Punjab-Haryana High Court
Onkar Singh vs The Presiding Officer, Labour Court And … on 16 March, 2026
CWP-13066
13066-2019 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(239) CWP-13066-2019
Date of Decision : 16.03.2026
Onkar Singh ...Petitioner
Versus
Presiding Officer, Labour Court and
Industrial Tribunal, U.T. Chandigarh and others ...Respondents
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. Amit Kaith, Advocate for the petitioner.
Mr. Kapil Bansal, DAG, Haryana.
****
KULDEEP TIWARI,
TIWARI J. (ORAL)
1. Through the impugned award dated 13.12.2017 (Annexure P
P–1),
as passed by learned Industrial Tribunal concerned (respondent No.1), the
petitioner/workman, was granted the relief of reinstatement with continuity of
service and 30% back wages.
2. The petitioner/workman, challenged the legality of the award
(supra),
), to the extent of not granting 100% back wages. Learned counsel for
the petitioner submits that services of the petitioner/workman was erroneously
terminated, and there is a positive finding in this regard that there is
non-compliance
compliance of Section 25 (F) of the Industrial Disputes Act, 1947 (for
short ‘the ID Act‘).
Act’). He further submits that the petitioner/workman, was not
gainfully employed during his termination period till his reinstatement, and
therefore, he is entitled for 100% back wages
wages.
3. Further, reliance has also been placed by learned counsel for the
petitioner on the judgment rendered by Hon’ble Supreme Court in ‘Deepali
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Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and
others, 2013 (10) SCC 324,
324 and submitted th
that
at the petitioner/workman, is
entitled for 100% back wages.
4. Per contra learned counsel for the State, has strongly opposed the
submissions advanced on behalf of the petitioner/workman. He apprises this
Court that the State, has already complied with the award, as the
petitioner/workman, was reinstated into the service, and he joined on
31.12.2018.. Thereafter, the petitioner/workman, absented himself w.e.f.
04.05.2020,, and he joined back on 29.10.2020 for a short period, and
thereafter, he never joined the services again. Learned counsel for the State
submits that the petitioner/workman was joining the duty, as per his own
whims and fancies.
5. Learned counsel for the State, while joining the issue on merits,
submits that the petitioner/workman was working on the post of Junior
Programmer, w.e.f. 11.09.2001 and continued upto 08.04.2006. He submitted
that the petitioner/workman was appointed on a contractual basis, and his
contract was renewed from time to time, as per requirement of Junior
Programmer, in Chandigarh Depot,
Depot, and he was lastly appointed on contractual
basis, vide order dated 02.03.2006, for the period from 05.12.2005 to
03.03.2006,, on
on a consolidated wages @ Rs.3,000/
Rs.3,000/- per month.
6. While referring to terms and conditions of contractual
appointment, it is submitted that services of the workman can be terminated
without prior notice, or assigning any reason
reason. He also submits that it is the
petitioner/workman, who himself abandoned the job, and never joined the
duty back. Finally, he submits that considering the nature of the job, and the
manner in which, the petitioner remained absented, coupled with the other
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relevant factors, the petitioner/workman,
petitioner/workman, was rightly granted 30% back wages.
He apprises this Court that the petitioner/workman, was interested only in
getting the financial benefits, and never wanted to serve the
respondent/Management.
7. This Court has considered the submissions, as made by learned
counsels for the parties concerned.
8. Before proceeding further, let us have a glimpse upon some of
the guiding legal principles,
principles as laid down by Hon’ble Supreme Court.
9. The Hon’ble Supreme Court in ‘U.P.S.R.T.C. Vs.. Mitthu Singh’,
Singh
2006 (7) SCC 180,
180 has held that there cannot be any thumb rule in every case,
where order of reinstatement is passed that the employee is entitled to full
back wages:-
wages:
“10. In General Manager, Haryana Roadways v. Rudhan
Singh,2005 (3) SCT 559: 2005 (5) SCC 591
591,, this Court
held that there is no rule of thumb that in each and every
case, where a finding is recorded by Court or Tribunal that
the order of termination of service was illegal that an
employee is entitled to full back wages. A host of factors
must be taken
aken into account.
The Court stated:
“There
There is no rule of thumb that in every case where
the Industrial Tribunal gives a findings that the
termination of service was in violation of Section 25-
25
F of the Act, entire back wages should be awarded.
