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
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
11workman 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:
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“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:
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“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.”
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(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
23and 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.)
