U.P. Road Transport Corp. Upsrtc Thru. ... vs The Prescribed Authority Labour Court ...
2025 Latest Caselaw 12542 ALL

Allahabad High Court

U.P. Road Transport Corp. Upsrtc Thru. ... vs The Prescribed Authority Labour Court ... on 15 November, 2025

Author: Jaspreet Singh

Bench: Jaspreet Singh, Ashish Mishra

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Neutral Citation No. - 2025:AHC-LKO:73335

HIGH COURT OF JUDICATURE AT ALLAHABAD

LUCKNOW

WRIT - C No. - 13121 of 2019

U.P. Road Transport Corp. Upsrtc Thru. M.D. And Anr.

.....Petitioner(s)

Versus

The Prescribed Authority Labour Court Lucknow And Ors.

.....Respondent(s)

Counsel for Petitioner(s)

:

Prabhakar Tiwari, Ravindra Pratap Singh

Counsel for Respondent(s)

:

C.S.C., Ashish Mishra Atal

Reserved : 12.11.2025 Delivered : 15.11.2025

HON'BLE JASPREET SINGH, J. 1.Heard Shri R.P. Singh, learned counsel for the petitioners and Shri Ashish Mishra, learned counsel for the private respondents.

2. Unshorn of necessary facts, one Shri Ravi Shankar Awasthi, the predecessor in interest of the private respondents no.2 to 4 was appointed as a driver in the Uttar Pradesh Road Transport Corporation in the year 1968. An incident occurred on 06.11.1983. It was alleged that while Shri Awasthi was driving the bus of the Corporation, signal was given to the said driver to stop but he ignored the said signal and did not stop the bus as a result there was an accident which led to the damage of the bus.

3. It was also alleged that the conductor as well as the driver i.e. the predecessor in interest of the private respondent, had boarded 11 passengers who were travelling without ticket and it is during the inspection made by the squad who had signaled the bus to stop which was not adhered to, hence, proceedings were initiated against Shri Ravi Shankar Awasthi who was served with a chargesheet on 18.01.1984 which was duly replied. After due inquiry a punishment order dated 28.08.1984 was passed recommending removal of Shri Awasthi.

4. Shri Awasthi thereafter assailed the said order of punishment by filing a departmental appeal which came to be rejected on 17.04.1985. Thereafter Shri Awasthi filed a writ petition before this Court bearing Writ Petition No.1664 of 1986 assailing his order of removal. This Court in its order dated 30.10.1986 granted an interim protection to Shri Awasthi and in furtherance thereof he resumed his duty. Later the High Court vide its order dated 05.02.1987 set aside the order of removal and further gave liberty to the Corporation that in case if they so choose, they can pass fresh order.

5. Availing the liberty as granted by the High Court the Corporation passed a fresh order on 09.03.1989.

6. After issuance of the chargesheet an order was passed on 09.03.1989 removing Shri Awasthi which was made the subject matter of the Writ Petition bearing No.2990 of 1990. On 21.04.2001 reference was made to the labour court which was registered as Adjudication Case No.41 of 2001 wherein the written statement was filed by Shri Awasthi. The labour court by means of award dated 23.08.2018 allowed the reference and found that the removal order was bad. The Corporation was directed to reinstate Shri Awasthi and he was also awarded full back wages. The award was published on 10.10.2018 whereafter the instant writ petition came to be filed in April 2019.

7. Shri R. P. Singh, learned counsel for the petitioners has primarily assailed the award on two grounds:-

(i) It was urged that the labour court erred in recording any finding that the inquiry against the workman was not proper or it was vitiated. In absence of any such finding the labour court could not have set aside the order of removal which was passed after affording full opportunity of hearing to the workman and adhering to the principles of natural justice.

(ii) It is further submitted that the labour court was not justified in granting full back wages to the workman especially when he could not establish that he had been sitting idle and was not working for any gains during the period of his removal.

8. Elaborating his submissions, Shri R. P. Singh learned counsel submits that the workman did not lead any evidence to indicate that he was not gainfully employed during the period he was removed from service. In absence of any evidence the workman cannot, as a matter of right, claim back wages and in the instant case full back wages granted by the labour court was patently erroneous and is also against the decision of the Apex Court in the case of The Management of Regional Chief Engineer P.H.E.D., Ranchi Vs. Their Workmen Represented by District Secretary (2018) 4 UPLBEC2968. It is thus urged that in the given circumstances the award cannot be sustained and deserves to be set aside.

9. Shri Ashish Mishra, learned counsel for the private respondent submits that the workman while filing his written statement clearly stated that he was not working. This fact was not disputed and no evidence was led to indicate that the statement given by the workman was false and in absence of any contrary material the status of the employee as unemployed stood confirmed. It was clearly stated that the workman was not working and since the removal was held to be bad, accordingly the workman was entitled to full back wages which has been granted by the labour court and such finding cannot be said to be bad in the eyes of law. In the aforesaid circumstances, the petition is without merit and deserves to be dismissed. Also considering that the workman had been contesting the litigation during which he not only superannuated but also left for his heavenly abode and it is his legal heirs who are pursing the said litigation including this writ petition.

10. The Court has heard the learned counsel for the parties and also perused the material on record.

11. As far as the first contention of the learned counsel for the petitioner is concerned that the labour court did not record any finding that the inquiry held against the workman was vitiated does not impress this Court. The fact remains that the inquiry was done by the department i.e. Corporation. What material was placed by the Corporation before the labour court to establish that there was full adherence to the principles of natural justice coupled with the appropriate evidence and material which was duly filed and considered while passing order of removal, is not known.