A host of actors like the manner and method of
selection and appointment i.e. whether after proper
advertisement of the vacancy or inviting applications
from the employment exchange, nature of
appointment, namely, whether ad hoc, short term,
daily wage, temporary or permanent in character,
any special qualification required for the job and the3 of 11
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CWP-13066
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decision regarding award of back wages. One of the
important factors, which has to be taken into
consideration, is the length of service which the
workman had rendered with the employer. If the
workman has rendered a considerable period of
service and his services are wrongfully terminated,
he may be awarded full or partial back wages
keeping in view the fact that at his age and the
th
qualification possessed by him he may not be in a
position to get another employment. However, where
the total length of service rendered by a workman is
very small, the award of back wages for the
complete period i.e. from the date of termination till
the
he date of the award, which our experience shows is
often quite large, would be wholly inappropriate.
Another important factor, which requires to be taken
into consideration is the nature of employment. A
regular service of permanent character cannot be
compared
mpared to short or intermittent dailywage
employment though it may be ffor
or 240 days in a
calendar year.”
10. Again, in Allahabad Jal Sansthan v. Daya Shankar Rai, 2005
(2) SCT 699: 2005 (5) SCC 124,
124 after considering the relevant cases on the
point, the Court stated:
“We
We have referred to certain decisions of this Court to
highlight that earlier in the event of an order of dismissal
being set aside, reinstatement with full back wages was the
usual result. But now with the passage of time, it has come
to bee realized that industry is being compelled to pay the
workman for a period during which he apparently
contributed little or nothing at all, for a period that was
spent unproductively, while the workman is being
compelled to go back to a situation which pr
prevailed
evailed many
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CWP-13066
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develop a pragmatic approach to problems dogging
industrial relations. However, no just solution can be
offered but the golden mean may be arrived at.
at.”
11. Recently, in U.P.S.R.T.C. Ltd. v. Sarada Prasad Misra, 2006 (2)
SCT 626 (SC): 2006 (4) SCC 733: JT 2006 (5) SC 114
114, one of us
(C.K. Thakker, J.) had an occasion to consider a similar issue. Referring to
earlier case–law, it was observed:
“From the above cases, iitt is clear that no precise formula
can be adopted nor ‘cast iron rule’ can be laid down as to
when payment of full back wages should be allowed by the
court or Tribunal. It depends upon the facts and
circumstances of each case. The approach of the
Court/Tribunal
ibunal should not be rigid or mechanical but
flexible and realistic. The Court or Tribunal dealing with
cases of industrial disputes may find force in the
contention of the employee as to illegal termination of his
services and may come to the conclusion tthat
hat the action
has been taken otherwise than in accordance with law. In
such cases obviously, the workman would be entitled to
reinstatement but the question regarding payment of back
wages would be independent of the first question as to
entitlement of reinstatment
instatment in service. While considering
and determining the second question the Court or Tribunal
would consider all relevant circumstances referred to
above and keeping in view the principle of justice, equity
and good conscience, should pass an appropri
appropriate
ate order.”
Thus, entitlement of a workman to get reinstatement does not
necessarily result in payment of back wages which would be
independent of reinstatement. While dealing with the prayer of
back wages, factual scenario and the principles of justice,
equality and good conscience have to be kept in view by an
appropriate Court/Tribunal.”
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12. It is imperative to take note of essential facts that the
petitioner/workman, was appointed on the post of Junior Programmer, w.e.f.
11.09.2001 and continued upto 08.04.2006,, and his services were erroneously
terminated by the respondent/Management,
respondent/Management, on account of infraction of Section
25 (F) of the ID Act.
Act In this regard, the Hon’ble Supreme Court, in its
celebrated judgment in M/s. Hindustan Tin Works Pvt. Ltd. Vs. The
Employees of M/s Hindustan Tin Works Pvt. Ltd. and others, AIR 1979
Supreme Court 75,
75 has held that, if the workmen 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
legitimately due to them. The relevant observations are extracted hereinbelow:-
hereinbelow:
“9. It is no more open to debate that in the field of
industrial jurisprudence a declaration can be given that the
termination off service is bad and the workman continues to
be in service. The spectre 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 rreinstatement
einstatement 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
een deprived of by the illegal or invalid action
of the employer. Speaking realistically, where termination of
service is questioned as 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 the6 of 11
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law’s proverbial delay has become stupefying. If after such a
protracted time and energy consuming li
litigation
tigation 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
is and it is wholly undeserved. Ordinarily, therefore,
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 otherr view would be a premium on the
unwarranted litigating activity of the employer. If the
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 terminatio
terminationn may well
amount to unfair labour practice. In such circumstances
reinstatement being the normal rule, it should be followed
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
earn their livelihood, were kept away therefrom. On top of it
they 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 sam
same.
