Kulesh Kumar Sahu vs Secretary And General Mananger, … on 14 July, 2026

Chattisgarh High Court

Kulesh Kumar Sahu vs Secretary And General Mananger, … on 14 July, 2026

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CGHC010022372023                                             2026:CGHC:29772
                                                                             NAFR



           HIGH COURT OF CHHATTISGARH AT BILASPUR

                               WPL No. 28 of 2023

1 - Shreedayal Patre S/o Ramnarayan Patre Aged About 35 Years R/o Village-
Daija, Post Dhandhan, Tah. Takhatpur, District Bilaspur Chhattisgarh
                                                                   --- Petitioner


                                      versus
1 - Chhattisgarh State Warehousing Corporation Through Manager/ Director, N-3,
Awanti Vihar, Raipur, District Raipur Chhattisgarh New Address Village Jhanjh,
Sector 24, Atal Nagar, New Raipur Chhattisgarh
2 - Chhattisgarh State Warehousing Corporation Through The Branch Manager,
Branch Balod, District Balod Chhattisgarh
                                                                --- Respondent(s)

WPL No. 65 of 2023

1 – Kulesh Kumar Sahu S/o Narad Ram Sahu Aged About 42 Years R/o Village
Birejhar, Post Anjora, Thana Pulgaon, Tahsil And District – Durg Chhattisgarh.

—Petitioner

Versus
1 – Secretary And General Mananger, Chhattisgarh State Warehousing Corporation
Ring Road, Telibandha, Ring Road Telibandha, Udyog Bhawan, 3rd Floor Raipur,
District Raipur Chhattisgarh. New Address – Village Jhanjh Sector 24, Atal Nagar,
New Raipur Chhattisgarh.

2 – Manager Chhattisgarh State Ware Housing Corporation, Borai, District – Durg
Chhattisgarh.

— Respondent(s)
2

WPL No. 31 of 2023

1 – Ashok Kumar S/o Mangluram Patle Aged About 45 Years R/o Village And Post
Padampur, Tahsil And District Mungeli Chhattisgarh.

—Petitioner

Versus
1 – Chhattisgarh State Warehousing Corporation Through- Manager/director, N-3,
Awanti Vihar, Raipur, District Raipur Chhattisgarh. New Address – Village Jhanjh,
Sector 24, Atal Nagar, New Raipur, Chhattisgarh.
2 – Chhattisgarh State Warehousing Corporation Through The Branch Manager,
Branch Balod, District Balod Chhattisgarh.

— Respondents
For Petitioner(s) : Mr. Sudeep Johari, Advocate
For Respondent(s) : Mr. Sourabh Kale, Advocate holding the brief of Mr.
Trivikram Nayak, Advocate

Hon’ble Shri Justice Rakesh Mohan Pandey

Order on Board

14.07.2026

1. In this batch of petitions, the petitioners have claimed back wages. The

petitioners approached the Assistant Labour Commissioner against

discontinuation of their services. The appropriate Government, after

framing questions for determination, referred the matter to the

concerned Labour Court. Names of the workmen/petitioners, case

numbers and dates of award are depicted as under:-

       Sl.   Name of the petitioner          Order impugned
       No.
       1.    Shreedayal      Patre    (WPL Award dated 25.02.2022 passed by

             No.28 of 2023)                  ld. Labour Court, Durg in 117/ID

                                             Act/2018     Civil     New     No.06/ID

                                             Act/2022/Ref. (Annexure P/1)

2. Ashok Kumar (WPL No.31 of Award dated 26.02.2022 passed by
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2023) ld. Labour Court, Durg in 121/ID

Act/2018 Civil New No.11/ID

Act/2022/Ref. (Annexure P/1)

3. Kulesh Kumar Sahu (WPL Award dated 24.12.2021 passed by

No.65 of 2023) ld. Labour Court, Durg in 16/ID

Act/2017/Ref (Annexure P/1)

2. The facts in brief are that the petitioners were working under the

respondent(s) as daily wage employees. They worked there for a

considerable period and thereafter their services were discontinued.

