IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7626 of 2009 Santosh Kumar Sinha, Son of Late Baleshwar Prasad, Resident of Mohalla- Vishwanath Nagar, P.S.-Begusarai, District-Begusarai. -Petitioner. VERSUS 1. Bihar Industrial Area Development Authority through its Managing Director, Udyog Bhawan, East Gandhi Maidan, P.S.-Gandhi Maidan, Patna. 2. The Managing Director, Bihar Industrial Area Development Authority through its Managing Director, Udyog Bhawan, East Gandhi Maidan, P.S.- Gandhi Maidan, Patna. 3. Secretary, Bihar Industrial Area Development Authority through its Managing Director, Udyog Bhawan, East Gandhi Maidan, P.S.-Gandhi Maidan, Patna. 4. Executive Director, Bihar Industrial Area Development Authority, Regional Office, Darbhanga. 5. In-charge Officer, Barauni Industrial Area Development Authority, Barauni. -Respondents. --------------- Counsel for the Petitioner : Mr. Ambar Nath Banerjee Counsel for the BIADA : Mr. Lalit Kishore, Sr. Adv. Mr. Piyush Lal. -------------- 04 26.08.2009 The petitioner is a permanent employee of the Bihar Industrial Area Development Authority (hereinafter referred to as BIADA) constituted under the Bihar Industrial Development Area Authority Act. The said authority has what is known as the Bihar Industrial Area Development Authority (Finance Service and Technical) Regulation, 2007, which dealt with service of other related matter, the petitioner was dismissed on 14.01.2008 invoking Clause 1.5(a) of the said regulations. It is not in dispute that he was appointed on 03.03.1978. In the earlier writ petition in which the petitioner challenged his order of termination being C.W.J.C. No. 4871 of 2008, which was disposed of on 14.08.2008, this Court found that the said regulations were inapplicable to the petitioner. Thus, the action taken against the petitioner was not sustainable and his dismissal order dated 14.01.2008 was quashed. It seems thereafter the petitioner was reinstated and a proceeding was - 2 - initiated again a charge sheet was issued to him on 31.12.2008. Pursuant to earlier order of this Court petitioner was reinstated on 07.09.2008 and as such he was not in service from 14.01.2008 to 07.09.2008. It is pointed out that while framing charge enquiry was also directed specifically in respect of petitioner’s conduct in that period. Pursuant to enquiry conducted the Inquiry Officer submitted his report by which it has been found that none of the charges as against the petitioner is sustainable. It appears that the Disciplinary Authority intends to defer from the Inquiry Officer to the extent of ordering re- enquiry. The petitioner’s grievance is that the respondents may take their time into making enquiries or otherwise but surely his termination having held to be illegal. He is entitled to back wages for the period of about 8 months, as indicated above. On the other hand, learned counsel for the BIADA submits that this prayer ought to have been made in the earlier writ petition itself having not been pressed and not being granted, in view of principles as contained in explanation 5 of Section 11 of CPC. The relief having been prayed not granted would be deemed to have been revised and therefore on principles of constructive res judicata it cannot be granted by this Court. In my view, the argument is only to be noted for the purpose of to be rejected. The termination order having been set aside the consequence is that it never existed. It would be deemed that the petitioner continued in service. The whole proceeding for termination of service of petitioner was held to be without jurisdiction. It is, thus, - 3 - does not lie in the mouth of the State to deny back wages. The respondents in the earlier writ petition had not contested the relief with regard to back wages. Denial of back wages only came when petitioner demanded it after being reinstated that was never put to issue in the earlier proceedings. Here, what is challenged is the order which it is said that the question of back wages will be decided in the proceedings which are now being conducted that is events taking place much after disposal of the earlier writ petition. It is the legality and propriety of that order which is under challenge. Respondents in their counter affidavit do not deny the right of petitioner to get back wages but only make it to subject of freshly initiated disciplinary proceeding after petitioner was reinstated. In my view, the two issues cannot be clubbed together. The proceedings have been freshly reinitiated by fresh charge being submitted after his reinstatement. So far as his rights prior to that is concerned cannot be prejudiced in any manner. Petitioner is, thus, entitled to back wages for the period he remained illegally terminated, as indicated above. By way of caution it is added that it is not only back wages but all consequential benefits would accrue to the petitioner and he would be deemed to be in continuous service for the same period. It is expected that the BIADA would calculate the pay and arrears of back wages, as indicated above, within one month from today. With these observations and directions, the writ petition is allowed. Trivedi/ (Navaniti Prasad Singh, J.)