Patna High Court
The Bihar State Power Holding Company Ltd.versusAbhinita
- Decided
- Disposal
- DISPOSED
Holding
The Court held that although the disciplinary proceeding was vitiated due to lack of jurisdiction, a fresh enquiry was not ordered because of the elapsed time and hardship, and the employee was entitled to reinstatement with 50 % back wages, not full back wages.
Summary
The petitioner, a Junior Electrical Engineer appointed in 2011, was shown a show‑cause notice for alleged willful absence and indiscipline, transferred, and subsequently suspended and dismissed after a departmental enquiry conducted by an officer who lacked jurisdiction. The High Court set aside the dismissal on the ground that the disciplinary authority was incompetent, but did not order a fresh enquiry, citing the long lapse of time and potential hardship. The Court considered whether a fresh enquiry was required when a punishment is quashed on technical grounds and whether the employee is entitled to back wages upon reinstatement. Relying on Supreme Court precedents, the Court held that while a fresh enquiry is the usual remedy, it may be dispensed with in exceptional circumstances, and that back‑wage entitlement is discretionary and not automatic. Consequently, the appeal was partly allowed: the petitioner was reinstated with 50 % of her salary and allowances for the period out of service, and no costs were awarded.
Issues considered
- Whether a fresh departmental enquiry must be ordered when a disciplinary punishment is set aside on technical grounds of jurisdictional defect
- Whether the employee is entitled to full back wages as a consequence of reinstatement
Legislation cited
- Industrial Disputes Act, 1947 — s. 11-A
Subjects
- disciplinary proceedings
- jurisdiction
- reinstatement
- back wages
- procedural defect
- letters patent appeal
- departmental enquiry
- natural justice
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.769 of 2025
In
Civil Writ Jurisdiction Case No.7980 of 2015
======================================================
1. The Bihar State Power Holding Company Ltd. (erstwhile Bihar State
Electricity Board), Vidyut Bhawan, Bailey Road, Patna, through its
Chairman.
2. The Director Administration, Bihar State Power Holding Company Ltd.,
Patna.
3. The Chairman-cum-Managing Director, Bihar State Power Holding
Company Ltd., Vidyut Bhawan. Bailey Road. Patna.
4. The Deputy General Manager, North Bihar Power Distribution Company
Ltd., Vidyut Bhawan, Bailey Road, Patna.
5. The Officer on Special Duty (Administration) North Bihar Power
Distribution Company Ltd., Patna.
6. The General Manager-cum-Chief Engineer, PESU Area, Patna.
7. The Executive Engineer, Electric, PESU Area, Patna.
8. The Assistant Electrical Engineer, PESU Area, Patna.
9. South Bihar Power Distribution Company Limited through its Managing
Director having its registered office at Vidyut Bhawan, Jawahar Lal Nehru
Path, Bailey Road, Patna-800001.
10. North Bihar Power Distribution Company Limited through its Managing
Director having its registered office at Vidyut Bhawan, Jawahar Lal Nehru
Path, Bailey Road, Patna-800001.
... ... Appellant/s
Versus
Abhinita, D/o Nakul Prasad Choudhary, resident of Mohalla- Sant Vihar,
Ward No. 13, Aliganj, Behind Thakurbari, P.S. District- Banka
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Y. V. Giri, Sr. Advocate
Patna High Court L.P.A No.769 of 2025 dt. 26-05-2026
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Mr. Ranjan Kumar Srivastava, Advocate
For the Respondent/s : Mr. Umesh Prasad Singh, Sr. Advocate
Mr. Vaibhava Veer Shanker, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE HARISH KUMAR)
Date : 26-05-2026
We have heard Mr. Y. V. Giri, learned Senior
Advocate duly assisted by Mr. Ranjan Kumar Shrivastava,
learned Advocate for the appellants and Mr. Umesh Prasad
Singh, learned Senior Advocate with Mr. Vaibhava Veer
Shekhar, learned Advocate for the respondent through virtual
mode.
2. The present Letters Patent Appeal is preferred
under Clause X, Appendix-E of the Patna High Court Rules
against the Judgment and order dated 27.06.2025 passed in
C.W.J.C. No. 7980 of 2015 whereby the writ petition was
allowed with a direction as follows:
“Accordingly, the order dated
26.06.2013 and 04.02.2015 stands set aside. The
concerned Respondent/Competent Authority are
hereby directed to reinstate the petitioner with all
consequential benefits, including monetary and
service benefits within a period of six months
from the date of receipt of this order. However,
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petitioner shall be reinstated within a period of
one month from the receipt of this order.”