The petitioners filed statements of claim before the concerned Labour

Court to the effect that they worked under the respondent(s) for more

than 240 days in a calender year. Their services were discontinued

contrary to the provisions of the Industrial Disputes Act. They also

pleaded that since the date of discontinuation they remained jobless.

The respondent(s) filed replies to the statements of claim before the

learned Labour Court and denied the averments made therein.

They pleaded that the petitioners worked as daily wage

unskilled labourers and their engagement was temporary in

nature. They also pleaded that the engagement of the

petitioners was need-based and therefore, they were not

entitled for any relief of back wages.

3. Both parties led evidence in their favour, thereafter, the learned Labour

Court partly allowed the statements of claim and passed awards of

reinstatement in favour of the petitioners, but the claim of back wages

was denied in all cases.

4. Learned counsel appearing for the petitioners would argue that the

petitioners specifically pleaded in the statements of claim that they

remained jobless from the date of discontinuation of their services and,

therefore, the learned Labour Court should have granted back wages
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to them. He has placed reliance on the judgments passed by the

Supreme Court in the matter of Deepali Gundu Surwase v. Kranti

Junior Adhyapak Mahavidyalaya (D.Ed.) and others, reported in
(2013) 10 SCC 324, and the judgment rendered in the matter of M/s.
Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s. Hindustan
Tin Works Pvt. Ltd. And others, reported in (1979) 2 SCC 80.

5. On the other hand, counsel appearing for the respondent(s) would

submit that though in the statements of claim the petitioners claimed

reinstatement as well as back wages, and they also pleaded that they

remained jobless, but they failed to adduce evidence in this regard. He

would submit that the learned Labour Court has considered this aspect

and declined the claim of back wages to the petitioners. He would

contend that the petitioners were appointed as a casual labourers on

need basis, no advertisement was issued and applications from the

Employment Exchange were not invited. He would further submit that

the petitioners worked for short or intermittent periods, therefore, they

are not entitled for back wages. He would further submit that the

petitioners have no right to claim back wages from the employer as

a matter of right. He would argue that the if the learned Labour

Court has directed reinstatement of services of the petitioners, it

would not automatically entitle them to back wages. He would

further argue submit that the burden lies on the workmen to

establish the fact that they were not gainfully employed after

dismissal from service; they failed to plead and prove the same. He

would also argue that in absence of evidence, the learned Labour

Court rightly denied back wages to the petitioners. He has placed

reliance on the judgment passed by the Hon’ble Supreme Court in

the matter of Rajasthan State Road Transport Corporation, Jaipur

v. Phool Chand (dead) Through Legal Representatives, reported
in (2018) 18 SCC 299.

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6. I have heard learned counsel for the parties and perused the record.

7. In the matter of Employees of M/s. Hindustan Tin Works Pvt. Ltd.

(supra), the Supreme Court has held that the learned Labour Court
awarded 75% of back wages to the workman holding that

termination of the services was neither proper nor justified and the

workman was willing to serve. The workman was, therefore, held

entitled to back wages for the said period. It is also held that full

back wages would normally be the rule and the party must

establish the reason for exercising discretion. Such reasons must be

cogent and convincing and must appear on the face of the record.

The relevant paragraphs 9, 11 & 17 are reproduced hereinafter:

“9. It is no more open to debate that in the field of

industrial jurisprudence a declaration can be given that

the termination of service is bad and the workman

continues to be in service. The specter of common law

doctrine that contract of personal service cannot be

specifically enforced or the doctrine of mitigation of

damages does not haunt in this branch of law. The relief of

reinstatement with continuity of service can be granted

where termination of service is found to be invalid. It would

mean that the employer has taken away illegally the right to

the work of the workman contrary to the relevant law or in

breach of contract and simultaneously deprived workman of

his earnings. If thus the employer is found to be in the

wrong as a result of which the workman is directed to be

reinstated, the employer could not shirk his responsibility of

paying the wages which the workman has been deprived of

by the illegal or invalid action of the employer. Speaking

realistically, where termination of service is questioned as
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invalid or illegal and the workman has to go through the

gamut of litigation, his capacity to sustain himself

throughout the protracted litigation is itself such an

awesome factor that he may not survive to see the day when

relief is granted. More so in our system where the law’s

proverbial delay has become stupefying. If after such a

protracted time and energy consuming litigation during

which period the workman just sustains himself, ultimately

he is to be told that though he will be reinstated, he will be

denied the back wages which would be due to him, the

workman would be subjected to a sort of penalty for no fault

of his and it is wholly undeserved. Ordinarily, therefore. a

workman whose service has been illegally terminated would

be entitled to full back wages except to the extent

he was gainfully employed during the enforced idleness.

