The Workman Of Bharat Coking Coal … vs Union Of India & Anr on 22 July, 2026

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    Calcutta High Court (Appellete Side)

    The Workman Of Bharat Coking Coal … vs Union Of India & Anr on 22 July, 2026

                          IN THE HIGH COURT AT CALCUTTA
                           Constitutional Writ Jurisdiction
                                  APPELLATE SIDE
    
    Present:
    
    The Hon'ble Justice Shampa Dutt (Paul)
    
    
    
                                  WPA 1178 of 2024
    
                    The Workman of Bharat Coking Coal Limited
                                      Vs
                             Union of India & Anr.
    
    
    For the Petitioner                 :   Mr. Soumya Majumder, ld. Sr. Adv.
                                           Mr. Ravi Kr. Dubey.
    
    For the Respondent No. 2       :       Mr. Susanta Pal,
                                           Mr. Pradipta Bose,
                                           Ms. Madhumanti Chakraborty,
                                           Mr. Nilankan Banerjee.
    
    For the Union of India         :       Mr. Shiv Chandra Prasad,
                                           Ms. Smita Pal.
    
    
    Judgment reserved on           :       01.07.2026
    
    Judgment delivered on          :        22.07.2026
    
    Shampa Dutt (Paul), J.:
    

    1. The writ application has been preferred challenging an order dated

    25.01.2023, passed by the learned Central Government Industrial

    SPONSORED

    Tribunal, Asansol inter alia, dismissing the Complaint Case No. 03 of

    2002 and directing for payment of 30% back wages only.

    2. The petitioner‟s case in short is that the petitioner was appointed by the

    General Manager, Chanch Victoria Area of the Company on
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    17.08.1990/05.09.1990 and was re-designated in August 1991 as

    “Fitter Apprentice”.

    3. The petitioner was transferred (1st time) to Basantimata Colliery and

    accordingly on 10.09.1991 the petitioner joined as “Fitter Apprentice” at

    Basantimata Colliery.

    4. Thereafter, the petitioner was transferred (2nd time) in the same

    capacity to area Workshop in March, 1993.

    5. Thereafter, the petitioner was once again transferred (3rd time) from

    area workshop to Victoria West Colliery as “Fitter Apprentice”, where he

    joined in June, 1995.

    6. The petitioner was authorized by the Agent of the Company to perform

    the duty of “Lamp Issue Clerk” vide his authorization letter dated

    03.01.1996.

    7. By his letter dated 06.06.1997, the petitioner raised industrial dispute

    against denial of regularization, which ultimately culminated in Order of

    Reference dated 30.03.1999/22.04.1999 being registered as Reference

    no. 44 of 1999.

    8. Petitioner’s service was stopped on 04.06.1999 and was then allowed to

    join on 16.11.1999 i.e., after more than 5 months; and on the very next

    day, i.e., 17.11.1999 again stopped and again allowed to join on

    23.11.99, with a direction to report for duty to Engineer underground.

    9. Petitioner was again transferred from Victoria West Colliery to Dahibari

    Colliery (4th time), which he joined under protest on 17.01.2001.

    10. Surprisingly, on 16.09.2002 the petitioner was once again transferred

    from Dahibari to Basantimata Colliery (5th time).
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    11. On 07.10.2002, your petitioner filed a complaint u/s. 33A of the Act

    which was registered as Complaint Case no. 03 of 2002.

    12. During the pendency of the proceeding before the CGIT, Asansol

    being Reference no. 44 of 1999 the management dismissed the

    petitioner from service by their letter dated 09/16.01.2004,

    pursuant to purported charge sheet dated 07.12.2002 for non-

    joining his place of posting on transfer (5th time), effected by letter

    dated 16.09.2002.

    13. On 19.01.2004, the company filed an application being Application no.

    01 of 2004 seeking approval of dismissal of the petitioner.

    14. On 23.04.2004 the petitioner filed Complaint Case no. 01 of 2004 u/s

    33A of the Act against the dismissal order.

    15. Upon hearing the parties, the learned Tribunal passed a common

    order dated 02.12.2009, inter alia, setting aside the dismissal order

    and directing for reinstatement of the petitioner as also holding

    that there was no valid reason to transfer the workman.

    16. The order dated 02.12.2009 was challenged by the company by

    preferring a writ petition being W.P. 11852 (w) of 2010, which was kept

    pending for several years.

