Chattisgarh High Court
Sunil Kumar Bharti vs State Of Chhattisgarh on 26 June, 2025
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Digitally signed
by RAMESH 2025:CGHC:28080
KUMAR VATTI
Date: 2025.07.01
15:32:10 +0530 NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 1428 of 2017
1 - Sunil Kumar Bharti S/o Shivkumar Bharti, Aged About 32 Years R/o Near
Sai College, Banaras Road, Ambikapur, Surguja, District Surguja
Chhattisgarh
... Petitioner
Versus
1 - State Of Chhattisgarh Through Secretary, Home Police Department,
Mahanadi Bhawan, Mantralaya, Capital Complex, New Raipur, District Raipur
Chhattisgarh
2 - Director General Of Police, Police Headquarters, City Raipur, District
Raipur, Chhattisgarh P I N Code 492001
3 - Inspector General Of Police, Surguja Range, Chhattisgarh, District
Surguja Chhattisgarh
4 - Superintendent Of Police, Surajpur, District Surajpur Chhattisgarh
... Respondents
For Petitioner : Ms. Anushka Sharma, Advocate
holding the brief of Mr. Manoj Paranjpe,
Advocate
For Respondents : Mr. Pramod Shrivastava,
Deputy Government Advocate
Hon’ble Shri Justice Rakesh Mohan Pandey
Order on Board
26/06/2025
1. The petitioner has filed this petition seeking the following relief(s):-
10.1 That, this Hon’ble Court may kindly be leased to issue a
writ/writs, direction/directions, order/orders and the impugned
order dated 09.08.2016, passed by the Director General of
Police, Raipur, so far as it relates to refusal to grant salary and
allowances for the period of suspension and regularization of the
period of suspension and other consequential benefits, may
2kindly be set-aside and respondents may kindly be directed to
consider the case of the petitioner for grant of salary and
allowances for the period of suspension i.e. from 23.08.2012 to
09.08.2016 and they may further be directed to regularize the
period of suspension treating the said period as duty for all
purposes with all consequential benefits.
10.2 That, this Hon’ble Court may kindly be leased to issue a
writ/writs, direction/directions, order/orders and the respondent
authorities may kindly be directed to consider the case of the
petitioner to participate in the departmental promotional
examination 2017 scheduled to be held between 26.03.2017 to
28.03.2017 for the promotion of Head Constables to the post of
Assistant Sub-Inspector, Grade-A.10.3 That, this Hon’ble Court may kindly be pleased to grant any
other relief(s), which is deemed fit and proper in the aforesaid
facts and circumstances of the case.
2. Ms. Anushka Sharma, learned counsel appearing for the petitioner
would submit that the petitioner was holding the substantive post of
Head Constable as he was appointed as a Constable vide order dated
22.10.2003. She would contend that the petitioner was promoted to the
post of Head Constable vide order dated 30.04.2011. She would further
contend that the petitioner was placed under suspension vide order
dated 23.08.2012 and an article of charge was also issued. It is
contended that the penalty of removal from services was passed by the
Disciplinary Authority vide order dated 26.04.2014. She would further
contend that the order of removal was affirmed by the Appellate
Authority. She would argue that a mercy appeal was preferred before
respondent No. 2 and it was allowed vide order dated 09.08.2016 in
the absence of cogent evidence. She would also contend that the
authority concerned passed an order of reinstatement but the period
for which petitioner remained out of service, was declared as ‘no work
no pay’. Ms. Anushka Sharma would state that the mercy appeal
preferred by the petitioner was allowed by respondent No. 2, therefore,
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in light of the FR 54, the petitioner would be entitled to back wages.
She has placed reliance on the judgment passed by the Hon’ble
Supreme Court in the matter of Maharashtra State Road Transport
Corporation Vs. Mahadeo Krishna Naik reported in (2025) 4 SCC
321 wherein it is held that reinstatement of a government servant
would bring its position, which he was holding before dismissal or
removal or termination of service. She would pray that the respondents
may be directed to make payment of back wages/arrears of salary.