12. It is the Corporation who is the petitioner before this Court and in case if it deemed fit to assail the award on this ground then it was the duty of the petitioner Corporation to have placed the material on record to substantiate that they had placed the material before the labour court which clearly indicated the negligence of the workman including the evidence upon which the findings were returned.

13.Since the petitioner has not brought any material on record and noticing the undisputed fact that the charge against the workman was primarily in respect of the fact that certain damage was caused to the bus of the Corporation by not adhering to the signal given by the mobile squad to stop the bus. However, the finding returned by the labour court is that the charge levelled against the workman that he had caused damage to the bus was not made out in M.R.I. (inspection report) was conducted which did not disclose any damage to the bus. In case if the petitioner found that this reason or the averment in the award is bad and in order to substantiate it, the Corporation could and ought to have placed the requisite material before this Court but that has not been done.

14. As far as the issue that the workman alongwith the conductor of the bus were guilty of boarding 11 passengers without ticket, this also could not be substantiated for the reason that it is not the duty of the driver to see that the passengers have duly paid their fare or not as it is the work of the conductor. Nothing has been brought on record by the Corporation to indicate what measure was taking against the conductor and as to whether the alleged connivance said to have been there between the driver and the conductor was ever proved. In absence of the aforesaid material, the contentions of the learned counsel for the petitioner cannot be countenanced. Hence, the finding recorded by the labour court in the award cannot be said to be bad, hence the same is affirmed.

15. As far as the issue regarding full back wages is concerned, the contention of the learned counsel for the petitioner is that there is no material to indicate that the workman was not gainfully employed elsewhere and in absence thereof the workman was not entitled to full back wages. If the record available before this Court is seen, it would indicate that this fact was clearly stated by the workman in para-22 of his statement filed before the labour court.

16. There was no material brought before this Court to indicate that the Corporation had ever denied this stand. If the aforesaid stand was not denied by the department, there could not be any other evidence led by the workman to prove that he was not working elsewhere. A person can only lead some evidence in respect of a positive state of affairs. Apart from making a statement the workman could not lead any evidence that he was unemployed. The moment the workman made statement that he was unemployed then in order to disprove it, it was open for the Corporation to have led evidence or placed material on record to indicate that the statement of the workman was false and rather that he was employed gainfully. There is no such averment nor any evidence lead before the labour court or brought on record even before this Court. It is also to be noticed that the proceedings before the labour court are of summary in nature and strict rules of evidence are not applicable.

17. In this regard the observations of the Apex Court in Maharashtra SRTC v. Mahadeo Krishna Naik, (2025) 4 SCC 321, are relevant, wherein the Apex court had held as under:- 41. It is now time to consider the important point of award of back wages. There is no dearth of judicial precedents on such point. While not referring to all the precedents, we may notice only a couple of them here. 42.Hindustan Tin Works (P) Ltd. v. Employees [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80] is a decision rendered by a Bench of three Judges of this Court. The following passage from the judgment authored by Hon'ble D.A. Desai, J. (as his Lordship then was) is instructive : (SCC p. 86, para 9) ?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 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 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 work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the 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 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 litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen'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 with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect.? (emphasis supplied) 43. Close on the heels of Hindustan Tin Works [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80] came another seminal decision on entitlement to back wages by another three-Judge Bench in Surendra Kumar Verma v. Labour Commr. [Surendra Kumar Verma v. Labour Commr., (1980) 4 SCC 443 :] Hon'ble O. Chinappa Reddy, J. (as his Lordship then was) in his Lordship's inimitable style remarked : ?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--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.? (emphasis supplied)

44. 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 [Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324] considered a dozen precedents on award of back wages upon reinstatement (referred to in paras 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 : (SCC pp. 344 & 356-58, paras 22 & 38) ?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. 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.

*** 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. 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 Articles 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 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--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 [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 [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80] , [Surendra Kumar Verma v. Labour Commr., (1980) 4 SCC 443] 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.?

(emphasis supplied) 45. 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 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. 46. It is discernible from certain precedents, duly noticed in Deepali Gundu Surwase [Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324] , 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 [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80] , Surendra Kumar Verma [Surendra Kumar Verma v. Labour Commr., (1980) 4 SCC 443] and Deepali Gundu Surwase [Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324] . Though the latter decision was cited before the coordinate Bench when it decided Phool Chand [Rajasthan SRTC v. Phool Chand, (2018) 18 SCC 299] , any thoughtful discussion appears to be absent. 47. There is one other aspect that would fall for consideration of the court. In certain decisions, noticed in Deepali Gundu Surwase [Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324] , 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. 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. 48. 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.

18. In light of the aforesaid decision in Mahadeo Krishna Naik (supra), the decision of the Apex Court in Management of Regional Chief Engineer (supra) is based on different facts and thus does not come to the aid of the petitioner.

19. In this view of the matter, it cannot be said that the workman did not make any statement or he lead any evidence in this regard. There is no contrary material on record either before the labour court or before this Court which could indicate that the workman was gainfully employed. Once it is found that the order of removal was bad as a necessary corollary, the workman is entitled to back wages. 20. This Court does not find that there is any patent illegality which may persuade this Court to interfere. In the aforesaid facts and circumstances, this Court finds that the petition has no merit and is accordingly dismissed. Costs are made easy.

(Jaspreet Singh,J.)

November 15, 2025

ank