2026:JHHC:21023 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.59 of 2016 --------- Baijnath Mahto, son of Late Charku Mahto, Resident of village Kedia Basti, P.O. Kedla, P.S. Mandu, District Ramgarh. … … Petitioner Versus 1. Central Coalfields Limited, Ranchi through its Chairman, Darbhanga House, P.O. G.P.O., P.S. Kotwali, District Ranchi. 2. Director (Personnel), Central Coalfields Limited, Darbhanga House, P.O. G.P.O., P.S. Kotwali, District Ranchi. 3. General Manager (Personnel & IR), Central Coalfields Limited, Ranchi, P.O. G.P.O., P.S. Kotwali, District Ranchi. 4. Chief General Manger (H), Central Coalfields Limited, Ranchi, Darbhanga House, P.Ο. G.P.O., P.S. Kotwali, District Ranchi. 5. Project Officer, Central Coalfields Limite, Kedla Open Cast Project, Hazaribagh, P.O. and P.S. Hazaribagh, District - Hazaribagh. 6. The Central Coal Mines Provident Fund, Darbhanga House, P.O. - G.P.O., P.S. - Kotwali, District - Ranchi, 834001. … … Respondents --------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD ---------- For the Petitioner : Mr. A. Allam, Sr. Advocate : Ms. Asfia Sultana, Advocate : Mr. Faisal Allam, Advocate For the Respondents : Mr. Dilip Kr. Chakravarty, Advocate : Mr. Romit Kumar, Advocate ----------- C.A.V. on 24.06.2026 Pronounced on 15/07/2026 Prayer: 1. The writ petition is under Article 226 of the Constitution of India seeking therein the following reliefs :- (i) To pay post retiral dues to the petitioner specially the amount of pension, leave encashment and part of gratuity. 2026:JHHC:21023 2 (ii) To pay arrears of salary to the petitioner from the date the petitioner was dismissed from the service i.e. with effect from 16.08.1989 till the date of reinstatement i.e. January, 2015 as after quashing of the dismissal proceeding from this Hon'ble Court, no further proceeding has ever been initiated. (iii) To pay pension for the mental torture and agony for more than 25 years when the petitioner was summarily dismissed in the year 1989 without any basis as the respondent had no document or evidence to prove its case. So, subsequently when this Hon'ble Court granted long and sufficient time for proceeding afresh, then the respondents completely backed out as it has no evidence nor any document to prove. So, ultimately the petitioner was reinstated and retired on 30.11.2015. Factual Matrix: 2. The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated herein, are as under: The petitioner was employed by the respondent Central Coalfields Limited on the ground of being displaced person as 3.18 Acres of land were acquired by the respondent. So, the petitioner was appointed in the year 1981 as EP Helper 2026:JHHC:21023 3 Category II in the respondent Central Coalfields Limited, Kedla Colliery. On 06.03.1989, an F.I.R. was registered against the petitioner vide Mandu P.S. Case No. 96/ 1989 for the offence under Section 379 and 411 of the Indian Penal Code for stealing some wire of Rs.1,000/-wherein the petitioner was acquitted. On 06.03.1989 itself, the petitioner was suspended from the service and within a short span of time i.e. on 16.08.1989, he was dismissed from the service. It is stated that no any second show cause notice was given to the writ petitioner nor the dismissal order was document based. Only one witness was examined who was also declared hostile during the enquiry, even then petitioner was dismissed. Being aggrieved, the petitioner filed a departmental appeal on 15.12.1989, which was kept pending for 15 years. Thereafter, the petitioner had filed one Writ Petition i.e. W.P.(S) No. 3956 of 2005, which was heard and disposed of by this Hon'ble Court on 18.08.2005 with an observation that the Appellate Authority may dispose of the appeal as expeditiously as possible. In spite of the direction of the High Court, when the appeal of the petitioner was not disposed of, the petitioner filed a contempt application i.e. Contempt (Civil) Case No.260 of 2006 wherein this Hon'ble Court vide its order dated 2026:JHHC:21023 4 19.08.2006 again directed to dispose of the appeal within a period of two months. After disposal of the contempt application, the departmental appeal was disposed of and the same was rejected. Thereafter, the petitioner filed another Writ Petition i.e. W.P.(S) No. 412 of 2007 for setting aside the dismissal order on the ground that the dismissal order of the petitioner was not based upon documentary or oral evidence as also on the ground that the second show cause notice was not given and on the other hand, in criminal case the petitioner was acquitted. The Hon'ble High Court, vide order dated 11.11.2009, set aside the Dismissal Order. However, matter was remitted back to the disciplinary authority to pass fresh order on the basis of the inquiry report, after affording a reasonable opportunity to the petitioner for submitting his grounds/explanation against the punishment proposed, if any. It has further been directed that the said exercise must be initiated and concluded within a period of three months from the date of receipt/production of copy of the order. Despite the dismissal order having been set aside by the judgment of this Court dated 11.11.2009, the respondent-department failed either to reinstate the petitioner in service or to initiate any fresh departmental proceedings in accordance with law. Such deliberate inaction, being in 2026:JHHC:21023 5 derogation of the binding directions of this Court, constrained the