages,
whether employer wants to pat back wages or the employee is
entitled to deny back wages or contest the employee's entitlement
to get consequential benefits, the employer has to plead and prove
that employee was gainfully employed during the intervening
period.
Patna High Court CWJC No.12211 of 2017 dt.14-10-2025
24. In the decision of the Supreme Court, in the case of
Pradeep v. Manganese Ore (India) Ltd., reported in (2022) 3
SCC 683, and also a decision of Division Bench of this Court, in
L.P.A. No. 317 of 2024, the Courts have reiterated the decision of
Deepali Gundu Surwase (supra).
25. Now coming to the facts of the present case, the
Managing Director as well as the Appellate Authority have denied
back wages by relying on past service record and temporary nature
of petitioner's appointment. These grounds are unsustainable.
Once the order of compulsory retirement was set aside, the alleged
misconduct could not be the basis to deny consequential benefits,
particularly in the absence of a lawful departmental enquiry
establishing such misconduct. The reasoning that the petitioner
was a temporary employee also does not impress this Court. The
petitioner had rendered over 28 years of service, received time
bound promotion and pay revision. To treat the petitioner as a
temporary employee for denying back wages is arbitrary.
26. As regards gainful employment of the petitioner, the
petitioner has categorically asserted in the memo of appeal that he
remained unemployed during the period of his compulsory
retirement. The Authority has not produced any material to show
that the petitioner was gainfully employed during the period of his
Patna High Court CWJC No.12211 of 2017 dt.14-10-2025
compulsory retirement. In view of the specific ground taken by the
petitioner that he was not gainfully employed elsewhere, the
burden cast upon the employer, which has thus not been
discharged by the BIADA in the present case. The plea of double
payment is equally not tenable as the employee, who was illegally
kept out of service, cannot be penalized for the employer's own act
of termination.
27. Considering the laws laid don by the Supreme Court
and the decision of this Court, as discussed herein above,
ordinarily, a workman, whose service has been illegally terminated
would be entitled to back wages except during the period of
absence from duty. The order of compulsory retirement of the
petitioner has been set aside by this Court and the matter was
referred back to the Authority to take a decision on the issue of
payment of back wages.
28. On the facts and law discussed herein above, the
impugned orders, dated 05.12.2014 and 27.02.2017, are liable to
be set aside.
29. Accordingly, the impugned orders, dated 05.12.2014
and 27.02.2017, are set aside.
30. The BIADA is directed to pay 70 per cent of back
wages to the petitioner for the period 01.12.2007 to 03.07.2014, in
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the entirety of the facts of this case. The payment shall be made to
the petitioner within a period of four months from the date of
receipt/production of a copy of this order.
31. In the result, this writ application is allowed.
32. There shall be no order as to costs.
(Anil Kumar Sinha, J.)
Prabhakar Anand/-
AFR/NAFR AFR
CAV DATE 29-08-2025
Uploading Date 14-10-2025
Transmission Date N/A
