Payment Of Back Wages Not An Automatic Consequence Of Unlawful Dismissal: Calcutta High Court

The Calcutta High Court has held that the direction of payment of back wages is discretionary and it vests a court with the authority to consider the totality of facts and circumstances in any individual case.

A division bench comprising Justice Tapabrata Chakraborty and Justice Partha Sarathi Sen observed that no universal rule or straitjacket formula can be applied in such matters.

“Direction towards payment of back wages is a discretionary power which has to be exercised by a court keeping in mind the facts in their entirety and neither a strait jacket formula nor a rule of universal application can be laid down in such cases,” the division bench held.

The court made this observation while dismissing a petition challenging a judgment passed by a Single Bench of the High Court. The Single Bench had earlier set aside the findings of the disciplinary authority and appellate authority holding that the penalty of compulsory retirement imposed on the writ petitioner/appellant was not in consonance with law.

The writ petitioner (appellant), an Assistant Sub-Inspector, Railway Protection Force, was arrested in September 2009 in connection with a criminal case under Sections 304B, 497 and 498A of the Indian Penal Code. Following his arrest, the appellant was placed on suspension and subsequently awarded the penalty of compulsory retirement on November 23, 2012. Challenging the disciplinary authorities' and appellate authority's decisions, the appellant filed a writ petition, which was allowed. However, the present appeal arose when the appellant sought back wages for the period of his suspension.

The petitioner argued that the Single Bench erred by not granting back wages, asserting that there should be no restriction on awarding back wages, particularly as he was suspended and charge-sheeted without fault on his part.

The respondent countered that the writ petitioner did not provide any averment or evidence in his writ petition to demonstrate that he was not gainfully employed during the suspension period. Consequently, the Single Bench acted within its jurisdiction in refraining from ordering payment of back wages.

The Court in its judgement clarified that a terminated employee seeking back wages is required to explicitly plead or provide a statement before the court of first instance or adjudicating authority that they were not gainfully employed or were employed at a lower wage. Without such material on record, there can be no automatic direction for back wages.

The court further highlighted, “On perusal of the entire materials as placed before us and on consideration of the reported decision of the Hon'ble Apex Court as cited from the side of the Bar it appears to us that the legal position is fairly settled by a catena of decisions that direction to pay back wages in its entirety is not an automatic consequent upon the declaration of dismissal order bad in law.”

“The concept of discretion is in-built in such exercise. The court is required to exercise such discretion reasonably and judicially keeping in view the facts and circumstances of the case. Each case, of course, would depend on its own facts,” the Court added.

The High Court dismissed the appeal, stating that the petitioner had failed to provide any evidence to demonstrate that he remained unemployed during the suspension period. Consequently, there was no basis for the court to direct payment of back wages.

Case Title: Sri Man Mohan Kumar Shahu vs. Union of India & Ors.

Case No.: MAT 954 of 2024

Advocate for the Petitioner: Mr. Achin Majumdar

Advocate for the Respondent: Mr. Anirban Mitra

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