petitioner to institute Contempt (Civil) Case No. 213 of 2010, alleging wilful disobedience of the order dated 11.11.2009. While the contempt application was going on, the order was passed on 05.10.2012 by the High Court that still the department may complete the enquiry within period of three months from the date of order i.e. a from 05.10.2012. Even this order was not complied. The contempt proceeding proceeded afresh and the Court, vide order dated 27.09.2013, sent the matter before the National Lok Adalat, but having no effect. When the petitioner was neither reinstated in service nor the backwages were given, then the General Manager, Central Coalfields Limited was directed to be present before the Court vide order of the High Court dated 17.01.2014. The respondents, thereafter, made excuse and agreed to allow joining of the petitioner. In the meantime, a review petition was also filed by the Central Coalfields Limited being Civil Review No. 98/ 2012 which was heard along with Contempt Case No. 213 of 2010. In these applications, the Hon'ble High Court rejected the Review Application on 04.07.2014. Even the High Court had observed that the backwages may be given which the petitioner is demanding not 100% but part of it. 2026:JHHC:21023 6 After dismissal of the Review Application on 04.07.2014, the Contempt Case proceeded and finally on 15.01.2015, the petitioner was allowed to be reinstated as the order of reinstatement was already passed on 24.12.2014, then the High Court was pleased to drop the Contempt Proceeding on 16.01.2015 with a liberty to the petitioner to claim salary and other benefits from the respondents in separate application. On the one hand, the petitioner was reinstated on 15.01.2015 and on the other hand, two different Letters Patent Appeals were filed before this Hon'ble Court one against the order dated 04.07.2014 passed in Civil Review Petition no. 98/ 2012 and another against the order dated 11.11.2009 passed in W.P.(S) No. 412 of 2007. The Letters Patent Appeals were numbered as L.P.A. No. 413 of 2014 and L.P.A. No. 414 of 2014. Both the Letters Patent Appeal filed by the respondents were rejected by the High Court on 07.12.2015, having no merit. Even after dismissal order was set aside by this Hon'ble Court on 11.11.2009, the backwages were not given. Once on 31.03.2014, when the contempt proceeding was going on and the matter was referred before the Lok Adalat, then the respondents offered only Rs.2 Lacs. as backwages which were also not paid. It is the case of the petitioner that he was allowed to join on 15.01.2015 after six years of setting aside of the dismissal 2026:JHHC:21023 7 order and he was made to retire on 30.11.2015. By this time only Rs.1,24,000/- has been paid to the petitioner against Gratuity although the gratuity of the CCL employees is fixed at Rs.10 Lac. It is the further case of the petitioner that the petitioner has neither been paid any amount of pension nor any amount of leave encashment. In absence of any enquiry and in a situation when the dismissal order was set aside, the entire service period of the petitioner shall be counted as continuous service for the purpose of retiral dues. Even then the petitioner has not been paid pensionary benefits till date and the respondent is demanding Rs.6 Lac. from the petitioner in G.P.F. Head for the period the petitioner was not reinstated and since the petitioner was such a low paid employee that he is starving. So, he cannot pay such amount against the head of GPF. So, taking the entire period as service period, the petitioner may be paid his full pension and full back wages. 3. It is evident from the factual aspect that the petitioner was appointed in the year 1981 as EP Helper Category II in the respondent Central Coalfields Limited, Kedla Colliery on the ground of being displaced person as 3.18 Acres of land of the petitioner was acquired by the respondent. 4. On 06.03.1989, a criminal case was registered against the petitioner for the offence under Section 379 and 411 of the 2026:JHHC:21023 8 Indian Penal Code for stealing some wire of Rs.1,000/- and on the same day, the petitioner was suspended from the service. 5. After enquiry, the petitioner was dismissed from the service on 16.08.1989. 6. The petitioner moved before this Court against the order of dismissal by filing writ petition which was allowed by setting aside the dismissal order. 7. The department challenged the order passed in the writ petition by filing Letters Patent Appeal but the appeal was dismissed. 8. Meanwhile, the respondents, allowed the petitioner to join service on 15.01.2015. The petitioner retired from service on 30.11.2015 but after retirement he was not given the retiral benefits and other benefit which is the grievance of the petitioner in the instant writ petition. Submission on behalf of the Petitioner: 9. Learned counsel for the petitioner has taken the following grounds in challenging the impugned order: (i) It has been submitted that the order of dismissal having been set aside by the High Court and the said judgment having attained finality upon dismissal of the Letters Patent Appeal, the dismissal is rendered illegal in the eyes of law and the petitioner cannot 2026:JHHC:21023 9 be made to suffer financial loss on account of an illegal action of the employer. (ii) The petitioner remained out of service solely because of the illegal dismissal order passed by the respondents. (iii) It has been