IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.684 of 2010 RAM PRAVESH SINGH S/O GARIBA SINGH R/O 705B, HARI OM APARTMENT, NEW DAK BUNGLOW ROAD, P.S. GANDHI MAIDAN, TOWN AND DISTRICT OF PATNA Versus 1. MANAGING DIRECTOR, BIHAR INDUSTRIAL AREA DEVELOPMENT AUTHORITY, UDYOG BHAWAN, EAST GANDHI MAIDAN, PATNA 2. SECRETARY, BIHAR INDUSTRIAL AREA DEVELOPMENT AUTHORITY, UDYOG BHAWAN, EAST GANDHI MAIDAN, PATNA 3. LEGAL ADVISER/LAW OFFICER, BIHAR INDUSTRIAL AREA DEVELOPMENT AUTHORITY, UDYOG BHAWAN, EAST GANDHI MAIDAN, PATNA ----------- For the appellant- Sri A.N.Banerjee, advocate. For the BIADA – Sri Lalit Kishore, Sr Advocate & Piyush Lall. -------------- 2. 08.04.2011. The appellant has preferred this appeal under Clause 10 of the Letters Patent of High Court of Judicature at Patna against order dated 8.3.2010, passed in C.W.J.C.No. 2309 of 2010, whereby the learned Single judge of this Court upheld the order dated 19.8.2009 of Managing Director (MD), the Bihar Industrial Area Development Authority ( in short the BIADA) rejecting the prayer of the appellant would not be entitled to back wages for the period he remained out of employment on account of order of compulsory retirement. The relevant facts necessary for disposal of this appeal are as follows- 2. The appellant was appointed in the BIADA in January, 1977 on the post of Assistant Development officer. He 2 was made to retire compulsorily vide order dated 19.6.2007. The appellant challenged the order of compulsory retirement in C.W.J.C.No. 11196 of 2007 which was allowed by order dated 5.5.2009. So far as the payment of back wages for the period spent under compulsory retirement was concerned, the learned Single judge granted liberty to the appellant to file a representation before the MD. The appellant filed an application before the MD on 10.5.2009 with a request to make payment of back wages for the period 30.6.2007 to 30.6.2008. The appellant in his representation also stated that he had retired on 30.6.2008 and he was not gainfully employed anywhere in the intervening period, copy of the representation has been annexed as annexure 4 to the writ petition. The legal advisor vide his letter dated 8.7.2009 asked the appellant to place documents in support of his claim for payment of back wages. The appellant filed his reply on 30.7.2009 reiterating the plea made in his representation dated 10.5.2009. The MD rejected the request of the appellant to pay back wages in light of the guidelines laid down by the Hon'ble Apex court in the case of Novartis India Ltd. Vs. State of West Bengal and others. The MD, BIADA also observed that the he did not produce any document to show that he was not gainfully employed elsewhere during the period in question. The MD, BIADA also observed that he took the work of appellant by engaging other persons in his 3 place. The appellant challenged the order dated 19.8.2009 passed by the MD, BIADA in C.W.J.C.No. 2389 of 2010. The reason given by the MD found favour with the learned Single judge and the writ petition was too dismissed. 3. The appellant has challenged order of the learned Single judge refusing to interfere with the order of the MD, BIADA rejecting the prayer for payment of back wages. He submits that he was not gainfully employed during the period in question, rather he was pursuing his remedy before this Court in the writ jurisdiction. He submits that as he was not gainfully employed he could not have produced any documents to prove the same. The order of compulsory retirement was passed without following procedure of departmental proceeding. No presenting officer was appointed, no prosecution evidence, oral or documentary was led with opportunity to cross examine, and even the dates of holding enquiry was not intimated. Even copy of the enquiry report was not given to him. He submits that service of one Santosh Kumar Sinha was also terminated without following the procedure of departmental proceeding. The learned Single judge while setting aside the termination order, directed the BIADA to make payment of back wages. The BIADA filed an appeal bearing LPA No. 1347 of 2009 which was rejected by a Division Bench of this Court vide order dated 13.4.2010. The Division Bench observed 4 that as there was no departmental proceeding worth the name. The guidelines rendered in case of Novartis India Ltd. Vs. State of West Bengal and others, reported in 2009(3) SCC 124 would not be applicable in the facts of the case and grant of back wages would be a natural corollary. 4. On the other hand, learned counsel for the BIADA submits that in this case, other persons were engaged to work in place of petitioner. He submits that a review application has been filed for reviewing the order dated 13.4.2010, passed by the Division Bench in the case of BIADA and others Vs. Santosh Kumar Sinha in L.P.A.No. 1347 of 2009. 5. We have heard learned counsel for the appellant as well as learned counsel for the BIADA. 6. The Hon'ble Apex court in case of Novartis India Ltd. Vs. State of West Bengal and others (Supra) has observed that the payment of back wages would not be automatic consequent to quashing of the order of termination, dismissal or compulsory retirement. The relevant passage of the order of the Hon'ble Apex court is being produced herein for reference. “ 21. There can, however, be no doubt whatsoever that there has been a shift in the approach of this Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premise that the burden to show that the workman was gainfully employed during interregnum period was on the employer. This Court, in a number of decisions opined that grant of back wages is not 5 automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1872. This Court in the matter of grant of back wages has laid down certain guidelines stating that therefore several factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 14 and 16 of the Constitution of India in cases of public employment, etc. 22. It is also trite that for the purpose of grant of back wages, conduct of the workman concerned also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right.” 7. It is true that the appellant in his representation stated that he was not gainfully engaged during the period he was under compulsory retirement. It is also difficult for an employee to prove the negative, that he was not under employment. The appellant had contended that he was pursuing his remedy by way of writ petition. The respondent has not produced any material to show that the appellant was gainfully employed. We find the learned Single judge noticed in his order that the MD, BIADA stated that during the period of compulsory retirement of the appellant, other persons were engaged on payment to discharge the work that used to be performed by him. Taking into consideration that during the intervening period that the appellant had remained out of employment as some other persons were engaged to perform his work, we are not inclined to direct the BIADA to make payment of 6 back wages. 8. For the aforesaid reasons we agree with the order of the learned Single judge dismissing the writ petition. In the result, this appeal is dismissed but without costs. (Sudhir Kumar Katriar,J). Shashi (Samarendra Pratap Singh,J).