ORDER
Dipak Misra, C.J.
1. Questioning the legal propriety of the order dated 26.8.2009 passed by the learned Single Judge in CWJC. No. 7626 of 2009, the present intra-court appeal has been preferred.
The facts, which are requisite to be stated for adjudication of this intra-court appeal, are that the respondent -writ petitioner (hereinafter referred to as 'the respondent') is a permanent employee of the Bihar Industrial Area Development Authority ((for short, 'the BIADA') constituted under the Bihar Industrial Area Authority Act (for brevity, 'the Act'). The BIADA has a set of Regulations, namely, Bihar Industrial Area Development Authority (Finance Service and Technical) Regulations, 2007 (hereinafter referred to as 'the Regulations'). The said Regulations deal with the service conditions of the employees.
2. The respondent was dismissed from service on 14.1.2008 by the Managing Director invoking the power conferred on him under Clause 1.5(a) of the said Regulations. The said order came to be assailed in CWJC. No. 4871 of 2008, wherein the learned Single Judge expressed the view that the said Regulations were inapplicable to the respondent on the foundation that the respondent was appointed in 3.3.1978, whereas the Regulations came into force in 2007 and, therefore, it would not cover the appointees of 1978. Being of this view, the order of termination was quashed.
3. After the said order was quashed, the respondent was re-instated and a charge-sheet was issued on 31.12.2008 and an inquiry was held by the Inquiry Officer, wherein the respondent was exonerated from the charges, but it was brought to the notice of the learned Single Judge that the disciplinary authority was contemplating to differ with the findings recorded by the Inquiry Officer. It was canvassed before the learned Single Judge that the respondent was entitled to the back wages from the date of termination, that is, 14.1.2008 till the date of re-instatement, that is, 8.9.2008. The learned Single Judge appreciating the factual matrix allowed the same.
4. Questioning the correctness of the order, it is submitted by Mr. Lalit Kishore, learned senior Counsel for the appellants, that the respondent is not entitled to back wages as the inquiry is in progress and when this Court had quashed the order of termination on a technical ground, the power still remains with the disciplinary authority to proceed against the incumbent and, therefore, the grant of back wages would depend upon the final outcome of the disciplinary proceeding. It is urged by him that a shortcut method is not to be adopted in a matter of this nature and the grant of back wages has to await the ultimate eventuate of the disciplinary proceeding. To bolster the said submission, he has commended us to the decision rendered in Managing Director, ECIL, Hyderabad etc. v. B. Karunakar etc. : AIR 1994 SC 1074.
5. Mr. Amber Nath Banerjee, learned Counsel appearing for the respondent, per contra, submitted that the order passed by the learned Single Judge is absolutely impeccable and does not warrant any interference inasmuch as when the Regulations have been held to be inapplicable to the respondent - writ petitioner and there was no departmental proceeding at the initial stage, the question of applying the doctrine of relations back does not arise and grant of back wages is a natural corollary. It is his further submission that for the period commencing 14.1.2008 to 8.9.2008, he was kept out of service for no fault of his that too without initiation of a proceeding and in a highhanded and arbitrary manner an order of termination was passed. Learned Counsel for the respondent has placed reliance on the decision rendered in Novartis India Limited v. State of West Bengal and Ors. : (2009) 3 SCC 124.
6. To appreciate the submissions raised at the Bar it is appropriate to refer to Clause 1.5(a) of the Regulations. The said provision reads as follows:
1.5(a) The services of an employee may be terminated by the MD without assigning any reason by a notice of one month in writing to the employee or on payment of one month's pay and allowances in lieu of such notice.
In the case at hand, as has been indicated earlier, power has been exercised under 1.5(a). Thus, there has been no inquiry whatsoever, as such an inquiry is not contemplated while exercising power under 1.5(a). At this juncture, though Mr. Banerjee submitted that the said Clause is hit by the decision of the Apex Court in Delhi Road Transport Corporation v. D.T.C. Mazdoor Congress and Ors. : AIR 1991 SC 101, yet we need not to advert to the same as that is not the lis before us.