3. The short facts, which led to the filing of the
present appeal are delineated hereunder:
The writ petitioner was duly appointed and joined
as Junior electrical Engineer on 10.09.2011 in the Bihar State
Electricity Board, as then was (now Bihar Power Holding
Company Limited) and thereafter she was posted in PESU
Control Room, Area Patna. While the writ petitioner was posted
as a Junior Electrical Engineer in PESU Control Room, a show-
cause notice was issued by the General Manager-cum-Chief
Engineer, PESU Area, Patna vide letter no. 6185 dated
30.10.2012 for her willful absence from the duties from
20.10.2012 to 28.10.2012 and indiscipline behaviour. In the
aforesaid premises, a Committee was constituted by the General
Manager-cum-Chief Engineer, PESU Area to conduct an
enquiry into the imputation and accordingly the enquiry
committee submitted its report on 26.11.2012.
On being found substance in the allegation, the writ
petitioner was transferred from PESU Control Room to the
Electric Supply Section, Mahnar, North Bihar Power
Distribution Company Limited on an administrative ground vide
Notification No. 26 dated 27.11.2012. The writ petitioner,
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however, did not join to her new place of posting and this act of
indiscipline and defiance of order was added in the charge-
sheet. The petitioner was put under suspension vide Office
Order No. 965 dated 14.03.2013 after serving the charge memo
as well as amended charge memo. The writ petitioner submitted
her reply before the enquiry officer and after conclusion of the
enquiry, the enquiry officer submitted enquiry report dated
28.05.2013 with the finding that the charges stood proved. A
second show-cause notice was issued to the petitioner vide
Resolution No. 570 dated 14.06.2013. However, the writ
petitioner did not submit any reply thereto. The enquiry report
was considered by the Managing Director of the North Bihar
Power Distribution Company Limited (in short ‘NBPDCL’),
who proposed for dismissal of the writ petitioner and
subsequently referred the order to the Chairman-cum-Managing
Director, Bihar Power Distribution Company Limited for
approval. Accordingly, the Chairman-cum-Managing Director,
Bihar Power Distribution Company Limited approved the
dismissal order on 26.06.2013 and communicated the same to
the petitioner.
Aggrieved by such order, the writ petitioner has
preferred appeal before the Chairman-cum-Managing Director
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of Bihar Power Distribution Company Limited, which came to
be rejected vide order dated 20.12.2014 and communicated to
the petitioner. The order of the Disciplinary Authority as well as
order passed by the Appellate Authority were challenged before
this Court in C.W.J.C. No. 7980 of 2015. During the pendency
of the writ petition, the petitioner also filed interlocutory
application seeking amendment of the prayer, inter alia, to quash
the Notification No. 26/EB-Patna dated 27.11.2012 whereby the
writ petitioner has been transferred from PESU Control Room
to Electric Supply Section Mahnar, besides the decision dated
17.01.2013 whereby the departmental proceeding was initiated
against her and also the charge-sheet dated 17.01.2013 as well
as amended charge-sheet dated 06.03.2013 and the second
show-cause dated 14.06.2013.
4. The respondents-appellants herein filed a
detailed reply raising the plea of maintainability and delay in
seeking such amendment at such belated stage. The matter was
finally heard and impugned order/judgment dated 27.06.2025
came to be passed after setting aside the departmental order
dated 26.06.2013 and 04.02.2015 and the Competent Authorities
were directed to reinstate the petitioner with all consequential
benefits, including monetary and service benefits within a
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period of six months from the date of receipt of this order.
5. Mr. Y.V. Giri, learned Senior Advocate for the
appellants while assailing the impugned order/judgment has
submitted that once the impugned orders were set aside on being
found that the disciplinary proceeding was not conducted in
accordance with the prescribed procedure, particularly,
regarding the jurisdiction and competence of the authority
initiating the departmental proceeding, the matter ought to have
been remanded for re-framing of charges and a fresh enquiry
should be ordered. Since the writ petition was allowed solely on
a technical ground relating to the competence of jurisdiction, the
consequential direction for grant of benefits, including the
monetary and service related benefits is not legally sustainable,
just and proper. It is further contended that once the initiation of
departmental proceeding was not challenged in the original writ
petition and was questioned belatedly after 14 years by seeking
amendment of the petition, the same was not required to be
considered. The delay in filing the said application was strongly
objected by the respondents/appellants herein, but not
considered by the learned Single Judge. It is further contended
that since the writ petitioner has not proved that she was
gainfully employed and that she did not earn any income in the
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said period, hence the consequential benefits, including
monetary and service benefits is wholly unjustified.
