Bombay High Court
Divisional Controller Msrtc ... vs Narayan Maruti Kanthale on 18 November, 2025
2025:BHC-AUG:31555
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.10416 OF 2023
Divisional Controller,
M.S.R.T.C., Ahmednagar
R/o. Kotla Road, Sarjepura Ahmednagar,
Tal. & Dist. Ahmednagar ... Petitioner
Versus
Shri. Narayan Maruti Kanthale,
Age : 43 years, Occu : Nil,
R/o. Anand Nagar, Po. Pathardi,
Dist. Ahmednagar ... Respondent
.....
Shri. Anshuman Deshmukh i/by. Shri. B. S. Deshmukh,
Advocate for the Petitioner
Shri. I. K. Wagh, Advocate for the Respondent
.....
CORAM : NEERAJ P. DHOTE, J.
RESERVED ON : 10.11.2025
PRONOUNCED ON : 18.11.2025
ORDER :
-
. Heard finally at the stage of admission with the consent of both
the sides.
2. This is the Writ Petition under Article 227 of the Constitution of
India against the Award dated 11.01.2022 passed by the Presiding
Officer, First Labour Court, Ahmednagar in Reference (I.D.A.)
No.49/2012 directing reinstatement of the sole Respondent in the
services with continuity of service with full back wages.
3. The facts, in brief, giving rise to the present Petition are as
follows:
3.1. The Petitioner is the Maharashtra State Road Transport
Corporation. The Respondent was appointed as the Driver on the
establishment of the Petitioner in the year 1999 at Pathardi Depot, Dist.
Ahmednagar. On account of absenteeism without notice to the higher
Authorities, the Respondent was Charge-sheeted under the relevant
disciplinary and Appeal Rules. The departmental enquiry was conducted
and the Respondent came to be terminated from the services on
16.03.2007. Against the termination, the Respondent filed the Reference
(I.D.A.) No.49/2012 before the learned Labour Court, Ahmednagar with
the prayer for reinstatement with full back-wages. The Petitioner
contested the said Reference by filing a Written-statement and denying
the prayers made in the Reference. Both the sides led their respective
evidence. By Award dated 12.12.2014, the learned Labour Court partly
allowed the Reference reinstating the Respondent in the services without
back wages. Being aggrieved of denial of the back wages, the
Respondent preferred Writ Petition No.13093 of 2017 before this Court.
The said Petition was contested by the present Petitioner being the
Respondent therein. The said Petition was allowed by order dated
13.01.2020 directing the learned Labour Court to decide the issue of
back wages afresh by giving opportunity to both the sides. After
remand, both the sides appeared before the Labour Court and led their
respective evidence. After hearing the learned Advocates for both the
sides, the learned Labour Court answered the reference 'in the
affirmative' and directed payment of full back wages to the Respondent
on reinstatement in the services by the impugned order.
4. It is submitted by the learned Advocate for the Petitioner that,
after accepting the earlier Award by which the Respondent was
reinstated in the services, he filed the above referred Writ Petition before
this Court. Due to the longer absence from the services, the Petitioner -
Corporation suffered financial losses and therefore, the Respondent was
not entitled for the back wages. The impugned Order is unsustainable
and it be set aside. In support of his contentions, he cited the following
Judgments :
(a) Kendriya Vidyalaya Sangathan vs. S. C. Sharma,
2005 DGLS (SC) 36.
(b) North East Karnataka Road Transport Corporation
vs. M. Nagangouda, 2007 DGLS (SC) 22.
(c) Maharashtra State Road Transport Corporation vs.
Mahadeo Krishna Naik, (2025) 4 SCC 321.
5. It is submitted by the learned Advocate for the Respondent that,
the issue of reinstatement has attained finality. The only question was in
respect of back wages. The Respondent had filed the Affidavit before
the learned Labour Court that he was not gainfully employed. There
was specific prayer for back wages in the Reference. The impugned
Award was passed in accordance with the law and no interference is
called for and the Petition be dismissed. In support of his contentions,
he relied on the Judgment in Maharashtra State Road Transport
Corporation (supra).