submitted that the delay in reinstatement was attributable to the respondents, who continued to contest the matter unsuccessfully. (iv) It has also been submitted that once reinstatement is ordered pursuant to setting aside the dismissal order, continuity of service ordinarily follows unless specifically denied by the Court and continuity of service carries with it consequential benefits, i.e., back wages and pensionary benefits. (v) It has been submitted that Pension, gratuity, leave encashment, provident fund, and other retiral dues are statutory or contractual rights and cannot be withheld except in accordance with law. 10. Learned counsel for the petitioner, on the aforesaid premise, has submitted that direction be issued upon the respondents to pay to the petitioner the post retiral dues specially the amount of pension, leave encashment and part of gratuity. 2026:JHHC:21023 10 Submission on behalf of the Respondents: 11. Learned Senior counsel for the respondents has taken the following grounds in defending the impugned order: (i) It has been submitted that the writ petition filed by the petitioner is not maintainable either in law or on facts and the same is fit to be dismissed in limine. (ii) The petitioner was out of service for about 25 years and for this period he is not entitled for gratuity and back wages. (iii) It has been submitted that although the dismissal order was set aside and the petitioner was reinstated, there was no specific direction in the judgment granting back wages. (iv) It has been submitted that reinstatement and back wages are separate reliefs, and back wages are granted only after considering the facts of each case. (v) Learned Senior counsel has further submitted that the petitioner has not pleaded or proved that he remained unemployed during the period from 16.08.1989 to 15.01.2015 and the burden initially lies on the employee to assert that he was not gainfully employed. (vi) It has been submitted that the petitioner remained out of service for nearly 26 years and awarding back 2026:JHHC:21023 11 wages for such a long period would impose an enormous financial burden on the public sector undertaking and would amount to unjust enrichment. (vii) Learned Senior counsel has further submitted that the principle of "no work, no pay, will be applicable in this case since the petitioner did not render any service during the relevant period and therefore is not entitled to back wages. (viii) In order to strengthen his argument, the learned Senior Counsel has relied upon the following judgments: a) Rajasthan SRTC, Jaipur v. Phool Chand (dead) through legal representatives, (2018) 18 SCC 299. b) Allahabad Bank and Ors. v. Krishan Pal Singh, (2021) 19 SCC 227. 12. Learned counsel for the respondents, on the aforesaid premise, has submitted that the instant writ petition is fit to be dismissed. Analysis 13. This Court has heard learned counsel for the parties and has gone through the pleading made in the writ petition as also the grounds taken in the counter affidavit. 2026:JHHC:21023 12 14. It is the admitted fact herein that the petitioner was appointed in the year 1981 as EP Helper Category II in the respondent Central Coalfields Limited, Kedla Colliery on the ground of being displaced person as 3.18 Acres of land of the petitioner was acquired by the respondent. 15. On the ground of institution of criminal case against the petitioner for the offence under Sections 379 and 411 of the Indian Penal Code, the petitioner was suspended from service. Subsequently, he was dismissed from the service on 16.08.1989. 16. The petitioner moved before this Court by filing writ petition against the order of dismissal which was allowed by setting aside the dismissal order against which the respondents preferred Letters Patent Appeal but the appeal which was dismissed. Consequently, the petitioner was reinstated in service with effect from 15.01.2015. 17. The petitioner retired from service on 30.11.2015 but he was not given the retiral benefits. 18. In the backdrop of the aforesaid admitted facts, the issues which require consideration by this Court are - (i) Whether in the aforesaid factual background the principle of ‘no work no pay’ will be applicable if no fresh order of punishment has been passed in pursuance to the order of remand passed by the High 2026:JHHC:21023 13 Court in its order dated 11.11.2009 passed in W.P.(S) No.412 of 2007? (ii) Whether, in the absence of a fresh order being passed by the disciplinary authority pursuant to the order of remand by this Court, the findings recorded by the enquiry officer would not remain inoperative and dormant. (iii) Whether once the finding recorded by the enquiry officer becomes redundant due to non-passing of the fresh order by the disciplinary authority on remand, the principle of ‘no work no pay’ will be applicable? 19. All these issues since are interlinked, therefore, they are being taken up together for its consideration. 20. This Court, before considering the aforesaid issues, needs to refer herein that the order passed by the learned Single Judge dated 11.11.2009 in W.P.(S) No.412 of 2007, has attained its finality and not only that the said order has been enacted by the respondent authorities by passing an order of reinstatement but so far as the other directions to pass order afresh for which the matter was remitted before the disciplinary authority but no decision was taken, rather, no proceeding was initiated thereafter. 