[Cites 5, Cited by 0]

Gujarat High Court

Mahesh Alias Mahendrabhai Karshanbhai ... vs Deputy Conservator Of Forest on 17 March, 2026

                                                                                                                        NEUTRAL CITATION




                           C/SCA/11458/2025                                            JUDGMENT DATED: 17/03/2026

                                                                                                                        undefined




                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 11458 of 2025


                      FOR APPROVAL AND SIGNATURE:

                      HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE                                           Sd/-
                      ================================================================
                                     Approved for Reporting                           Yes           No
                                                                                                    No
                      ================================================================
                                     MAHESH ALIAS MAHENDRABHAI KARSHANBHAI VALA
                                                       Versus
                                        DEPUTY CONSERVATOR OF FOREST & ANR.
                      ================================================================
                      Appearance:
                      MR KRUNAL D PANDYA(3283) for the Petitioner(s) No. 1
                      MS AGNEYA MANKAD AGP for the Respondent(s) No. 1,2
                      ================================================================

                         CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                                                             Date : 17/03/2026
                                                             ORAL JUDGMENT

1. By the present writ petition, the petitioner is praying for

the following reliefs:-

"9(A) THIS HONOURABLE COURT may be pleased to admit and allow this petition;

(B) THIS HONOURABLE COURT may be pleased to quash and set aside the order passed by the Ld. Labour, Jungadh, dated 01/02/2019, qua "BACKWAGES" and "CONTINUITY OF SERVICE" only and direct the respondent to pay full back wages to the petitioner and grant continuity of service, and to direct the respondent authority to comply the award reinstate the petitioner on the original post.

(C) THIS HONOURABLE COURT may be pleased to pass the order or direct or direction to the respondents to pay the amount of Rs.

3,32,511-00 as per order passed by the Ld. Labour Court, Junagadh, in Recovery Application No. 44/2023 in Reference Case No. 1/2018,

NEUTRAL CITATION

C/SCA/11458/2025 JUDGMENT DATED: 17/03/2026

undefined

forthwith during the pending petition.

(D) Be pleased to pass such other and further relief in favor of the petitioner that is just, fit and expedient in the facts and circumstances of the case;"

2. It is the case of the petitioner that he was engaged as a

Daily Wage Watchman with the respondents. That the service of

the petitioner came to be terminated on 12.08.2014 without

following any due procedure of law. The petitioner thereafter filed

a reference under Section 10(1) of the Industrial Disputes Act,

1947 before the learned Labour Court, Junagadh. After leading

evidence and considering the arguments, learned Labour Court

was pleased to pass the award dated 01.02.2019. The petitioner

is aggrieved by the portion of the award whereby the

reinstatement has been ordered without any back wages as well

as continuity of service.

3. The learned advocate for the petitioner submits that once

the termination of the petitioner has been held to be illegal, back

wages and continuity of service are required to be awarded to the

workman. He submits that it is settled legal position that once

the workman is directed to be reinstated in service upon setting

aside the order of termination, then the continuity of service and

back wages ought to be granted. He submits that the petitioner

NEUTRAL CITATION

C/SCA/11458/2025 JUDGMENT DATED: 17/03/2026

undefined

has also placed on record the fact that he was not in any gainful

employment during the pendency of the reference before the

learned Labour Court. That after earnest attempts to search for

work, the petitioner workman could not get any employment.

The learned advocate for the petitioner submits that the learned

Labour Court has not assigned any reasons for not awarding

back wages and the same is required to be considered in favour

of the petitioner. The learned counsel submits that though the

award was passed on 01.02.2019, the petitioner came to be

reinstated only in the year 2023. He submits that the petitioner

was made to file recovery application for recovery of his wages

post the award and was reinstated with great difficulty.

3.1 In support of his contention, learned advocate for the

petitioner relies upon the judgment of the Hon'ble Apex Court in

Civil Appeal No.6188 of 2019 rendered on 21.08.2019 whereby it

has been held that in case the back wages are denied, then the

Court can also award lump sum compensation in lieu of back

wages. He, therefore, submits that the present Special Civil

Application be allowed and the petitioner be granted back wages

and reinstatement with continuity of service.