6. After hearing both the sides and going through the papers on
record, there is no dispute on the following aspects:
(i) The Respondent was in the services of the Petitioner - Corporation
as the Bus Driver.
(ii) The Respondent was terminated from the services w.e.f.
16.03.2007.
(iii) The Respondent approached the learned Labour Court by filing
Reference.
(iv) The learned Labour Court by Award dated 12.12.2014 directed
reinstatement of the Respondent in services without back wages.
(v) The Respondent approached this Court in Writ Petition No.13093
of 2017 which was allowed by the Judgment and Order dated
13.01.2020 and the matter was remanded to the learned
Labour Court to consider and decide the issue of back wages.
(vi) The learned Labour Court by the impugned Award dated
11.01.2022 directed the full back wages to be paid to the
Respondent.
7. The only issue is, as to whether the Award directing full back
wages to the Respondent is sustainable in the eye of law?
8. In Kendriya Vidyalaya Sangathan (supra), it is observed that,
'When the question of determining the entitlement of a
person to back wages is concerned, the employee has to
show that he was not gainfully employed. The initial
burden is on him. After and if he places materials in that
regard, the employer can bring on record materials to
rebut the claim.'
9. In North East Karnataka Road Transport Corporation
(supra), the concerned Labour Court allowed the reinstatement of the
employee into service and held him entitled to receive 50% of the back
wages, despite the Respondent was found engaged in agricultural
operations. In challenge to the said finding, it is observed that,
'In our view, "gainful employment" would also
include self- employment wherefrom income is generated.
Income either from employment in an establishment or
from self- employment merely differentiates the sources
from which income is generated, the end use being the
same. Since the respondent was earning some amount
from his agricultural pursuits to maintain himself, the
Labour Court was not justified in holding that merely
because the respondent was receiving agricultural income,
he could not be treated to be engaged in "gainful
employment".
10. In Maharashtra State Road Transport Corporation (supra),
the principles governing reinstatement and back wages has been
explained by considering the earlier Judgments. It is held that,
'ordering back wages to the dismissed employees is
not an automatic relief. 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 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. The
employee 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.
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' . It is
further observed that, ' 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.'
11. The papers on record show that, in the Statement of Claim
the Respondent with the other averments had categorically averred /
stated that, on his termination from the service, he tried for the job,
however he could not get any permanent job. He tried for the
employment with the Mira Transport, Patwa Transport and other private
tour operators, however he could not get the job. For survival he and
his Wife worked as the labourer. It is further averred that, he had
suffered irreparable loss. The said Statement of his Claim was on the
Affidavit. The Petitioner in their Say and Written-statement just denied
the Statement of Claim of the Respondent. In the impugned Award, the
learned Labour Court observed that, ' there are no specific contentions of
the first party i.e. the Employer, about gainful employment or denying
the back wages.' There is further observation in the impugned Award
that, 'the second party i.e. the Employee, has deposed in his affidavit of
examination in chief Exh. U-12, in paragraph No.3, he tried to get
gainful employment, but he failed to do the same .' There is further
observation in the impugned Award that, ' there is nothing on record to
show that the second party i.e. employee, was in gainful employment
during the period of his unemployment.'
12. By considering the material available before the learned
Labour Court, the impugned Award is passed. The copy of the evidence
Affidavit show that, the observations made by the learned Labour Court
in the impugned Award were based on the averments in the Affidavit. It
is clear that, the Respondent discharged his burden by making necessary
averments in the Statement of Claim and the Affidavit. The Petitioner
did not bring anything on record to show that the Respondent was
gainfully employed after his termination till reinstatement. The
pleadings in the Statement of Claim and the evidence Affidavit show
that, the Respondent disclosed the true and correct factual aspects and
candidly disclosed that for the survival he and his wife worked as
labourer. For survival some work becomes necessary. Undisputedly, the
same cannot be said that the Respondent was gainfully employed. The
impugned Award is in consonance with the law and calls for no
interference. Resultantly, the Petition fails. Hence, the following order
is passed.
ORDER
(i) The Writ Petition stands dismissed.
( NEERAJ P. DHOTE )
JUDGE
GGP
Signed by: Gajanan G. Punde
Designation: PA To Honourable Judge
Date: 18/11/2025 14:40:15