21. On consideration of the representation of the writ petitioner, which has been accepted partially by allowing the writ petitioner to join the service denying the back wages, part 2026:JHHC:21023 14 of non-payment of back wages is also under challenge in this writ petition. 22. The principle of ‘no work no pay’ is not a routine to be followed but it depends upon the factual aspects to which the principle of ‘no work no pay’ is to be made applicable. The ‘no work no pay’ will be applicable in a situation if the employee willfully has not discharged the duty. On the other hand, if the employee is willing to discharge the duty and duty has not been taken, then in such circumstances ‘no work no pay’ will not be applicable. 23. Thus, there is no dispute about the fact that the principle of ‘no work no pay’ is applicable in a case where the employee has not discharged his duty but it has got exception and it will not be applicable in a case where the employee was willing to work but had not been allowed to discharge the duty and if such a condition would be there, the principle of no work no pay will not be applicable, as has been held by the Hon’ble Apex Court (three judges) in the case of Union of India and Others Vs. K.V. Jankiraman & Ors., (1991) 4 SCC 109, at paragraph 25, relevant passage of which reads as under: “25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for 2026:JHHC:21023 15 this reason that F.R. 17(1) will also be inapplicable to such cases.” 24. Likewise, in Commissioner, Karnataka Housing Board Vs. C. Muddaiah reported in (2007) 7 SCC 689 it has been held at paragraph 34 as hereunder: - “34. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected.” (emphasis supplied) 25. Further, in Jasmer Singh Vs. State of Haryana and Another reported in (2015) 4 SCC 458, at paragraph 21 and 22, it has been held as under: - “21. The said relief in favour of the appellant-workman, particularly the full back wages is supported by the legal principles laid down by this Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, 2026:JHHC:21023 16 wherein the Division Bench of this Court to which one of us was a member, after considering three-Judge Bench decision, has held that if the order of termination is void ab initio, the workman is entitled to full back wages. 22. The relevant para of the decision is extracted hereunder:- "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 concerned employee, 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. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments." 2026:JHHC:21023 17 26. Thus, it is evident that larger Bench of the Hon’ble Apex Court in the case of Union of India and Others Vs. K.V. Jankiraman (supra) has held that although no work no pay is the normal rule, but it has got exception and it will not be applicable in a case where the employee was willing to work but had not been allowed to discharge the duty and if such a condition would be there, the principle of no work no pay will not be applicable. 27. Likewise, in Commissioner, Karnataka Housing Board Vs. C. Muddaiah (supra), similar view has been taken holding therein that an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law, cannot be said to be acceptable. 28. The Hon’ble Apex Court has also taken into consideration the issue of “No Work No Pay” in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324 wherein paragraph no.38, parameters have been laid down for the purpose of consideration of the back wages. The aforesaid principle has been carved out by considering the fact that due to disengagement or termination keeping out the concerned employee from discharging duty the suffering is to be taken care of and the concerned employee is required to be compensated by passing an order of the back wages. For ready reference, paragraph no.38 of the aforesaid judgment is being quoted hereunder: 2026:JHHC:21023 18 “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 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 2026:JHHC:21023 19 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 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 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 2026:JHHC:21023 20 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. 38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal 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.—" 29. It is evident from the aforesaid judgment, more particularly para-38.3 which starts as “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 than to prove a negative fact. Therefore, once the employee shows that he was 2026:JHHC:21023 21 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.” It is, thus, evident from the aforesaid paragraph that the ordinarily a pleading is to be made before the adjudicating authority of the court of first instance that he/she was not gainfully employed. 30. Further, from paragraph-38.4, it would be evident that the Hon'ble Apex Court has been pleased to lay down that the case 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. 31. Further, from paragraph-38.5, it would be evident that 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 2026:JHHC:21023 22 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. 32. Further, from paragraph-38.6, it would be evident that 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 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 2026:JHHC:21023 23 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. 