    17. During the pendency of the W.P. 11852 (w) of 2010, the presiding officer

    of the learned CGIT passed award dated 16.02.2017, in respect of the

    Reference Case no. 44 of 1999, inter alia, regularizing the service of

    petitioner as Lamp Issue Clerk in grade -III, w.e.f. his functioning as

    Lamp Issue Clerk i.c., 03.01.1996 and accordingly refixed his pay in

    terms of National Coal Wage Agreement -V to VI.
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    18. The award dated 16.02.2017 passed by the CGIT was challenged by the

    company by filing W.P. 25941 (w) of 2017. Upon hearing all the parties,

    The Hon’ble High Court has been pleased to dismiss the writ petition by

    an order dated 11.06.2018, thereby upholding the award dated

    16.02.2017.

    19. On 24.04.2019, the Hon’ble High Court disposed of the W.P. 11852 (w)

    of 2010, inter alia, remanding the matter back to the learned Tribunal

    for adjudication afresh on the applications being Complaint Case no.3 of

    2002, Application No. 1 of 2004 and Complaint Case no. 1 of 2024.

    20. The presiding officer of the learned Tribunal by an order dated

    25.01.2023, inter alia, held the dismissal to be invalid and set aside

    the same and directed for payment of 30% back wages to the

    petitioner.

    21. The challenge in the instant writ petition lies against the part of the

    order dated 25.01.2023 passed in respect of application filed u/s. 33A of

    the Act, being Complaint Case no. 03 of 2002 by which the transfer of

    the petitioner was held to be justified and also the fact that the

    Tribunal in spite of holding that the dismissal of the petitioner is

    bad granted only 30% back wages.

    22. It is further stated that the petitioner herein has been singled out

    and subjected to transfers in succession, specifically after raising of

    industrial dispute against denial of regularization, which goes to

    show that the action of the company was vitiated by mala fide

    intent and victimization.

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    23. It is further stated that after passing of award dated 16.02.2017 as well

    as the order dated 25.01.2023, it has been proved beyond doubt that

    the management has adopted “unfair labour practice” and kept the

    petitioner out of service, and as such employee cannot be held

    responsible for the same and made to suffer on account of the

    management not allowing him to join his service.

    24. Mr. Majumder learned senior counsel appearing for the petitioner

    submits that the learned Tribunal failed to appreciate that the

    employee was forcefully asked to work in a inferior post by way of

    transfer, during the pendency of reference case no.44 of 1999,

    whereas other employees were retained in the Dahibari Colliery, and as

    such there was no occasion to arrive at the conclusion that order dated

    12.09.2002 directing the employee to work as fitter apprentice instead

    of lamp issue clerk in the garb of transfer, did not amount to any

    change in condition of service connected with the Reference Case no. 44

    of 1999 and in the process the learned Tribunal failed to appreciate that

    the post and work of Lamp Issue Clerk is superior to that of Fitter.

    25. Mr. Majumder relies upon the judgment of the Supreme Court in

    Deepali Gundu Surwase vs. Kranti Junior Adhyapak

    Mahavidyalaya & Ors. (2013) 10 SCC 324 in support of his

    contention and submits that when the action of the management in

    terminating the service of the employee has been held to be bad and is

    set aside, full back wages remain the natural corollary to the same. In

    cases of wrongful termination of service, reinstatement with

    continuity of service and back wages is the normal rule.
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    26. Petitioner further relies upon the judgment of Gowramma C. (Dead) by

    legal representatives vs. Manager (Personnel), HAL & Anr. (2022) 11

    SCC 794, where in the Court held:-

    “The principle of „no work no pay‟ is not an absolute
    rule, it comes with the exception that if the employee is
    not at fault and is kept out of work because of
    employer‟s decision, he/she cannot be denied back
    wages. Such denial would be unfair to the employee.”

    27. It is submitted that in spite of holding that the dismissal order was bad

    and not legal, the tribunal denied the fact of full back wages of the

    petitioner/employee for no fault on his part. Hence, this writ

    application.

    28. Mr. Pal appearing for the respondent no. 2 herein being the

    establishment on filing written notes has argued:-

    “The award dated 25th January, 2023 of the Learned Central

    Government Industrial Tribunal, Asansol in which it has been

    directed to the company that the concerned workman be paid with

    30% of his wages and the said award has been fully implemented

    by the management of the respondent No. 2 and a sum amounting

    to Rs. 10,99,082.74 as 30% of wages has already been deposited

    in the bank A/c of the concerned workman through RTGS.”

    29. It is further submitted that after receiving the awarded amount in

    pursuance of the award dated 25th January, 2023, the concerned

    workman is estopped from claiming further by filing a writ petition.