That is the normal rule. Any other view would be a

premium on the unwarranted litigating activity of the

employer. If the D employer terminates the service

illegally and the termination is motivated as in this case,

viz ., to resist the workman’s demand for revision of

wages. the termination may well amount to unfair labour

practice. In such circumstances reinstatement being the

normal rule, it should be followed(l with full back wages.

Articles 41 and 43 of the Constitution would assist us in

reaching a just conclusion in this respect. By a suitable

legislation, to wit, the U.P. Industrial Disputes Act, 1947,

the State has endeavored to secure work to the workmen.

In breach of the statutory obligation the services were

terminated and the termination is found to be invalid; the

workmen though willing to do the assigned work and
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earn their livelihood, were kept away therefrom. On top

of it the were forced to litigation upto the apex Court and

now they are being told that something less than full

back wages should be awarded to them. If the services

were not terminated the workmen ordinarily would have

continued to work and would have earned their wages.

When it was held that the termination of services was

neither proper nor justified, it would not only show that

the workman were always willing to serve but if they

rendered service they would legitimately be entitled to

the wages for the same. If the workman were always

ready to work but they were kept away therefrom on

account of invalid act of the employer, there is no

justification for not awarding them full back wages which

were very legitimately due to them. A Division Bench of

the Gujarat High Court in Dhari Gram Panchayat v. Safai

Kamldar Mandal(1), and a Division Bench of the

Allahabad (1) 11-971] I Labour Law Journal 508 High

Court in Postal Seals Industrial Co-operative Society Ltd.

v. Labour Court 11, Lucknow & ors.(l), have taken this

view and we are of the opinion that the view taken

therein is correct.

11. In the very nature of things there cannot to a straight

jacket formula for awarding relief of back wages. All

relevant considerations will enter the verdict. More or

less, it would be a motion addressed to the discretion of

the Tribunal. Full back wages would be the normal rule

and the party objecting to it must establish the

circumstances necessitating departure. At that stage the

Tribunal will exercise its discretion keeping in view all the
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relevant circumstances. But the discretion must be

exercised in a judicial and judicious manner. The reason

for exercising discretion must be cogent and convincing

and must appear on of the face of. the record. When it is

said that somethinSee Susannah Sharm v. Workfild

((1891) AC 173, 179). “g is to be done within the

discretion of the authority, that something is to be done

according to the rules of reason and justice? according to

law and not humor. It is not to be arbitrary, vague and

fanciful but legal and regular (See Susannah Sharm v.

Workfild ((1891) AC 173, 179).

17. Now, undoubtedly the appellant appears to have

turned the corner. The industrial unit is looking up. It has

started making profits. The workmen have already been

reinstated and, therefore, they have started earning their

wages. It may, however, be recalled that the appellant has

still not cleared its accumulated loss. Keeping in view all

the facts and circumstances of this case it would be

appropriate to award 75% of the back wages to the

workmen to be paid in two equal instalments. ”

8. In the present case, the petitioners failed to prove the fact that they

were always willing to serve under the respondent, but they were kept

away from their services by the employer. The learned Labour Court

exercised its discretion and held that the workmen failed to prove the

fact that they remained unemployed during the period after removal

from service. The learned Labour Court has assigned sufficient reasons

while denying back wages; therefore, the petitioners would not get any

help from the said judgment.