33. It is, thus, evident that the guidelines as under para-38 of aforesaid judgment, is in two parts, first part deals with the part of pleading to be made by the concerned workman of having not gainfully employed, however, if the learned labour court or the industrial tribunal is exercising the power conferred under Section 11-A of the Act, 1947 and if the punishment has been found to be disproportionate to the misconduct found proved, then the discretion is upon the adjudicator not to award full back wages. 34. It is pertinent to mention herein that this Court has also considered the principle of “no work no pay” in L.P.A. No. 80 of 2020 vide order dated 10.01.2022 wherein this Court has categorically observed by taking into consideration the factual aspect of the said case that once the order of dismissal has been quashed and set aside by the learned Single Judge which was accepted by the State respondent therefore, we are not hesitate in holding that the writ petitioner was forcefully deprived from discharging his duty which subsequently has been found to be correct by this Court. 2026:JHHC:21023 24 35. 2026:JHHC:21023 24 35. It has further been observed by this Court that since the writ petitioner is pursuing his litigation before this Court right from the date of his termination and as such, it cannot be said that the writ petitioner was not willing to discharge his duty, observation is being made, on the basis of the fact that once the litigant is contesting the case for reinstatement in service by quashing the order of dismissal, it cannot be said that he was not interested to discharge his duty. 36. This Court after taking into consideration the aforesaid observation has refused to interfere with the order of learned Single Judge whereby direction was passed upon the respondent State to pay the arrears of salary to the petitioner for the period from 25.08.2001 to 12.01.2009 within the stipulated period of eight weeks. 37. The aforesaid order passed in the said LPA has been assailed by the state before the Hon’ble Apex Court by filing Special Leave to Appeal (C) No.16868/2022 and the same was dismissed by the Hon’ble Apex Court by holding that there is no merit in the Special Leave Petition. 38. This Court, before proceeding to consider the issues, deems it fit and proper also to refer the judgment upon which reliance has been placed on behalf of the respondents with respect to its applicability. 39. So far as the judgment relied upon by the appellant rendered in the case of Rajasthan SRTC v. Phool Chand 2026:JHHC:21023 25 (Supra) is concerned it is evident from factual aspect of the said case that the appellant was State Road Transport Corporation for the State of Rajasthan. The deceased, Phool Chand was in the employment of the appellant as a driver. 40. The appellant dismissed Phool Chand from the service after holding departmental inquiry on the ground of dereliction of duties on various occasions while he was in the employment. The charge against the deceased workman was his continuous absence from the work, which was proved. 41. Phool Chand felt aggrieved by his dismissal and filed an application before the Labour Court. The Labour Court, by award dated 26-2-1996 held the charge against Phool Chand as proved but interfered in the quantum of punishment. The Labour Court converted the punishment of removal from service to that of “stoppage/forfeit of four annual grade increments without cumulative effect” and directed the reinstatement of the deceased workman in service with award of full back wages for the period of 13 years (16-11-1983 to 24- 2-1996). 42. The appellant (employer), being aggrieved by the award of the Labour Court, filed a writ petition in the High Court of Rajasthan. The Single Judge of the High Court, dismissed the writ petition filed by the appellant and affirmed the award passed by the Labour Court. 2026:JHHC:21023 26 43. Being aggrieved by the order of the Single Judge, the appellant filed intra-court appeal. By the impugned order, the Division Bench of the High Court dismissed [Rajasthan SRTC v. Phool Chand, SAW No. 912 of 1998, decided on 12- 2-2008 (Raj)] the special appeal and upheld the order of the Single Judge, which gave rise to filing of appeal by way of special leave by the appellant employer in this Court. 44. The Hon’ble Apex Court after having heard the learned counsel for the parties and on perusal of the record of the case, has allow the appeal in part and while modifying the impugned order award 50% back wages to the deceased workman (his legal representatives) in place of full wages. 45. The Hon’ble Apex Court while partly allowing the aforesaid appeal has further observed that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. 2026:JHHC:21023 27 46. There is no dispute about the aforesaid settled position of law as settled by the Hon’ble Apex Court. Herein from the factual aspect it is evident that Court, vide order dated 11.11.2009, set aside the dismissal Order and matter was remitted back to the disciplinary authority to pass fresh order on the basis of the inquiry report, after affording a reasonable opportunity to the petitioner for submitting his grounds/explanation against the punishment proposed, if any within a period of three months from the date of receipt/production of copy of the order. 