6. To support the aforesaid contention reliance has
been placed by Mr. Giri, learned Senior Advocate on a decision
rendered by the Three Judges Bench of the Hon’ble Supreme
Court in the case of General Manager, Haryana Roadways Vs.
Rudhan Singh: (2005) 5 SCC 591. Further reliance has also
been placed on a decision of the Hon’ble Supreme Court in the
case of Chairman-cum-Managing Director, Coal India
Limited & Others Vs. Ananta Saha & Ors.: (2011) 5 SCC 142
to buttress his argument that once an order of punishment is
quashed on technical grounds, the matter ought to be remanded
to the disciplinary authority for initiation of a fresh
enquiry/proceeding from the stage where the defect is found out
and in such a situation, the employees is not automatically
entitled to back wages merely because reinstatement is ordered.
7. On the other hand, Mr. Umesh Prasad Singh,
learned Senior Advocate for the writ petitioner-respondent
vehemently refuted the aforenoted contentions and submitted
that the entire action as well as the disciplinary proceeding
initiated against the writ petitioner was tainted with malafide
and she was subjected to mental and physical harassment in
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various ways. Moreover, once the position is admitted that the
writ petitioner was appointed on 24.08.2011, so the writ
petitioner’s appointment made by the Bihar State Electricity
Board in accordance with Rules and Procedure as enforced on
that date; hence the writ petitioner’s appointing authority was
the Chairman of the Bihar State Electricity Board. The very
initiation of the departmental proceeding is wholly without
jurisdiction, as it has not been initiated by the competent
authority, hence the order passed by the learned Single Judge
suffers from no illegality. Once the learned Single Judge has
concluded that the O.S.D. (Admn.) is not the disciplinary
authority to the writ petitioner, therefore, whatever action taken
by the O.S.D. (Admn.) against the petitioner in a departmental
enquiry stands vitiated; besides the finding recorded by the
Court that if an order was passed by an incompetent authority, it
would go to the root of the matter, therefore, a formal challenge
to action or order was warranted and the writ petitioner was
extended liberty to file interlocutory application to amend the
original writ petition, thus the plea of delay in challenging to the
initial order cannot be raised.
Learned Senior Advocate additionally contended
that since the impugned order of initiation of disciplinary
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proceeding has been found to be wholly without jurisdiction,
therefore, the order of dismissal as well as appellate order have
no force in law, accordingly, after the orders having been set
aside, the writ petitioner is entitled to reinstatement and all the
back wages, because she has been deprived from discharging
the duty unauthorizedly.
8. To strengthen the aforesaid submissions,
reliance has been placed by Mr. Singh, learned Senior Advocate
on a decision rendered by the Hon’ble Supreme Court in the
case of Shobha Ram Raturi Vs. Haryana Vidyut Prasaran
Nigam Limited & Ors.: (2016) 16 SCC 663 that employer
cannot be allowed to press self-serving plea of denying him/her
wages on the ground of principles of “no work no pay’ since
fault lies with employer if not utilizsing service of employee for
the period, in question. Reliance has also been placed on a
Division Bench decision of this Court in the case of the
Chairman, Bihar Industrial Area Development Authority &
Ors. Vs. Arvind Kumar Singh & Anr.: 2017 (1) PLJR 479 that
in the event of reinstatement, the employee is entitled to full
back wages, if he gets exonerated from the charges.
9. After having anxiously heard the learned Senior
Advocates for the respective parties and on perusal of the
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materials available on record as well as the impugned judgment
and order, what we find that the learned Single Judge on being
found that the very initiation of the disciplinary proceeding by
framing of charge and its continuation by the O.S.D. (Admn.),
who was not the disciplinary authority to the petitioner, came to
hold that whatever action is taken by the O.S.D. (Admn.)
against the petitioner in a departmental enquiry stands vitiated.
Besides the aforesaid facts, the learned Single Judge has
rendered specific finding that the penalty order has also been
passed by the incompetent authority, which would go to the root
of the matter. Consequently, the learned Single Judge came to
hold that the appellate authority’s order and further action of the
respondents would vitiate in view of the decision of the Hon’ble
Supreme Court in the case of Ananta Saha (supra) and
accordingly set aside the impugned orders dated 26.06.2013 and
04.12.2015.