9. In the matter of Deepali Gundu Surwase (supra), the Hon’ble
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Supreme Court held that in cases of termination of service,

reinstatement with continuity of service and back wages is normally

the rule. While deciding the issue of back wages, the competent

authority and Court may take into consideration the length of service

of the workman, nature of misconduct and other factors. Ordinarily, an

employee/workman whose services were terminated and who seeks

back wages is required to either plead or make a statement to the

effect that he was not gainfully employed. If the employer wants to

avoid back wages, the burden lies on the employer to prove that the

employee/workman was gainfully employed and was getting wages

equal to the wages drawn prior to termination of services. The Court

held that where the punishment is disproportionate to the misconduct,

then it will have discretion not to award full back wages. The relevant

paragraph No.38 is reproduced as under:-

“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
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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 averments 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.
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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 victimizing the

employee or workman, then the concerned Court or

Tribunal 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 be kept in view that in the cases of wrongful /

illegal termination of service, the wrongdoer is the

employer and sufferer is the employee/workman and

there is no justification to give 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 finalization of litigation

has taken long time ignoring that in majority of cases

the parties are not responsible for such delays. Lack 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
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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

Private Limited v. Employees of Hindustan Tin Works

Private Limited (supra).

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

Agrawal (supra) 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 and

cannot be treated as good law. This part of the

judgment is also against the very concept of

reinstatement of an employee/workman.”

10.In the matter of Phool Chand (dead) through legal representatives

(supra), the Supreme Court held that back wages cannot be awarded
by the Court as a matter of right consequent upon setting aside an

order of dismissal/termination. It is necessary for the workman in such

a case to plead and prove by evidence that after his dismissal from

service, he was not gainfully employed anywhere and had no means to

maintain himself or his family. The employer is also entitled to prove

otherwise. The relevant paragraphs no.11 to 13 are reproduced as

under:-

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“11. In our considered opinion, the Courts below
completely failed to see that the back wages could
not be awarded by the Court as of right to the
workman consequent upon setting aside of his
dismissal/termination order. In other words, a
workman has no right to claim back wages from his
employer as of right only because the Court has set
aside his dismissal order in his favour and directed
his reinstatement in service.

12. It is necessary for the workman in such cases to
plead and prove, with the aid of evidence, that after
his dismissal from the service, he was not gainfully
employed anywhere and had no earning to maintain
himself or/and his family. The employer is also
entitled to prove it otherwise against the employee,
namely, that the employee was gainfully employed
during the relevant period and hence not entitled to
claim any back wages. Initial burden is, however, on
the employee.

13. In some cases, the Court may decline to award
the back wages in its entirety whereas in some cases,
it may award partial back wages depending upon the
facts of each case by exercising its judicial discretion
in the light of the facts and evidence. The questions
as to how the back wages are required to be
decided, what are the factors to be taken into
consideration while awarding back wages, on whom
the initial burden lies, etc., were elaborately
discussed in several cases by this Court wherein the
law on these questions has been settled. Indeed, it is
no longer res integra. These cases are, M.P. State
Electricity Board vs. Jarina Bee (Smt.), (2003) 6 SCC
141; G.M. Haryana Roadways vs. Rudhan Singh ,
(2005) 5 SCC 591; U.P. State Brassware Corporation
vs. Uday Narain Pandey, (2006) 1 SCC 479; J.K.
Synthetics Ltd. vs. K.P. Agrawal & Anr. , (2007) 2 SCC
433; Metropolitan Transport Corporation vs. V.
Venkatesan, (2009) 9 SCC 601; Jagbir Singh vs.
Haryana State Agriculture Marketing Board & Anr. ,
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(2009) 15 SCC 327; and Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors. ,
(2013) 10 SCC 324.”

11.In these petitions, though the petitioners pleaded that they were not

gainfully employed after termination of their services, but they failed to

lead evidence to prove this fact. As there was no evidence with regard

to gainful employment, there was no occasion for the employer to lead

contrary evidence. It is also noteworthy that the petitioners did not

state in their evidence that they were always willing to serve but were

kept away by the employer. In this case, the learned Labour Court,

while denying back wages, assigned sufficient reasons and exercised its

discretion. It is also a well-settled principle of law that a workman has

no right to claim back wages as a matter of course.

12.The Court should not grant back wages to the workman merely

consequent upon setting aside the order of dismissal or termination.

13.Having considered the facts of the present case and the law laid down

by the Hon’ble Supreme Court in the above-referred matters, I do not

find any good ground to grant back wages to the petitioners.

Accordingly, these petitions fail and are dismissed.

SD/-

Rakesh Mohan Pandey
JUDGE

Rekha