    Accepting part of an award constitutes a voluntary acceptance of the

    decision which presents a party from later repudiating the unfavourable
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    parts of the same award. Doctrine of estoppel or Doctrine of and

    Reprobate is applicable in the instant case. One cannot accept the

    benefits of an award while simultaneously challenging the parts he

    dislikes. Once a party receives payment in terms of an award, it is

    legally assumed they have accepted the award in its entirety. The

    respondent relies upon the judgment in Tushar Kanti Roy vs. Eighth

    Industrial Tribunal, Kolkata reported in 2013 (1) CHN (CAL) 504,

    where the petitioner accepted the awarded compensation before filing

    the writ petition, which the Court held that the writ petition was not

    maintainable.

    30. It is thus stated by Mr. Pal, that once a party accepts that benefits of an

    award, he cannot subsequently contest its legality. Thus, the writ

    petition is not maintainable.

    31. In reply the petitioner has placed a letter dated 05.02.2024 sent by him

    by registered post to the establishment, wherein it is also stated:-

    “……that a cheque was deposited of Rs. 1099082.79 in
    my S.B.I Account Chirkunda on 02.02.2024. 1 received
    deposited amount of Rs. 1099082.79 in cheque at S.B.I
    Chirkunda without prejudice……”

    32. This answers the point agitated by the

    establishment/company/respondent no. 2 on this issue.

    33. Vide the impugned award passed by the learned tribunal, the three

    cases which had earlier been decided on 02.12.2009, the predecessor in

    office of the present presiding officer held:-
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    “……..the action of the Management of M/s. BCCL was
    considered improper and illegal and that the transfer of the
    workman, altering the condition of service during pendency
    of the Industrial Dispute was held to be a contravention of
    provisions under section 33(1) of the Industrial Dispute Act,
    1947. It was held that the order of dismissal of the
    workman w.e.f. 16.01.2004 was not sustainable and was
    set aside and it was held that the Application bearing No.
    01 of 2004 filed by the Employer Company for post facto
    approval of order of dismissal was not sustainable. Relief
    was provided to the workman by way of an order of
    reinstatement in service and payment of full back
    wages………”

    34. The impugned order dated 02.12.2009 passed by the earlier presiding

    officer, in the aforesaid three (3) cases, was assailed by M/s. Bharat

    Coking Coal Limited through the General Manager, Chanch Victoria

    Area, in Writ petition No. 11852 (W) of 2010 Hon’ble Single Bench of

    High Court at Calcutta disposed of the Writ application on 24.04.2019

    observing as follows:

    “This Court finds that the Tribunal has found finding of
    intentional victimization of the workman by the writ petitioner,
    in transferring him and forcing him to perform works of a
    difficult nature, without any evidence oral or documentary
    being led in this regard by either side.

    This Court, therefore, has no hesitation to hold that a large
    number of findings of the Tribunal against the Industry are
    based on conjecture and surmise. In facts of the case, the
    parties ought to have been allowed to lead evidence in the
    matter and it is only after a trial on evidence that the Tribunal
    should have proceeded to come to any legitimate finding with
    regard to either any act or omission on the part of the Industry
    or the Workman.

    In those circumstances, the impugned order shall stand set
    aside.”

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    35. The three (3) proceedings were remanded to the Tribunal for

    adjudication afresh. The Tribunal was directed to frame issues in all

    three cases and parties were allowed to lead evidence both oral and

    documentary before the Tribunal. It has been observed by the Hon’ble

    High Court that the matter shall thereafter be dealt with suitably by the

    Tribunal in accordance with the provisions of Section 11 of the

    Industrial Dispute Act, 1947 and that the applications to be disposed of

    within a period of three (3) months from the date of communication of

    the order.

    36. The learned tribunal framed separate issues in the 3 (three) cases, as

    follows:-

    Complain No. 03 of 2002 :

    Issue (i): Whether the order of transfer of the workman from the

    Dahibari Colliery of M/s Bharat Coking Coal Limited to Basantimata

    Colliery of M/s Bharat Coking Coal Limited by Order DCPM/XII/03/A-

    2/2002/1675 dated 12.09.2002 during pendency of the Reference Case

    44 of 1999 before CGIT, Asansol is justified and legally tenable and

    justified.

    Application No. 01 of 2004:

    Issue (ii) : Whether the Award of dismissal of the workman bearing Ref.

    No. DB:XII:Agent:Dismissal:04:44 dated 09/16.01.2004 and the

    punishment awarded to him by the Management is justified,

    proportionate and in accordance with the gravity of the alleged

    misconduct? If so, whether the action taken by the Management may be

    approved?