10. In view thereof, the issues as culled out from
the materials available on record, and require consideration, in
the opinion of this Court are in narrow compass and read as
follows:
(i) Whether the learned Single Judge has
committed an error in law in not directing fresh enquiry to
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be conducted in case the disciplinary proceeding has been
held to be vitiated merely on technical grounds;
(ii) Whether the writ petitioner-respondent
herein is entitled to back wages as a consequence of her
reinstatement.
11. To answer the Issue No.(i) as formulated
hereinabove, we firstly refer the decision rendered by the
Hon’ble Supreme Court in the case of Managing Director
ECIL Hyderabad & Ors. Vs. B. Karunakar & Ors., (1993) 4
SCC 727, where the Hon’ble Supreme Court has been pleased
to hold that where the punishment awarded by the disciplinary
authority is quashed by the Court/Tribunal on some technical
grounds, the authority must be given an opportunity to conduct
the enquiry afresh from the stage where it stood before the
alleged vulnerability surfaced. However, for the purpose of
holding fresh enquiry, the delinquent is to be reinstated and may
be put under suspension. The question of back wages etc. is
determined by the disciplinary authority in accordance with law
after the fresh enquiry is concluded.
12. Now coming to the decision rendered by the
Hon’ble Supreme Court in the case of Ananta Saha (supra), it
was held that where an order of punishment is quashed on
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account of being suffered from violation of principles of natural
justice, the matter may be relegated to the disciplinary authority
for initiating de-novo enquiry with effect from the stage where
the defect has been pointed out. The Hon’ble Supreme Court
further reiterated that the principle of “no work no pay” may
apply particularly where the employee was gainfully employed
elsewhere and clarified that entitlement to back wages is
independent of reinstatement and remains discretionary on the
court depending on the facts of the case. The disciplinary
authority may reinstate the delinquent for the purpose of
conducting a fresh enquiry and even place him under
suspension, in which case he would only be entitled to
subsistence allowance pending enquiry.
The aforenoted legal position has been settled in
series of decisions where the Court underscored and emphasized
that once the Court sets aside the order of punsihment on the
ground that the enquiry was not properly conducted or the
enquiry was found to be deficient either procedurally or
otherwise, the proper course always is to remand the matter
back to the authority concerned to redo a fresh.
However, there may be situations where because of
a long time lag or such other supervening circumstances the writ
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court considers it unfair, harsh or otherwise unnecessary to
direct a fresh enquiry or fresh order by the competent authority.
This issue has been duly considered and crystallized by the
Hon’ble Supreme Court in the case of Allahabad Bank & Ors.
Vs. Krishna Narayan Tewari: (2017) 2 SCC 308. It would be
relevant to recapitulate paragraph nos. 8 and 9 of the said
judgement, which would certainly help to answer the issue
raised here in the matter.
“8. There is no quarrel with the
proposition that in cases where the High Court
finds the enquiry to be deficient, either
procedurally or otherwise, the proper course
always is to remand the matter back to the
authority concerned to redo the same afresh.
That course could have been followed even in
the present case. The matter could be remanded
back to the disciplinary authority or to the
enquiry officer for a proper enquiry and a fresh
report and order. But that course may not have
been the only course open in a given situation.
There may be situations where because of a long
time lag or such other supervening
circumstances, the writ court considers it unfair,
harsh or otherwise unnecessary to direct a fresh
enquiry or fresh order by the competent
authority. That is precisely what the High Court
has done in the case at hand.
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9. The High Court has taken note of
the fact that the respondent had been placed
under suspension in the year 2004 and dismissed
in the year 2005. The dismissal order was
challenged in the High Court in the year 2006
but the writ petition remained pending in the
High Court for nearly seven years till 2013.
During the intervening period, the respondent
superannuated on 30-11-2011. Not only that he
had suffered a heart attack and a stroke that has
rendered him physically disabled and confined
to bed. The respondent may by now have turned
65 years of age. Any remand either to the
enquiry officer for a fresh enquiry or to the
disciplinary authority for a fresh order or even
to the appellate authority would thus be very
harsh and would practically deny to the
respondent any relief whatsoever. Superadded to
all this is the fact that the High Court has found,
that there was no allegation nor any evidence to
show the extent of loss, if any, suffered by the
Bank on account of the alleged misconduct of
the respondent. The discretion vested in the High
Court in not remanding the matter back was,
therefore, properly exercised.”