e. If
the workman were always ready to work but they were kept7 of 11
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there is no justification for not awarding them full back
wages which were very legitimately due to them. A Division
Bench of the Gujarat
at High Court in Dhari Gram Panchayat
v. Safai Kamdar Mandal (1971) (1), Lab LJ 508 and a
Division Bench of the Allahabad High Court in Postal Seals
Industrial Co-operative
operative Society Ltd. v. Labour Court,
Court
Lucknow(1971] 1 Lab LJ 327
327,, have taken this view and we
are of the opinion that the view taken therein is correct.”
13. The Hon’ble Supreme Court again examined the issue in question
in Deepali Gundu Surwase (supra). While
hile following the ratio laid down in
Hindustan Tin Works (supra), it was held that iin
n cases of wrongful
termination of service, reinstatement with continuity of service and back
wages is the normal rule. While adjudicating the issue of back wages, the
Court may take into consideration the length of service of the
employee/workman, nature of misconduct, if any, found proved against him,
him
the financial condition of the employer, and similar other factors. Further, the
t
Courts/Adjudicating
/Adjudicating Authorities must
st always ke
keep in view that in the cases of
wrongful/illegal termination of service, the wrongdoer is the employer and
sufferer is the employee/workman,
employee/workman and there is no justification to give
premium to the employer of his wrongdoings by relieving him of th
thee burden
to pay to the employee/workman his dues in the form of full back wages. The
relevant observations, in this regard, are extracted hereinafter:
hereinafter:-
“33. The propositions which can be culled out from the
aforementioned judgments are:
i) In cases of w
wrongful
rongful termination of service,
reinstatement with continuity of service and back wages is the
normal rule.
ii) 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
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CWP-13066
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found proved againstt the employee/workman, the financial
condition of the employer and similar other factors.
iii) 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 stat
statement
ement 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
nd prove that the employee was gainfully employed and
was getting the same or substantially similar emoluments.
iv) The cases in which the Labour Court/Industrial Tribunal
exercises power under Section 11
11-A
A of the Industrial
Disputes Act, 1947 and finds th
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 thee 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 forr award of full back wages.
v) 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
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of fullback 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
Labourr 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.
vi) 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 workm
workman
an 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
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,
refore, 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).”
(supra).
vii) The observation made in J.K. Synthetics Ltd. v. K.P.
Agrawal (supra) that on reinstatement
einstatement 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
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good law. This part of the judgment is also against the very
concept of reinstatement of an employee/workman.
14. Moving ahead with the deliberations on the issue, this Court is of
the considered opinion that all the relevant factors are required to be taken into
consideration before adjudicating the issue of back wages.
15. It is a case where the petitioner/workman, was appointed on a
contractual basis, to the post of Junior Programmer on 11.09.2001,, and he
worked upto 08.04.2006.. The other supervening factors, as narrated by learned
State counsel are also of relevance, to the effect, that the petitioner/workman,
was allowed to join the duty, in view of the award (supra), and was reinstated
into the service
service. He joined on 31.12.201
31.12.2018, and thereafter,
hereafter, the
petitioner/workman, absented himself w.e.f. 04.05.2020
04.05.2020. He again joined back
on 29.10.2020,
29.10.2020 and after a short period of time,, he again voluntarily
abandoned the job,
job, and never joined the duty back. It seems that the
petitioner/workma was interested only in getting the financial benefits, and
petitioner/workman,
never wanted to serve the respondent/Management.
16. Considering the totality of the facts and circumstances of the
instant case, this Court does not find any reason to interfere with the well
reasoned award, as passed by learned Tribunal concerned, and the same is
upheld.
17. Consequently, finding no merit, the instant writ petition is
dismissed.
(KULDEEP TIWARI)
JUDGE
March 16, 2026
202
Manpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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