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    Complain No. 01 of 2004 :

    Issue (iii): Whether the order dated 09/19.01.2004 for dismissal of the

    workman passed by the Management of M/s. BCCL is liable to be

    quashed / set aside?

    37. The learned tribunal on taking evidence both oral and documentary on

    consideration of the materials on record held:-

    i. Having considered the rival contentions and traversing the evidence

    adduced by the workman as well as the Award passed in

    Reference No. 44 of 1999 dated 16.02.2017 for regularization to the

    post of Lamp Issue Clerk, Clerical Grade -III, it appears to me that

    the issue of regularisation has been set at rest in Writ

    petition No. 25941 (W) of 2017. In Award dated 16.02.2017

    the Management of Victoria West Colliery of M/s. BCCL was

    directed to regularise Balmukund Sharma, Fitter Apprentice

    as Lamp Issue Clerk Clerical Grade-III w.e.f. 03.01.1996.

    This order has remained un-interfered in Writ petition No.

    25941 (W) of 2017 disposed of by the Hon’ble High Court at

    Calcutta on 11.06.2018.

    ii. From the attending facts and admitted position, I have no hesitation

    to hold that at the time of issuance of the order of transfer on

    12.09.2002, Balmukund Sharma’s right to the post of Lamp Issue

    Clerk was not formally approved by the Management and his claim

    to be treated in the higher post did not accrue in his favour. It is a

    fundamental duty of a workman to obey and carry out the orders of

    higher Authority, who control function of the industry. If the
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    workman unilaterally seeks to take his own decision in the matter

    of his functioning in the industrial establishment, he would only

    create disharmony, amounting to his misconduct.

    iii. In view of the above discussion and findings, I hold that the

    Management of Employer Company has not violated the

    provisions of section 33 (1) of the Industrial Disputes Act,

    1947 by passing the Order of Transfer dated 12.09.2002 in

    respect of Balmukund Sharma during pendency of the

    Industrial Dispute in Reference case no. 44 of 1999.

    Therefore, Complaint case no. 03 of 2002 under section 33 A of the

    Industrial Disputes Act, 1947 is devoid of merit and the same is

    dismissed on contest. Issue framed is thus decided against the

    workman.

    iv. Though the claim of the workman for his regularisation to the post

    of Lamp Issue Clerk in Clerical Grade -III has been decided in his

    favour, his unauthorized absence from duty on his own accord is

    unacceptable and unjustified. The workman was appropriately

    found guilty of misconduct for disobedience of the order of higher

    authority and violation of Standing Order.

    v. It appears to me that the Project Officer who passed the Order of

    Dismissal dated 09/16.01.2004 against the workman is not the

    appointing authority of the charged employee. Therefore, according

    to clause 27.2.6 of the Standing Order applicable to the workman,

    the Project Officer claiming to be the Disciplinary Authority is not the

    competent Authority to dismiss the workman. Though the provision
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    of section 33 (2) (b) of the Industrial Disputes Act, 1947 has been

    satisfied and an application has been made by the Project Officer,

    Dahibari Colliery, seeking approval of Management’s decision of

    dismissal of Balmukund Sharma, same is found not tenable. The

    Letter of Appointment of the workman was issued by the General

    Manager, Chanch Victoria Area of M/s. BCCL (Ext.W-1) but the

    Order of dismissal has been issued by the Project Officer and not

    by the appointing authority. Therefore, the same cannot be

    approved. The issue is decided against the Management.

    vi. Misconduct and unauthorized absence from duty has been duly

    proved against the delinquent workman. Misconduct and

    insubordination of the workman writs large even in his reply to the

    second show cause notice. Instead of expressing his repentance for

    his adamant conduct his response is defiant to his higher authority.

    The workman only appears to be obsessed with the idea that he

    should have been regularised as a Lamp Issue Clerk and his

    transfer to this existing post is done to victimise him. The mitigating

    circumstance of his subsequent regularisation and aggravating

    circumstance of disobedience of order and absence from duty have

    been weighted but the misconduct tilts the balance against

    the workman and makes him liable to some punishment

    lesser than dismissal from service.

    vii. He did not carry out the order of higher Authority and refused to

    join his new place of posting on transfer assuming his rights. The

    charge framed against the workman has been duly proved and an
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    order of dismissal has been passed against him by the Project

    Officer, who is not the Appointing Authority. Hence, the same is

    unacceptable and disapproved.