13. In the case of Cantonment Executive Officer &
Anr. Vs. Vijay D. Wani & Ors.: (2008) 12 SCC 230, the
departmental enquiry was held to be vitiated by the Hon’ble
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Supreme Court on the ground of bias. In the meantime, 13 years
had passed and the High Court barred the fresh enquiry. Till the
time the matter reached up to the Supreme Court, more than 16
years had lapsed. The Hon’ble Supreme Court upheld the High
Court’s order to bar further enquiry that it would not be fair to
proceed afresh in this matter. Thus, directed reinstatement of the
respondent (employee). However, while deciding the issue of
back wages, the Hon’ble Supreme Court awarded 50% back
wages to the employee as 16 years had already passed and the
departmental proceeding also had already vitiated on bias
without permission to proceed with fresh enquiry in the matter.
14. Before coming to the facts of the case, we
would also like to refer one of the decision rendered in the case
of Chairman LIC of India & Ors. Vs. A. Masilamani: (2013) 6
SCC 530, where the Hon’ble Supreme Court while answering
the questions arise for consideration as to whether:
(i) A court/tribunal sets aside the order of
punishment imposed in a disciplinary proceeding on technical
grounds, i.e., non-observance of statutory provisions, or for
violation of the principles of natural justice, then whether the
superior court, must provide opportunity to the disciplinary
authority, to take up and complete the proceedings, from the
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point that they stood vitiated and;
(ii) If the answer to question no.1 is, that such fresh
opportunity should be given, then whether the same may be
denied on the ground of delay in initiation, or in conclusion of
the said disciplinary proceedings.
It would be worth benefiting to bring on record the
relevant paragraphs which authoritatively answered the
aforenoted question.
“16. It is a settled legal proposition,
that once the court sets aside an order of
punishment, on the ground that the enquiry was
not properly conducted, the court cannot reinstate
the employee. It must remit the case concerned to
the disciplinary authority for it to conduct the
enquiry from the point that it stood vitiated, and
conclude the same. (Vide ECIL v. B. Karunakar
[(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 :
(1993) 25 ATC 704 : AIR 1994 SC 1074] , Hiran
Mayee Bhattacharyya v. S.M. School for Girls
[(2002) 10 SCC 293 : 2003 SCC (L&S) 1033] ,
U.P. State Spg. Co. Ltd. v. R.S. Pandey [(2005) 8
SCC 264 : 2006 SCC (L&S) 78] and Union of
India v. Y.S. Sadhu [(2008) 12 SCC 30 : (2009) 1
SCC (L&S) 126].
17. The second question involved
herein is also no longer res integra. Whether or
not the disciplinary authority should be given an
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opportunity to complete the enquiry afresh from
the point that it stood vitiated depends upon the
gravity of delinquency involved. Thus, the court
must examine the magnitude of misconduct
alleged against the delinquent employee. It is in
view of this, that courts/tribunals are not
competent to quash the charge-sheet and related
disciplinary proceedings, before the same are
concluded on the aforementioned grounds.
18. The court/tribunal should not
generally set aside the departmental enquiry, and
quash the charges on the ground of delay in
initiation of disciplinary proceedings, as such a
power is dehors the limits of judicial review. In
the event that the court/tribunal exercises such
power, it exceeds its power of judicial review at
the very threshold. Therefore, a charge-sheet or
show-cause notice, issued in the course of
disciplinary proceedings, cannot ordinarily be
quashed by the court. The same principle is
applicable in relation to there being a delay in
conclusion of disciplinary proceedings. The facts
and circumstances of the case in question have to
be examined taking into consideration the
gravity/magnitude of charges involved therein.
The essence of the matter is that the court must
take into consideration all relevant facts and to
balance and weigh the same, so as to determine if
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it is in fact in the interest of clean and honest
administration, that the judicial proceedings are
allowed to be terminated only on the ground of
delay in their conclusion. (Vide State of U.P. v.
Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3
ATC 319 : AIR 1987 SC 943] , State of M.P. v.
Bani Singh [1990 Supp SCC 738 : 1991 SCC
(L&S) 638 : (1991) 16 ATC 514 : AIR 1990 SC
1308] , Union of India v. Ashok Kacker [1995
Supp (1) SCC 180 : 1995 SCC (L&S) 374 : (1995)
29 ATC 145] , Prohibition & Excise Deptt. v. L.
Srinivasan [(1996) 3 SCC 157 : 1996 SCC (L&S)
686 : (1996) 33 ATC 745] , State of A.P. v. N.
Radhakishan [(1998) 4 SCC 154 : 1998 SCC
(L&S) 1044 : AIR 1998 SC 1833] , M.V. Bijlani v.
