Pradipkumar Babubhai Chuahan vs General Manager District Industrial ...
2025 Latest Caselaw 5723 Guj

Gujarat High Court

Pradipkumar Babubhai Chuahan vs General Manager District Industrial ... on 16 April, 2025

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                             C/SCA/1135/2025                               JUDGMENT DATED: 16/04/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                        R/SPECIAL CIVIL APPLICATION NO. 1135 of 2025


                        FOR APPROVAL AND SIGNATURE:


                        HONOURABLE MRS. JUSTICE M. K. THAKKER

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                                     Approved for Reporting               Yes           No
                                                                                        NO
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                                          PRADIPKUMAR BABUBHAI CHUAHAN
                                                       Versus
                                     GENERAL MANAGER DISTRICT INDUSTRIAL CENTRE
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                        Appearance:
                        MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
                        MR YUVRAJ BRAHMBHATT, ASST. GOVERNMENT PLEADER for the
                        Respondent(s) No. 1
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                          CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                                      Date : 16/04/2025

                                                     ORAL JUDGMENT

1. Rule, returnable forthwith. Learned AGP Mr.Brahmbhatt waives service of notice of Rule on behalf of the respondent-State.

2. The present petition is filed challenging the award passed by the learned Labour Court, Godhra, in Reference (T) No.191 of 2012 dated 27.10.2023, whereby the petitioner was ordered to be reinstated to the original post; however, back wages and all consequential benefits were

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not granted.

3. It is the case of the petitioner that he was appointed as a sweeper in the year 1986 and has served upto 2012. Upon termination of his service, the petitioner raised an industrial dispute challenging the said termination, which came to be registered as Reference (T) No.191 of 2012. Though the learned Reference Court awarded the Reference in favour of the petitioner, it did not make any observation with regard to the continuity of service and denied the relief of back wages and all consequential benefits.

4. Heard the learned advocate Mr.Dipak Dave for the petitioner and learned AGP Mr.Brahmbhatt for the State.

5. Learned advocate Mr.Dave submits that the learned Reference Court has committed an error in not awarding the benefit without assigning any cogent reasons. Learned advocate Mr.Dave submits that the only reason given by the learned Reference Court is the pendency of the litigation for the period of 11 years. Learned advocate Mr.Dave submits that no fault can be attributed to the present petitioner for the said delay. However, instead of granting the back wages along with the relief of reinstatement and consequential benefits, the learned Reference Court has denied the same as well as not observed with regard to the continuity of service.

6. Per contra, learned AGP Mr. Brahmbhatt submits that and

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the State has not challenged the impugned order, the learned Reference Court has not committed any error in denying the benefit of back wages and consequential benefits, considering that the Reference was decided after a period of 11 years from the date of termination.

7. Having considered the submissions made by the learned advocates for the respective parties and the reasons assigned for not granting the benefit of back wages and consequential benefits, it emerges that the learned Reference Court has held the termination to be illegal. It is also not in dispute that the petitioner had established before the learned Reference Court that he had served with the respondent from 1986 to 2012, and that immediately on termination, he had filed the Reference on 28.09.2012. The only reason assigned for declining the relief of back wages and consequential benefits is the pendency of the litigation for a period of 11 years.

8. This Court is of the opinion that the delay in the disposal of the litigation is attributable to the learned Court, and for such delay, the petitioner cannot be penalized by denying the benefit of back wages. This Court has also considered the decision rendered by the Apex Court in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidhyalay, reported in (2013) 10 SCC 324 wherein following observations are made:

"38.The propositions which can be culled out from the aforementioned judgments are:

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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 averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.

38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full

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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 victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under 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 be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.

38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse 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-?is the employee or workman. He can avail the

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services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited.

38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/ workman."

9. Having considered the decision referred herein above and the averments made in the statement of claim and the affidavit that despite making serious efforts the petitioner could not succeed in getting the job at other place and he is not gainfully employed at any establishment, as well as the fact that the petitioner attained the age of 57 years on the day when the order was passed by the learned Reference Court. If 50% back wages would be awarded along with relief of reinstatement then ends of justice would meet.

10. This Court has also considered the decision rendered by the Apex Court in the case of Gurpreet Singh vs State Of Punjab And Ors., reported in (2002) 9 SCC 492 as the learned Reference Court has neither declined nor allowed the relief of continuity of service, this Court is of the opinion that relief of

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continuity of service is a relief of rule where the reinstatement has been awarded.

11. Resultantly, this petition is partly allowed. The respondent is hereby directed to pay 50% back wages and all consequential reliefs along with continuity of service. Rule is made absolute to the above extent.

(M. K. THAKKER,J) M.M.MIRZA