The Bihar State Power Holding Company … vs Abhinita on 26 May, 2026

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    Patna High Court

    The Bihar State Power Holding Company … vs Abhinita on 26 May, 2026

    Author: Harish Kumar

    Bench: Harish Kumar

              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
                                                 2/33
    
    
    
    
                                              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,
    Patna High Court L.P.A No.769 of 2025 dt. 26-05-2026
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    petitioner shall be reinstated within a period of
    one month from the receipt of this order.”

    SPONSORED

    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
    Patna High Court L.P.A No.769 of 2025 dt. 26-05-2026
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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
    25/33

    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
    26/33

    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
    27/33

    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
    Patna High Court L.P.A No.769 of 2025 dt. 26-05-2026
    28/33

    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
    29/33

    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
    30/33

    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
    Patna High Court L.P.A No.769 of 2025 dt. 26-05-2026
    31/33

    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
    Patna High Court L.P.A No.769 of 2025 dt. 26-05-2026
    32/33

    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
    Patna High Court L.P.A No.769 of 2025 dt. 26-05-2026
    33/33

    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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