Union of India [(2006) 5 SCC 88 : 2006 SCC
(L&S) 919 : AIR 2006 SC 3475] , Union of India
v. Kunisetty Satyanarayana [(2006) 12 SCC 28 :
(2007) 2 SCC (L&S) 304] and Ministry of
Defence v. Prabhash Chandra Mirdha [(2012) 11
SCC 565 : (2013) 1 SCC (L&S) 121 : AIR 2012
SC 2250] .”
15. Now coming to the facts of this case in hand, the
charges against the writ petitioner was confined to her willful
unauthorized absence from her duty for few days with the added
charge of not submitting her joining on the transferred place and
thus constituting carelessness towards the official duty and
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indiscipline.
Undisputedly, the writ petitioner was subjected to
departmental enquiry in the year 2012 and on being found prima
facie substance in the imputation, charges were framed and the
departmental proceeding was initiated with the issuance of
Memo of Charge on 16.01.2013 vide Resolution No. 59 dated
17.01.2013. After completion of disciplinary proceeding, the
order of punishment of dismissal came to be passed on
26.06.2013. the appeal preferred by the writ petitioner also
stood rejected on 20.12.2014. The order of punishment and its
affirmance by the Appellate order were questioned before this
Court long back in the year 2015 by filing C.W.J.C. No. 7980 of
2015. Notwithstanding the aforesaid fact, the matter kept
pending before this Court and in the meantime, 12 years have
been passed till the impugned order could be passed by the
learned Single Judge on 27.06.2025. It is also not in dispute that
the question with regard to initiation of the departmental
proceeding by an incompetent person was not raised in the
original writ petition and was introduced at a belated stage by
filing an interim application seeking amendment in the prayer.
There is no quarrel to the settled proposition that the relief not
found in the pleading should not be granted. If a Court considers
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or grants a relief in which no prayer or pleading was made
depriving the respondent of an opportunity to oppose/resist such
relief, which would lead to miscarriage of justice.
16. In the case of Trojan & Co. Ltd. Vs. RM. N. N.
Nagappa Chettiar: AIR 1953 SC 235, the Hon’ble Supreme
Court consider the issue as to whether the relief not asked for by
a party could be granted and that too without having proper
pleadings, the Court held as under:
“It is well settled that the decision of a
case cannot be based on grounds outside the
pleadings of the parties and it is the case pleaded
that has to be found. Without an amendment of
the plaint, the court was not entitled to grant the
relief not asked for and no prayer was ever made
to amend the plaint so as to incorporate in it an
alternative case.
17. In the case of Bharat Amratlal Kothari Vs.
Dosukhan Samadkhan Sindhi & Ors.: AIR 2010 SC 475, the
Hon’ble Supreme Court held that though the court has very vide
discretion in granting relief, the court, however, cannot, ignoring
and keeping aside the norms and principles governing grant of
relief, grant a relief not even prayed for by the petitioner.
18. The materials available on record clearly suggest
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that the initial action of the O.S.D. (Admn.), in so far as
initiation of departmental enquiry by framing of charge is
concerned, was not assailed and thus the learned Single Judge
had rightly opined that in absence of challenge to such action
was not appropriate to decide the present matter. However, it has
further been observed that if an order was passed by an
incompetent authority, it will go to the root of the matter,
therefore, liberty was extended to the writ petitioner to
challenge the same by filing an interlocutory application and,
accordingly, the same was challenged by filing I.A. No. 2 of
2025.
19. The learned Single Judge have rightly come to the
conclusion that the penalty order was passed by an incompetent
authority, which goes to the root of the matter and consequently
the appellate order as well as the further action of the
Respondents would vitiate.
Hence, this Court is of the opinion that there was
inherent deficiency in the procedure to be adopted by the
disciplinary authority and since the very enquiry or the
proceeding was conducted by an authority having no
jurisdiction, normally, the matter should be remanded to the
disciplinary authority for initiation of a fresh proceeding with
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effect from the stage of framing of the charge where it stood
vitiated because of the reason aforenoted. To the utmost regard
to the learned Single Judge, since the infirmity pointed out by
the learned Single Judge in all circumstances, a patently
procedural defect, the matter ought to be remanded to the
disciplinary authority for initiation of a fresh proceeding; albeit
this Court is not oblivious of the settled position that the facts
and circumstances of the case, in question, have to be examined
taking into consideration the gravity/magnitude of the charge
involved therein, as also the fact that now 13 years have been
lapsed, in the meantime. Any remand to the competent authority
for initiation of a fresh proceeding, at this stage, would thus be
harsh and would practically denied to the writ petitioner any
relief, thus considering all the aspect of the matter, in the light of
the settled legal proposition, we answered the issue no.(i)
accordingly.