    viii. In this case the order for regularisation was passed subsequent

    to the order of dismissal. In order to give effect to the order of

    regularisation passed on 16.02.2017 it would be presumed that the

    order of dismissal dated 09/16.01.2004 had no effect.

    ix. In light of my above findings, I hold that the order of dismissal of

    Balmukund Sharma from service passed by the Management of

    M/s. BCCL is set aside. This issue in Complaint No. 01 of 2004 is

    accordingly decided in favour of the workman, against the

    Management of M/s. BCCL. On evaluation of the entire evidence on

    record and the admitted facts, I hold that the workman having been

    found guilty of misconduct for disobedience and unauthorized

    absence from duty cannot reap the entire benefit of employment for

    the period he has not rendered any service to the Employer

    Company. Therefore, I hold that it would be just, proper and

    adequate to pay only 30% (thirty percent) of the wages due to

    Balmukund Sharma which would accrue in his favour due to his

    regularisation to the post of Lamp Issue Clerk, except the period

    treated as dies-non in the earlier Memorandum of Settlement dated

    16.01.2001. The workman herein shall be entitled to his usual

    retiral dues, if any 30% (thirty percent) of wages as stated above

    and the retiral dues shall be paid within two months from the date

    of Notification of the Award.

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    38. Thus it appears that only 30% of back wages was granted as the

    tribunal found the workman to be guilty of mis-conduct for disobedience

    and unauthorized absence from duty.

    39. The tribunal also held:-

    “In the case of Strawboard Manufacturing Co. vs.
    Gobind
    ; 1962 SCR Supl. (3) 618, while dealing with the
    contention that if the employer dismisses or discharges a
    workman and then applies for approval of the action taken
    and the Tribunal refuses to approve the action, the
    workman would be left with no remedy as there is no
    provision for reinstatement in section 33(2), it is held that:

    “If the tribunal does not approve of the action taken by the
    employer, the result would be that the action taken by him
    would fall and thereupon the workman would be deemed
    never to have been dismissed or discharged and would
    remain in the service of the employer.”

    Since a subsequent order of regularisation has been
    passed, it is to be presumed that the regularisation
    will have a cumulative effect and not for a brief
    period till the order of dismissal.”

    40. Vide the impugned award the regularization of the workman has been

    allowed/directed and the dismissal order being held to be bad in law

    has been set aside on the ground that the dismissal order was passed

    by an authority who was not empowered to do so.

    41. The tribunal also held as follows:-

    In view of the above discussion and findings, I hold that

    the Management of Employer Company has not violated

    the provisions of section 33 (1) of the Industrial Disputes

    Act, 1947 by passing the Order of Transfer dated

    12.09.2002 in respect of Balmukund Sharma during

    pendency of the Industrial Dispute in Reference case no.

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    44 of 1999. Therefore, the Complaint case no. 03 of

    2002 under section 33 A of the Industrial Disputes

    Act, 1947 is devoid of merit and the same is

    dismissed on contest. Issue framed is thus decided

    against the workman.

    42. Section 33(1) of the Industrial Dispute Act, 1947 lays down:-

    “33. Conditions of service, etc., to remain
    unchanged under certain circumstances during
    pendency of proceedings.-(1) During the pendency
    of any conciliation proceeding before a conciliation
    officer or a Board or of any proceeding before [an
    arbitrator or] a Labour Court or Tribunal or National
    Tribunal in respect of an industrial dispute, no
    employer shall,-

    (a) in regard to any matter connected with the
    dispute, alter, to the prejudice of the workmen
    concerned in such dispute, the conditions of service
    applicable to them immediately before the
    commencement of such proceeding; or

    (b) for any misconduct connected with the dispute,
    discharge or punish, whether by dismissal or
    otherwise, any workmen concerned in such dispute,
    save with the express permission in writing of the
    authority before which the proceeding is pending.”

    43. In the present case, the petitioners specific case in the reference, was

    to be regularized in the post of „lamp issue clerk‟ where he was allowed

    to perform duty from 03.01.1996 to 29.12.1997 and was issued

    certificates and letters of authorization for performing the work of lamp

    issue clerk. The order of regularization was w.e.f. 03.01.1996.

    44. Admittedly, the reference being 44 of 1999 was pending on the date of

    transfer on 12.09.2002 when he was again posted as a fitter apprentice

    (lower post) and he was also released from his then present post.
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    45. Though order of transfer is part of service condition, in this case, when

    the petitioner was claiming regularization to a higher post (allowed)

    where he was working, he was transferred to a post lower in rank during

    pendency of a reference and as such the condition of service connected

    with the dispute was changed/altered to the prejudice of the workman

    during pendency of the proceeding in such dispute (Section 33(1)(a) of

    the Act).