7. The submission of Mr. Lalit Kishore, learned senior Counsel for the appellants, is that when the order of termination has been set aside on a technical ground the fall out would not be automatic grant of back wages. He has drawn inspiration from the law down in paragraph 31 of B. Karunakar (supra) where their Lordships have held thus:
Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Courts/Tribunal which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/Tribunals find that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct re-instatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his re-instatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be re-instated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing die report and no more, where such fresh inquiry is held. That will also be the correct position in law.
8. On a careful perusal of the aforesaid paragraph, we are of the humble view, the proposition of law that has been stated by the Constitution Bench is not attracted to the factual matrix of the case at hand. We have already stated, no proceeding was initiated. It was not a case where the inquiry report was not sent to the delinquent officer and the court remitted the matter after recording reasons for initiation of a fresh inquiry. It is a case where a permanent employee was shown the door by taking recourse to Clause 1.5(a). The order of termination has a different character. This Court in the earlier writ petition had opined that the said Clause is not attracted to the respondent - writ petitioner and accordingly quashed the order of termination. Once the order of termination in such circumstances is quashed and the re-instatement is directed, the question that emanates for consideration is whether there should be grant of back wages. The learned Single Judge, as is evident from the order impugned, has granted full back wages. The submission of learned Counsel for the appellants is that the case should have awaited the result of the second inquiry. If we permit ourselves to say, there is a basic fallacy in the said submission inasmuch as there was no inquiry on the first occasion and the services of the employee were dispensed with by taking recourse to a provision, which has been held to be not applicable. In this backdrop, it is difficult to accept the submission that the grant of back wages should await the outcome of the second inquiry.
9. We will be failing in our duty if we do not note the alternative submission of Mr. Lalit Kishore, learned senior Counsel for the appellants. It is urged by him that the grant of back wages would depend upon many a facet and hence back wages should not be granted. In the case of Novartis India Limited (supra), the Apex Court after referring to the decisions in U.P. SRTC Ltd. v. Sarada Prasad Misra : (2006) 4 SCC 733, A.P. SRTC v. B.S. David Paul : (2006) 2 SCC 282, Muir Mills Unit of NTC (U.P.) Ltd. v. Swayam Prakash Srivastava : (2007) 1 SCC 491, and J.K. Synthetics Ltd. v. K.P. Agrawal : (2007) 2 SCC 433, has ruled thus:
36. The workmen had pleaded that they remained -unemployed. They stated so in their respective depositions. The fact that they survived and did not die of starvation itself could not be a ground for denying back wages to them. Even an unemployed person has a right to survive. He may survive on his past savings. He may beg or borrow but so long as he has not been employed, back wages, subject to just exceptions, should not be denied. An award of reinstatement in service was denied to them only because in the meanwhile, they attained their age of superannuation.
37. Back wages in a situation of this nature had to be granted to the respondents by way of compensation. If the principle of grant of compensation in a case of this nature is to be applied, indisputably having regard to the fact situation obtaining herein, namely, that they were doing a specialized job and were to reach their age of superannuation within a few years, grant of back wages was the only relief which could have been granted. It was furthermore not expected that they would get an alternative employment as they were superannuated. Burden of proof was undoubtedly upon the workmen. The said burden, however, was a negative one. Once they discharged their burden by deposing before the Tribunal, it shifted to the employer to show that their contention that they had not been employed, was incorrect. No witness was examined on behalf of the employer. Even there was no pleading in that behalf.
x x x x x x x x x40. In M.P. Admn. v. Tribhuban (2007) 9 SCC 748, while reiterating the principle relating to grant of back wages in some of the decisions to which we had adverted to, this Court opined that the court should consider each case on its own merits. So far as the issue that the orders of transfer were not in question, in the case of the parties themselves in Bikash Bhushan Ghosh v. Novartis India Ltd. : (2007) 5 SCC 591, it was observed that the orders of transfer were not in issue before the Tribunal.
Applying the aforesaid ratio to the obtaining factual matrix, there cannot be any scintilla of doubt that the factual matrix commends that full back wages should be granted inasmuch as a permanent employee was thrown out of service without application of mind. Ergo, the relief granted by the learned Single Judge granting back wages cannot be flawed.
10. In view of the preceding analysis, we do not perceive any merit in this appeal and accordingly the same stands dismissed without any order as to costs.