3. Mr. Pramod Shrivastava, learned Deputy Government Advocate
appearing for the State/respondents would oppose. He would submit
that the petitioner was removed from services and the mercy appeal
preferred by him was allowed vide order dated 09.08.2016. He would
contend that the evidence led by the department in the departmental
enquiry was not found sufficient and it was observed that the
department could not prove the charges. He would also contend that
the petitioner failed to plead and prove the fact that he was not
gainfully employed during that period, therefore, the petition deserves
to be dismissed.
4. I have heard learned counsel for the parties and perused the
documents available on the record.
5. In the matter of Mahadeo Krishna Naik (supra), the Hon’ble Supreme
Court while dealing with this issue held that the reinstatement would
entitle the employee to back wages and if the employer wants to deny,
it has to plead and prove the fact that during the intervening period, the
employee was gainfully employed. The relevant paragraph 44 is
reproduced herein below:-
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“44. There have been decisions of this Court
rendered thereafter where a shift in approach on
awarding full back wages is clearly discernible.
However, a coordinate Bench of this Court in Deepali
Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya, (2013) 10 SCC 324 considered a
dozen precedents on award of back wages upon
reinstatement (referred to in paras 13 and 14).
Speaking through Hon’ble G.S. Singhvi, J. (as his
Lordship then was), the legal position was neatly
summed up in the following words: (SCC pp. 344 &
356-58, paras 22 & 38)“22. The very idea of restoring an employee to
the position which he held before dismissal or
removal or termination of service implies that the
employee will be put in the same position in
which he would have been but for the illegal
action taken by the employer. The injury suffered
by a person, who is dismissed or removed or is
otherwise terminated from service cannot easily
be measured in terms of money. With the
passing of an order which has the effect of
severing the employer-employee relationship, the
latter’s source of income gets dried up. Not only
the employee concerned, but his entire family
suffers grave adversities. They are deprived of
the source of sustenance. The children are
deprived of nutritious food and all opportunities of
education and advancement in life. At times, the
family has to borrow from the relatives and other
acquaintance to avoid starvation. These
sufferings continue till the competent
adjudicatory forum decides on the legality of the
action taken by the employer. The reinstatement
of such an employee, which is preceded by a
finding of the competent judicial/quasi-judicial
body or court that the action taken by the
employer is ultra vires the relevant statutory
provisions or the principles of natural justice,
entitles the employee to claim full back wages. If
the employer wants to deny back wages to the
employee or contest his entitlement to get
consequential benefits, then it is for him/her to
specifically plead and prove that during the
intervening period the employee was gainfully
employed and was getting the same
emoluments. The denial of back wages to an
employee, who has suffered due to an illegal act
of the employer would amount to indirectly
punishing the employee concerned and
rewarding the employer be relieving him of the
5obligation to pay back wages incluing the
emoluments.
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 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
averment about its existence. It is always easier
to prove a positive fact that 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.
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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
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 Articles 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 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 finally 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-a-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
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course suggested in Hindustan Tin Works (P)
Ltd. v. Employees, (1979) 2 SCC 80.
38.7 The observation made in J.K. Synthetics
Ltd. v. K.P. Agrawal, (2007) 2 SCC 433 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.” (emphasis supplied)
6. Taking into consideration the fact that the order of reinstatement was
passed on 09.08.2016 by respondent No. 2 with the stipulation that the
petitioner would not be entitled to the salary of the intervening period,
and after reinstatement, the petitioner has claimed back wages,
therefore, this petition, at this juncture, is disposed of reserving liberty
in favour of the petitioner to make a representation before respondent
No. 2 within a period of 30 days from today and in turn, the authority
concerned is directed to decide the representation strictly in
accordance with the law keeping in mind the law laid down by the
Hon’ble Supreme Court in the matter of Mahadeo Krishna Naik
(supra) within a further period of 90 days.
7. With the aforesaid direction(s)/observation(s), the petition is disposed
of. No costs.
Sd/-
(Rakesh Mohan Pandey)
Judge
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