    46. Thus in view of the ingredients of Section 33(1)(a) of Act being

    present, Section 33(2)(b) of the Act will not apply in this case.

    47. The order of transfer was thus bad, in view of the discussion above,

    more so, when regularization to the higher post has been upheld by the

    tribunal.

    48. Thus the findings of the tribunal that the transfer order during

    pendency of reference being valid, is based on erroneous interpretation

    of the relevant provisions of the Act and is thus set aside. As such the

    tribunals findings that the resultant misconduct on the part of the

    workmen deserved some lessor punishment then dismissal, also being

    erroneous are set aside.

    49. In Dinesh Chandra Sharma Dead Through Lrs. Vs Bhartiya

    Pryatan Vikas Nigam Limited & Anr., in Civil Appeal no. ……….

    of 2025 (@ SLP (Civil) No.8180 of 2020), decided on 15 December,

    2025, the Supreme Court held:-

    “11. We have considered the rival submissions and
    have perused the materials on record. In Deepali
    Gundu
    (supra), the judgment relied by the High Court,
    this Court, in paragraph 22, had observed as follows:

    17

    “22. The very idea of restoring an employee to the
    position which he held before dismissal or removal
    or termination of service implies that the employee
    will be put in the same position in which he would
    have been but for the illegal action taken by the
    employer. The injuries suffered by a person, who is
    dismissed or removed or is otherwise terminated from
    service cannot easily be measured in terms of money.
    With the passing of an order which has the effect of
    severing the employer-employee relationship, the latter‟s
    source of income gets dried up. Not only the employee
    concerned, but his entire family suffers grave
    adversities. They are deprived of the source of
    sustenance. The children are deprived of nutritious food
    and all opportunities of education and advancement in
    life. At times, the family has to borrow from the relatives
    and other acquaintance to avoid starvation. These
    sufferings continue till the competent adjudicatory forum
    decides on the legality of the action taken by the
    employer. The reinstatement of such an employee,
    which is preceded by a finding of the competent
    judicial/ quasi-judicial body or court that the
    action taken by the employer is ultra vires the
    relevant statutory provisions or the principles of
    natural justice, entitles the employee to claim full
    back wages. If the employer wants to deny back wages
    to the employee or contest his entitlement to get
    consequential benefits, then it is for him/ her to
    specifically plead and prove that during the intervening
    period the employee was gainfully employed and was
    getting the same emoluments. The denial of back
    wages to an employee, who has suffered due to an
    illegal act of the employer would amount to
    indirectly punishing the employee concerned and
    rewarding the employer by relieving him of the
    obligation to pay back wages including the
    emoluments.”

    12. Even in paragraph 38.1 of the said judgment,
    this Court had observed “in cases of wrongful
    termination of service, reinstatement with
    continuity of service and back wages is the normal
    rule.” In paragraph 38.3, though this Court observed
    that “ordinarily, an employee or workman whose
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    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 lessor wages”, at the
    same time, it was also observed that “if the employer
    wants to avoid payment of full back wages, then it has
    to plead and also 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”. The Court thereafter
    laid down the rationale for its view by observing: “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”.

    13. No doubt the observations contained in paragraph
    38.3 of the judgment in Deepali Gundu (supra) creates
    an impression that, unless and until there is a clear
    stand by the workman that he was not gainfully
    employed, the burden would not shift on the employer to
    prove that he was gainfully employed, the use of
    expression “ordinarily” in paragraph 38.3 of the
    judgment would make it clear that this is not an
    inviolable rule and, therefore, each case would have to
    be decided on its own fact.”

    50. In Maharashtra State Road Transport Corporation vs Mahadeo

    Krishna Naik, in Civil Appeal No. 13834 of 2024, decided on 14th

    February, 2025, the Supreme Court held:-

    “41. Close on the heels of Hindustan Tin Works
    (P) Ltd. (supra) came another seminal decision on
    entitlement to back wages by another three-Judge
    Bench in Surendra Kumar Verma v. Central
    Govt. Industrial Tribunal-cum-Labour
    Court,
    (1980) 4 SCC 443. Hon‟ble O. Chinappa Reddy, J.