47. But it is evident from record that despite the dismissal order of the petitioner having been set aside by the judgment of this Court dated 11.11.2009, the respondent-department failed either to reinstate the petitioner in service or to initiate any fresh departmental proceedings. 48. Such deliberate inaction, being in derogation of the binding directions of this Court, constrained the petitioner to institute Contempt (Civil) Case No. 213 of 2010, alleging willful disobedience of the order dated 11.11.2009. In the said Contempt case the General Manager, Central Coalfields Limited was directed to be present before the Court vide order of the Court dated 17.01.2014. The respondents, thereafter, made excuse and agreed to allow joining of the petitioner and thereafter finally on 15.01.2015, the petitioner was allowed to be reinstated. 2026:JHHC:21023 28 49. But in the case of Rajasthan SRTC v. Phool Chand (supra) upon which reliance has been placed by the respondent, the fact is totally different as in the said case the Labour Court, by award dated 26-2-1996 held the charge against Phool Chand as proved but interfered in the quantum of punishment and the Labour Court converted the punishment of removal from service to that of “stoppage/forfeit of four annual grade increments without cumulative effect”. 50. Thus, it is evident that in the said case the punishment of the employee was converted and charges was found to prove but herein in the instant case the order of punishment was quashed by this Court due to non-adherence of natural justice and the matter was remitted back to the disciplinary authority to pass fresh order, after affording a reasonable opportunity to the petitioner and that the said exercise must be initiated and concluded within three months. 51. But it is evident from record that no step was taken by the concerned department to initiate any fresh departmental proceedings against the petitioner and the thereafter finally on 15.01.2015, the petitioner was allowed to be reinstated as the order of reinstatement was already passed on 24.12.2014. 52. In view of the foregoing discussion, it is manifest that the circumstances and factual matrix of the present case are wholly distinct from those obtaining in Rajasthan State Road Transport Corporation v. Phool Chand (supra), upon which 2026:JHHC:21023 29 reliance has been placed by the learned senior counsel for the respondent. Consequently, the ratio laid down therein cannot be applied to the instant matter. 53. The learned senior counsel has also relied upon the judgment rendered in the case of Allahabad Bank v. Krishan Pal Singh(supra). In order to find out the applicability of the said judgment in fact and circumstances of the present case this court has gone through the factual aspect of the said case. 54. The sole respondent of the said case was appointed as Clerk-cum-Cashier in the appellant Allahabad Bank on 23-9- 1985 and his service was confirmed on 24-3-1986. During the year 1989, he was posted in Aurangabad Branch, District Lakhimpur Kheri, Uttar Pradesh. On 8-2-1989, there was fire accident in the Bank and an FIR was registered with regard to burning incident of Bank records by unknown persons. Suspecting the complicity of the respondent, he was placed under suspension by order dated 13-2-1989 and disciplinary proceedings were initiated against him. Ultimately, on completion of enquiry, the respondent was dismissed from service vide order dated 22-8-1991. The departmental appeal, preferred by him was rejected by appellate authority on 27-2- 1992 and further, mercy appeal was also rejected vide order dated 27-5-1992. 55. The respondent thereafter, raised the industrial dispute and the same was referred to the Central Government 2026:JHHC:21023 30 Industrial Tribunal-cum-Labour Court, Kanpur in Industrial Dispute No. 98 of 1994. The Industrial Tribunal-cum-Labour Court has passed the award dated 7-10-1997 and held that misconduct alleged against the respondent is not proved, but on the ground that a case is made out by the management of loss of confidence, has ordered payment of compensation of Rs 30,000 in lieu of reinstatement. 56. The respondent workman, aggrieved by the award of the Industrial Tribunal-cum-Labour Court, seeking reinstatement with back wages, carried the matter to the High Court by way of writ petition. The High Court, by impugned order dated 25- 4-2019, has ordered reinstatement of the respondent with all consequential benefits. The said order is subject-matter of challenge in the appeal before the Hon’ble Apex Court. 57. The Hon’ble Apex Court has taken into consideration though, there was strong suspicion against the respondent/workman, there was no acceptable evidence on record for dismissal of the workman. However, as the workman has worked only for a period of about six years and he has already attained the age of superannuation, it is a fit case for modification of the relief granted by the High Court. The Hon’ble Apex Court has further observed that the reinstatement with full back wages is not automatic in every case, where termination/dismissal is found to be not in accordance with procedure prescribed under law. Considering 2026:JHHC:21023 31 that the respondent was in effective service of the Bank only for about six years and he is out of service since 1991, and in the meantime, respondent had attained age of superannuation, we deem it appropriate that ends of justice would be met by awarding lump sum monetary compensation. 