20. The Issue No.(ii) is whether the writ petitioner-
respondent herein is entitled to back wages as a consequence of
her reinstatement.
In consequence to the setting aside of dismissal order
as also the entire departmental proceeding, the natural corollary
is the reinstatement of the writ petitioner. Now the question as
Patna High Court L.P.A No.769 of 2025 dt. 26-05-2026
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has arisen before this Court to be answered as to whether the
writ petitioner-respondent herein is entitled to back wages as
consequence of her reinstatement.
21. In U.P. S.R.T.C. Ltd. Vs. Sarada Prasad Misra &
Anr.: (2006) 4 SCC 733, the Hon’ble Supreme Court held that
no precise formula or ‘cast iron rule’ can be laid down regarding
grant of full back wages, as entitlement thereto depends upon
the facts and circumstances of each case. The Court clarified
that reinstatement and back wages are independent reliefs and
mere reinstatement upon finding the termination illegal does not
automatically entitle the employee to full back wages. While
determining the entitlement to back wages, the Court or
Tribunal must adopt a flexible and realistic approach rather than
a rigid or mechanical one, and consider all relevant
circumstances in the light of the principles of justice, equity and
good conscience before passing an appropriate order.
The Hon’ble Supreme Court in the aforenoted case
further held that while considering the question of back wages,
several relevant factors are required to be weighed and balanced
where an employee had rendered long years of service and
wrongful termination adversely affect his prospects of future
employment, full or partial back wages may be justified.
Patna High Court L.P.A No.769 of 2025 dt. 26-05-2026
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However, in cases involving short term or daily wage
employment, award of full back wages for the entire intervening
period may be wholly inappropriate. The Hon’ble Supreme
Court also noted the shift in judicial approach from the earlier
position where reinstatement with full back wages was
ordinarily granted setting aside the dismissal order. It observed
that with the passage of time, the Courts have adopted a more
pragmatic approach recognizing that compelling the employer
to pay wages for a prolonged period during which no service
was rendered may not always be just or equitable. Accordingly,
although an employee may succeed in establishing illegality in
termination and become entitled to reinstatement. The question
of back wages must still be separately determined after
considering all surrounding circumstances and balancing the
equities between the parties.
22. In Deepali Gundu Surwase Vs. Kranti Junior
Adhyapak & Ors.: (2013) 10 SCC 324, the Hon’ble Supreme
Court allowed the appeal and set aside the impugned judgment
of High Court stating that the High Court agreed with Tribunal
that the action taken by the Management was illegal, but choose
to set aside the award of back wages on the ground that she had
not proved the factum of non-employment during the
Patna High Court L.P.A No.769 of 2025 dt. 26-05-2026
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intervening period. The Hon’ble Supreme Court granted full
back wages to the employee and directed that on account of
failure of payment within the stipulated time, 9% interest will be
added to the same. The Hon’ble Supreme Court upon taking
note of series of judgments, culled out the proposition in para.
38.1 to 38.7 of the aforenoted judgment.
“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
Patna High Court L.P.A No.769 of 2025 dt. 26-05-2026
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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.
38.4. The cases in which the Labour
Court/Industrial Tribunal exercises power under
Section 11-A of 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.
Patna High Court L.P.A No.769 of 2025 dt. 26-05-2026
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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 victimising the
employee or workman, then the court or tribunal
concerned will be fully justified in directing
payment of full back wages. In such cases, the
superior courts should not exercise power under
Article 226 or 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 keep in view that in the
cases of wrongful/illegal termination of service,
the wrongdoer is the employer and the sufferer is
the employee/workman and there is no
justification to give a 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 finalisation of litigation has taken
long time ignoring that in majority of cases the
parties are not responsible for such delays. Lack
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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 (P) Ltd. v. Employees
[Hindustan Tin Works (P) Ltd. v. Employees,
(1979) 2 SCC 80 : 1979 SCC (L&S) 53] .
38.7. The observation made in J.K.
Synthetics Ltd. v. K.P. Agrawal [(2007) 2 SCC
433 : (2007) 1 SCC (L&S) 651] 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 [Hindustan Tin Works (P) Ltd. v.
Employees, (1979) 2 SCC 80 : 1979 SCC (L&S)
53] , [Surendra Kumar Verma v. Central Govt.
Patna High Court L.P.A No.769 of 2025 dt. 26-05-2026
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Industrial Tribunal-cum-Labour Court, (1980) 4
SCC 443 : 1981 SCC (L&S) 16] 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.”