    (as His Lordship then was) in His Lordship‟s
    inimitable style remarked:

    19

    “6. … Semantic luxuries are misplaced in the
    interpretation of „bread and butter‟ statutes.
    Welfare statutes must, of necessity receive a broad
    interpretation. Where legislation is designed to give
    relief against certain kinds of mischief, the court is
    not to make inroads by making etymological
    excursions. „Void ab initio‟, „invalid and inoperative‟
    or call it what you will, the workmen and the
    employer are primarily concerned with the
    consequence of striking down the order of
    termination of the services of the workmen. Plain
    common sense dictates that the removal of an
    order terminating the services of workmen
    must ordinarily lead to the reinstatement of
    the services of the workmen. It is as if the
    order has never been, and so it must
    ordinarily lead to back wages too. But there
    may be exceptional circumstances which make it
    impossible or wholly inequitable vis-à-vis the
    employer and workmen to direct reinstatement with
    full back wages. For instance, the industry might
    have closed down or might be in severe financial
    doldrums; the workmen concerned might have
    secured better or other employment elsewhere and
    so on. In such situations, there is a vestige of
    discretion left in the court to make appropriate
    consequential orders. The court may deny the relief
    of reinstatement where reinstatement is impossible
    because the industry has closed down. The court
    may deny the relief of award of full back wages
    where that would place an impossible burden on
    the employer. In such and other exceptional cases
    the court may mould the relief, but, ordinarily the
    relief to be awarded must be reinstatement
    with full back wages. That relief must be
    awarded where no special impediment in the
    way of awarding the relief is clearly shown.
    True, occasional hardship may be caused to
    an employer but we must remember that, more
    often than not, comparatively far greater
    hardship is certain to be caused to the
    workmen if the relief is denied than to the
    employer if the relief is granted.”

    20

    (emphasis supplied)

    42. There have been decisions of this Court
    rendered thereafter where a shift in approach on
    awarding full back wages is clearly discernible.
    However, a coordinate bench of this Court in
    Deepali Gundu Surwase (supra) considered a
    dozen precedents on award of back wages upon
    reinstatement (referred to in paragraphs 13 and

    14). Speaking through Hon‟ble G. S. Singhvi, J. (as
    His Lordship then was), the legal position was
    neatly summed up in the following words:

    “22. The very idea of restoring an employee to the
    position which he held before dismissal or removal
    or termination of service implies that the employee
    will be put in the same position in which he would
    have been but for the illegal action taken by the
    employer. The injury suffered by a person, who is
    dismissed or removed or is otherwise terminated
    from service cannot easily be measured in terms of
    money. With the passing of an order which has the
    effect of severing the employer-employee
    relationship, the latter‟s source of income gets dried
    up. Not only the employee concerned, but his entire
    family suffers grave adversities. They are deprived
    of the source of sustenance. The children are
    deprived of nutritious food and all opportunities of
    education and advancement in life. At times, the
    family has to borrow from the relatives and other
    acquaintance to avoid starvation. These sufferings
    continue till the competent adjudicatory forum
    decides on the legality of the action taken by the
    employer. The reinstatement of such an employee,
    which is preceded by a finding of the competent
    judicial/quasi-judicial body or court that the action
    taken by the employer is ultra vires the relevant
    statutory provisions or the principles of natural
    justice, entitles the employee to claim full back
    wages. If the employer wants to deny back wages
    to the employee or contest his entitlement to get
    consequential benefits, then it is for him/her to
    specifically plead and prove that during the
    intervening period the employee was gainfully
    employed and was getting the same emoluments.

    21

    The denial of back wages to an employee, who has
    suffered due to an illegal act of the employer would
    amount to indirectly punishing the employee
    concerned and rewarding the employer by relieving
    him of the obligation to pay back wages including
    the emoluments.”

    X x x

    38. The propositions which can be culled out from
    the aforementioned judgments are:

    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 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.

    22

    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.

    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 of infrastructure
    23

    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
    [(1979) 2 SCC 80].

    38.7. The observation made in J.K. Synthetics Ltd.

    v. K.P. Agrawal [(2007) 2 SCC 433] 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
    referred to hereinabove [Hindustan Tin Works (P)
    Ltd.
    (supra) and Surendra Kumar Verma (supra)]
    and cannot be treated as good law. This part of the
    judgment is also against the very concept of
    reinstatement of an employee/workman.”