4. Per contra, Ms. Agneya Mankad, learned Assistant

NEUTRAL CITATION

C/SCA/11458/2025 JUDGMENT DATED: 17/03/2026

undefined

Government Pleader appearing for the respondents submits that

the petitioner was appointed as Rojamdar on 19.07.2012 and

has been terminated from service on 16.10.2014. She submits

that the petitioner has worked for only about 2 years. She

submits that even the industrial dispute was raised by the

petitioner after a period of 3 years. She submits that the

petitioner was engaged as a seasonal worker during the

plantation period. She submits that the award dated 1.02.2019

is just and proper taking into consideration various

circumstances. She submits that the petitioner has not brought

on record any evidence that despite his best efforts he could not

get employment during the pendency of the reference before the

learned Labour Court. She submits that the learned Labour

Court has rightly denied the back wages and continuity in

service. She submits that the present Special Civil Application

be dismissed.

5. Heard learned advocates for the parties, considered the

submissions and perused the documents on record.

6. A perusal of the impugned award reveals that the

petitioner was appointed as a Rojamdar Chokidar on 19.07.2012

and has worked with the respondents till 16.10.2014 when his

NEUTRAL CITATION

C/SCA/11458/2025 JUDGMENT DATED: 17/03/2026

undefined

services came to be terminated. That thereafter, the petitioner

had given demand notice after a period of 3 years on 18.08.2017

and thereafter, the reference came to be filed. By award dated

01.02.2019, the petitioner has been directed to be reinstated in

service. Further, the petitioner has been actually reinstated in

service in the year 2023.

7. The Hon'ble Apex Court in Civil Appeal No.6188 of 2019

decided on 21.08.2019 has held thus:-

"9. Several judgments of this Court have laid down the principles pertaining to the grant of back wages. In Hindustan Tin Works, a three- judge Bench of this Court adjudicated on the criterion for grant of back- wages where a termination has been held to be illegal. The appellant in that case was a private limited company with an industrial unit. The Labour Court held that the retrenchment of employees by the appellant was not bona fide and awarded full back wages to the employees, which was challenged before the Supreme Court. This Court made the following observations:

"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 workmen continues to be in service. The specter 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

NEUTRAL CITATION

C/SCA/11458/2025 JUDGMENT DATED: 17/03/2026

undefined

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...." (Emphasis supplied)

The Court further clarified that while the payment of full back wages would be the normal rule, there can be a departure from it where necessary circumstances have been established.

"11. In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the

NEUTRAL CITATION

C/SCA/11458/2025 JUDGMENT DATED: 17/03/2026

undefined

relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular."

Taking note of the financial problems of the appellate company, the Court granted compensation to the extent of 75% of back wages. The principle laid down in Hindustan Tin Works has been followed by other decisions of this Court."

7.1 Further, in case of Deepali Gundu Surwase v. Kranti Junior

Adhyapak Mahavidyalaya - (2013) 10 SCC 324, the Hon'ble Apex

Court has laid down the following principles to govern the

payment of back wages:-

"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

NEUTRAL CITATION

C/SCA/11458/2025 JUDGMENT DATED: 17/03/2026

undefined

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 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,

NEUTRAL CITATION

C/SCA/11458/2025 JUDGMENT DATED: 17/03/2026

undefined

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-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 [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53] ."

8. Having regard to these principles, which have been

enunciated by the Hon'ble Apex Court in the aforesaid judgment,

the learned Labour Court ought to have granted continuity of

service to the petitioner workman once it has been held that his

termination was illegal. Further, looking to the period of service

which has been rendered by the petitioner workman instead of

back wages, the learned Labour Court ought to have considered

NEUTRAL CITATION

C/SCA/11458/2025 JUDGMENT DATED: 17/03/2026

undefined

a lump sum compensation for the wrongful act committed by the

respondents by illegally terminating the services of the