58. From the aforesaid fact it is evident that the Hon’ble Apex Court has taken into consideration that there was strong suspicion against the respondent/workman and further the said workman has worked for only six years has granted Lum sum compensation to the tune of Rs. 15 lakh but in the case at hand the order of dismissal of the petitioner has been quashed vide order dated 11.11.2009 and set-aside by this Court and matter was remitted back to the disciplinary authority to pass fresh order, after affording a reasonable opportunity to the petitioner within three months but it is apparent from record that the authority concerned has not taken any further step and consequently on 15.01.2015, the petitioner was allowed to be reinstated. Thus, from the aforesaid fact it is evident that the fact of the said case is not applicable in the fact and circumstances of the instant case. 59. Further, it is settled position of law that the applicability of judgment is to be tested on the facts and circumstances of each and every case individually. Reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in Dr. Subramanian Swamy vs. State of Tamil Nadu and 2026:JHHC:21023 32 Others, (2014) 5 SCC 75, paragraph 47 of which reads as under: “47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. “ 60. Now re-adverting to the fact of the instant case. In the present case the petitioner was appointed as a Helper in 1981. An F.I.R. was lodged on 06.03.1989 under Section 379 of the Indian Penal Code in which the petitioner was acquitted. However, on 06.03.1989 petitioner was suspended and later on dismissed from service on 16.08.1989. Thereafter the petitioner filed a writ petition being W.P.(S) No.3956 of 2005 and contempt application i.e. Cont. Case (Civil) No. 260 of 2006 and further W.P.(S) No.412 of 2007 which was allowed on 11.11.2009(vide Annexure-3) and order of dismissal was quashed and matter is remitted back to the disciplinary with direction to pass a fresh order on the basis of the inquiry report, after affording a reasonable opportunity to the petitioner for submitting his grounds / explanation against the punishment proposed, if any and further direction was passed to conclude the entire exercise within three months. 61. The Hon'ble High Court time to time on the prayer of the respondents provided several opportunities to the respondents to conduct the said exercise but the respondents failed. 2026:JHHC:21023 33 62. Further it is evident from record that meanwhile the respondent had filed civil review petition for review of order dated 11.11.2009 before this Court vide Civil Review No.98 of 2012 which was also rejected. Thereafter against the said order of civil review and also against the order dated 11.11.2009 passed in the writ petition being W.P.(C) 412 of 2007, the respondents had filed two appeals i.e. L.P.A. No. 413 of 2014 and L.P.A. No.414 of 2014, and both the said LPAs were also dismissed. 63. Further the order of reinstatement of the petitioner dated 24.12.2014 was passed by the authority concerned wherein the petitioner was directed to be reinstated but the said order was passed without back wages so the same has also been challenged herein. 64. Thus, the admitted fact herein is that the petitioner was dismissed from service which was challenged by filing writ petition being W.P.(S) No.412 of 2007 wherein vide order dated 11.11.2009 the order of dismissal has been quashed and set aside by remitting the matter before the disciplinary authority to pass order afresh under due procedure of law. 65. The respondent authorities have reinstated the petitioner in service but no fresh departmental proceeding has been initiated. The question of back wages is the issue in such circumstances as to whether if no fresh departmental proceeding has been initiated then can the petitioner be 2026:JHHC:21023 34 deprived from back wages in a situation where the finding recorded by the enquiry officer has become redundant. 66. The finding by the enquiry officer has become redundant due to the reason that the order of punishment which has been passed and having been quashed and set aside by this Court vide order dated 11.11.2009 passed in W.P.(S) No.412 of 2007 and the moment the order of punishment have been quashed and set aside, the finding recorded by the enquiry officer will also be quashed and set aside on the principle of merger of the finding recorded by the enquiry officer in the order of punishment having been accepted by the disciplinary authority. 67. Thus, the principle of merger is well settled that the moment the order passed by the lower forum is being affirmed by the higher forum, the order passed by the lower forum will lose its existence due to its merger with the order passed by the higher forum. 68. It needs to refer herein that the Hon'ble Apex Court in the case of Kunhayammed & Ors. Vrs. State of Kerala and Anr. (2000) 6 SCC 359, has appreciated the principle of merger wherefrom, it is evident that the Hon'ble Apex Court has delved upon the issue on doctrine of merger and after taking aid of the judgment rendered in U.J.S. Chopra Vrs. State of Bombay, AIR 1955 SC 633, it has been held that where an appeal or revision is provided against an order 2026:JHHC:21023 35 passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. 