    (emphasis supplied)

    43. We cannot but endorse our wholehearted
    concurrence with the views expressed in the
    aforesaid decisions. Taking a cue therefrom, it can
    safely be concluded that ordering back wages to be
    paid to a dismissed employee – upon his dismissal
    being set aside by a court of law – is not an
    automatic relief; grant of full or partial back wages
    has to be preceded by a minor fact-finding exercise
    by the industrial adjudicator/court seized of the
    proceedings. Such exercise would require the
    relevant industrial court or the jurisdictional high
    court or even this Court to ascertain whether in the
    interregnum, that is, between the dates of
    termination and proposed reinstatement, the
    employee has been gainfully employed. If the
    24

    employee admits of any gainful employment and
    gives particulars of the employment together with
    details of the emoluments received, or, if the
    employee asserts by pleading that he was not
    gainfully employed but the employer pleads and
    proves otherwise to the satisfaction of the court, the
    quantum of back wages that ought to be awarded
    on reinstatement is really in the realm of discretion
    of the court. Such discretion would generally
    necessitate bearing in mind two circumstances : the
    first is, the employee, because of the order
    terminating his service, could not work for a certain
    period under the employer and secondly, for his
    bare survival, he might not have had any option
    but to take up alternative employment. It is
    discernible from certain precedents, duly noticed in
    Deepali Gundu Surwase (supra), that the courts
    are loath to award back wages for the period when
    no work has been performed by such an employee.
    Such a view is no doubt debatable, having regard
    to the ratio decidendi in Hindustan Tin Works (P)
    Ltd.
    (supra), Surendra Kumar Verma (supra)
    and Deepali Gundu Surwase (supra).
    Though the
    latter decision was cited before the coordinate
    bench when it decided Phool Chand (supra), any
    thoughtful discussion appears to be absent.

    44. There is one other aspect that would fall for
    consideration of the court. In certain decisions,
    noticed in Deepali Gundu Surwase (supra), it has
    been opined that whether or not an employee has
    been gainfully employed is within his special
    knowledge and having regard to Section 106 of the
    Evidence Act, 1872, the burden of proof is on him.
    What is required of an employee in such a case?
    He has to plead in his statement of claim or any
    subsequent pleading before the industrial
    tribunal/labour court that he has not been gainfully
    employed and that the award of reinstatement may
    also grant him back wages. If the employee pleads
    that he was not gainfully employed, he cannot
    possibly prove such negative fact by adducing
    positive evidence. In the absence of any contra-
    material on record, his version has to be accepted.

    25

    Reference in this connection may be made to
    Section 17-B of the Industrial Disputes Act, 1947,
    which confers a right on an employee to seek “full
    wages last drawn” from the employer while the
    challenge of the employer to an award directing
    reinstatement in a higher court remains pending.
    There too, what is required is a statement on
    affidavit regarding non-employment and with such
    statement on record, the ball is in the court of the
    employer to satisfy the court why relief under such
    section ought not to be granted by invoking the
    proviso to the section. We see no reason why a
    similar approach may not be adopted. After the
    employee pleads his non-employment and if the
    employer asserts that the employee was gainfully
    employed between the dates of termination and
    proposed reinstatement, the onus of proof would
    shift to the employer to prove such assertion having
    regard to the cardinal principle that „he who
    asserts must prove‟. Law, though, seems to be well
    settled that if the employer by reason of its illegal
    act deprives any of its employees from discharging
    his work and the termination is ultimately held to
    be bad in law, such employee has a legitimate and
    valid claim to be restored with all that he would
    have received but for being illegally kept away from
    work. This is based on the principle that although
    the employee was willing to perform work, it was
    the employer who did not accept work from him
    and, therefore, if the employer‟s action is held to be
    illegal and bad, such employer cannot escape from
    suffering the consequences. However, it is
    elementary but requires to be restated that while
    grant of full back wages is the normal rule, an
    exceptional case with sufficient proof has to be set
    up by the employer to escape the burden of bearing
    back wages.”

    51. Thus in placing reliance the proposition in Deepali Gundu (Supra),

    Gowramma C. (dead) by legal representatives (Supra), Dinesh

    Chandra Sharma (Supra) and Maharashtra State Road Transport
    26

    Corporation (Supra), the impugned award is modified to the extent

    that the petitioner is entitled to full back wages on being reinstated

    with continuity of service, considering that 30% of back wages was

    granted on being satisfied that the petitioner was not gainfully

    employed.

    52. The reduced back wages was for the reasons which have now been set

    aside.

    53. WPA 1178 of 2024 is thus allowed.

    54. Applications, if any, connected thereto stand disposed of consequently.

    55. Interim order, if any, stands vacated.

    56. Photostat certified copy of this Judgment, if applied for, be given to the

    parties on priority basis upon compliance of all formalities.

    (Shampa Dutt (Paul), J.)



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