Emphasizing that an employee cannot be penalized for the employer’s own wrongful act, the Patna High Court held that once the order of compulsory retirement was quashed, the alleged misconduct could not form the basis to deny consequential benefits. The Court therefore directed the Bihar Industrial Area Development Authority (BIADA) to pay 70% of back wages to the petitioner for the period during which he was compulsorily retired and later reinstated following a High Court order.
A Single Judge Bench of Justice Anil Kumar Sinha observed that once the compulsory retirement was quashed, the presumption shifted in favor of full reinstatement with back wages, and the onus was on BIADA to prove that the petitioner was gainfully employed. The Bench also reiterated that an employee whose termination is declared illegal is ordinarily entitled to full back wages, except to the extent of proven gainful employment.
Reference was made to the decision in the case of Hindustan Tin Works Ltd. v. Employees of Hindustan Tin Works Ltd. [(1979) 2 SCC 80], as well as Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya [(2013) 10 SCC 324], where it was held that denial of back wages amounts to indirectly punishing the employee and rewarding the employer, unless the employer proves the employee’s gainful employment during the intervening period.
The Bench also found that the petitioner had affirmed on affidavit before the appellate authority that he was not gainfully employed, and the BIADA failed to produce any evidence to the contrary, thus failing to discharge its burden. The Bench also rejected the plea of “double payment”, holding that an employee wrongfully kept out of service cannot be denied wages on the ground that someone else performed his duties.
Lastly, the Bench concluded that ordinarily, a workman whose service has been illegally terminated is entitled to back wages for the period of enforced idleness, and the burden to prove gainful employment lies on the employer, not the employee.
Briefly, in this case, the petitioner was appointed as a Peon in the erstwhile North Bihar Industrial Area Development Authority. After the formation of BIADA in 2003, his services were transferred to the new authority. In 2007, he was issued a charge memo alleging unauthorized absence, failure to attend calls from superior officers, and negligence of duty. The petitioner responded that he did not own a mobile phone due to financial constraints, having instead provided his landline number. Despite this explanation, BIADA’s Managing Director issued an order compulsorily retiring him.
The petitioner challenged the compulsory retirement, which was allowed, and the respondents were directed to consider his back-wage claim. He accordingly submitted a representation, seeking back wages for the period of enforced retirement, which was rejected, stating that he was a temporary employee and was habitually absent, coupled with the fact of his failure to prove lack of gainful employment. The BIADA also claimed that they had already paid others for work done in his absence. This order was upheld by the Principal Secretary, Department of Industries.
Appearances:
Advocate Prashant Sinha, for the Petitioner
Advocates Abbas Haider and Partha Gaurav, for the Respondents