69. The matter would have been different in the facts and circumstances of the present case that if the disciplinary authority would have initiated a departmental proceeding afresh in pursuance to the order passed by the High Court after being remitted the matter to pass a fresh order and if in that situation the order of punishment would have been passed then the finding recorded by the enquiry officer would have been said to be survived since on the basis of the finding the order of punishment has been passed by passing order afresh in terms of the order passed by the High Court. But, that is not the situation herein. The respondents, on their own, have chosen not to initiated departmental proceeding, meaning thereby, the finding recorded by the enquiry officer has been allowed to remain inoperative. 70. In such circumstances, if the respondent authorities have not acted upon in pursuance to the order passed by the High Court in entirety and acted upon by passing an order of reinstatement in service, at this moment can they take the plea of ‘no work no pay’ in view of the fact that after quashing of the 2026:JHHC:21023 36 order of punishment the finding recorded by the enquiry officer will be said to be no more in existence then for what purpose the back wages is to be denied. 71. This Court has already referred hereinabove the judgment rendered by Hon'ble Apex Court in the case of Union of India and Ors. vs. K.V. Jankiraman and Ors. (Supra) that ‘no work no pay’ is not a normal rule, rather, it is to be made applicable based upon the factual circumstances. The normal rule is that if the concerned employee is not willing to discharge duty even though the employer has allowed to discharge the duty, then in such circumstances, ‘no work no pay’ will be applicable. But, if the concerned employee is willing to discharge the duty and it is the employer who has not allowed the said employee to perform the duty, then in such circumstances, the principle of ‘no work no pay’ will not be applicable. 72. The factual aspect herein is that in the circumstances when the petitioner has moved to this Court immediately after the order of dismissal and the order of dismissal has been quashed and set aside, can it be said that the petitioner was not willing to discharge his duty. It cannot be said since the petitioner was before the court of law challenging the order of dismissal, meaning thereby, he was willing to discharge duty therefore, he has challenged the order of dismissal. 2026:JHHC:21023 37 73. It is to be considered that the petitioner was willing to discharge his duty but it is the respondents who have not allowed him to discharge duty. Further, it is the respondents who have invited a situation by not passing the order afresh in pursuance to the order passed by this Court. 74. On the basis of discussion made hereinabove this Court is of the view that for the fault committed by the authority itself, why the writ petitioner has been deprived from the benefit of back wages without any fault on his part. 75. All the issues are answered accordingly. 76. Further, it is settled position of law that a wrong doer cannot be allowed to take advantage of his action, reference in this regard may be taken from the judgment rendered by the Hon’ble Apex Court in the case of “Kusheshwar Prasad Singh vs. State of Bihar and Ors.”, (2007) 11 SCC 447, wherein at paragraphs-14, 15 and 16, the Hon'ble Apex Court has observed as under: “14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal [AIR 1961 SC 1353] wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong). 15. … This Court (at SCC p. 142, para 28) referred to Broom's Legal Maxims (10th Edn.), p. 191 wherein it was stated: “It is a maxim of law, recognised and established, 2026:JHHC:21023 38 that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure.” 16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, “a wrongdoer ought not to be permitted to make a profit out of his own wrong”.” 77. Further, in Advanta India Limited vs. B. N. Shivanna and Anr., (2018) 14 SCC 666, the Hon'ble Apex Court has been pleased to observe at para-20 which reads as under: “20. After going through the record, we find that the BCI has shown undue indulgence to the respondent by allowing him to take advantage of his own wrong, in the guise of exercising its review power. It is a case of nullus commodum capere potest de injuria sua propria meaning thereby that a party cannot take advantage of its own wrong. This maxim is explained in Eureka Forbes Ltd. v. Allahabad Bank in the following manner: (SCC p. 217, para 66) “66. The maxim nullus commodum capere potest de injuria sua propria has a clear mandate of law that, a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations.” 78. This Court, in view of the aforesaid discussion, is of the view that the part of the order dated 24.12.2014 by which the back wages has been held to be not admissible, is against settled position of law as per the discussion made hereinabove as also per the settled position of law as settled by the Hon’ble Apex Court in the case of K.V. Jankiraman (Supra). 2026:JHHC:21023 39 79. Accordingly, the aforesaid part of the order dated 24.12.2014 by which the back wages has been denied, is hereby quashed and set aside with a direction upon the respondents to release the back wages as also the other consequential retiral benefits, preferably within six weeks. 80. Accordingly, with the aforesaid observation and direction, the writ petition stands disposed of. 81. Interlocutory application, if any, also stands disposed of. (Sujit Narayan Prasad, J.) Date : 15/07/2026 Birendra/- A.F.R. Uploaded on 17/07/2026