23. After having carefully gone through the judgment
and considering the principles to be taken into account while
considering the back wages, the Hon’ble Supreme Court
unequivocally held that if it is found that the employee is not
guilty at all of any misconduct or charges placed by the
employer, then this would create ample justification for award
of full back wages. The cases, in which the competent Court
finds that employer has acted in gross violation of natural justice
or statutory provisions, they will be justified in directing
payment of full back wages and in all these cases superior Court
should not exercise power under Article 226 or 136 of the
Constitution of India merely because of possibility of forming
different opinion on entitlement as the employer should not be
relieved on his burden by giving him premium.
24. In Pradeep S/O Rajkumar Jain vs Manganese
Ore(India) Limited: (2022) 3 SCC 683, the Hon’ble Supreme
Court while agreeing that the question regarding entitlement of
Patna High Court L.P.A No.769 of 2025 dt. 26-05-2026
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back wages needs to be considered, as per the conditions
provided in Deepali Gundu Surwase case (supra). However, in
cases where employee was not found at fault and yet terminated
and such termination was found illegal, then it would be unfair
to deny him the fruits of his employment which he would have
enjoyed, but for the illegal/malafide termination. The Hon’ble
Supreme Court further held that effort of the Court in such cases
should be to restore the status quo in manner which is
appropriate in the facts of each case. The matters, the Court
needs to take into consideration while making such decision will
be the nature of charges, the exact reason for the termination as
evaluated and whether the employee was gainfully employed.
25. Similarly, in the case of Gowramma C (Dead) by
LRS Vs. Manager (Personnel) Hindustan Aeronautical
Limited & Anr.: 2022 SCC Online SC 310, the Hon’ble
Supreme Court while answering such issue held that if the
employee is not at all fault and she was kept out of work by
reasons of the decision taken by the employer, then to deny the
fruits of her being vindicated at the end of the day would be
unfair to the employee and in such circumstances, no doubt, the
question relating to alternative employment that the employee
may have resorted to becomes relevant. Keeping in mind the
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discretion to be exercised by the Court relying on the fact of
each case, the Hon’ble Supreme Court noticed the fact that there
was no charge against the employee except that of having
produced false caste certificate, found it fit in the interest of
justice to enhance the payment of back wages from 50% to
75%.
26. After having discussed the legal proposition, we
are of the view that once the Court sets aside the order of
dismissal/removal/termination and the employee is reinstated
without holding any further enquiry, the period of absence from
duty not only be regularized, he should be paid all the salary and
allowances admissible to him/her. On the contrary, if the Court
sets aside the order of punishment on the ground that the
enquiry was not properly conducted or there was deficiency
either procedural or otherwise, the proper course is to remand
the matter back to the authority concerned to redo the same,
however, the entitlement of back wages is independent of the
reinstatement and will remain discretionary on the Court
depending on the facts of the case. The disciplinary authority
may also reinstate the delinquent for the purpose of conducting
a fresh enquiry and even placing under suspension in which case
the employee would be entitled to subsistence allowances
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pending euquiry and the final decision with respect to back
wages shall be taken after conclusion of such enquiry.
Accordingly, we answer the issue no.(ii).
Conclusion
27. In the case at hand, we find that the order of
dismissal was set aside on the ground of disciplinary proceeding
had been initiated by an incompetent person and, as such, there
was an inherent procedural defect, thus the matter ought to have
been remanded to the disciplinary authority to proceed afresh
from the stage where the defect has been pointed out. However,
considering the nature of the charges and the time that has
lapsed during the intervening period as well as the infirmities
crept in the departmental proceeding, we find and held that any
remand to the competent authority for initiation of fresh
proceeding would harsh and would practically deny any relief to
the writ petitioner and undue premium to the appellants. Hence,
the interest of justice would be served if the writ petitioner-
respondent herein would be reinstated, as has already been done
and is granted 50% of the salary and other allowances due for
the period in which she remained out of service.
28. In view of the settled legal proposition and the
discussions made hereinabove, we partly modify the order of the
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learned Single Judge dated 27.06.2025 passed in C.W.J.C. No.
7980 of 2015 to the extent indicated hereinabove.
29. The present Letters Patent Appeal stands partly
allowed. However, there shall be no order as to cost.
(Harish Kumar, J)
Sangam Kumar Sahoo, CJ: I agree
(Sangam Kumar Sahoo, CJ)
uday/-
AFR/NAFR AFR
CAV DATE 06.05.2026
Uploading Date 26.05.2026
Transmission Date NA
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