Madhya Pradesh High Court
Ramesh Chandra Kshwah vs State Of M.P on 27 June, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 27th OF JUNE, 2025
WRIT PETITION No. 3152 of 2012
RAMESH CHANDRA KSHWAH
Versus
STATE OF M.P AND OTHERS
Appearance:
Shri Siddarth Sharma - Advocate for the petitioner.
Shri M.S. Jadon - Govt. Advocate for the State.
ORDER
The present petition under Article 226/227 of the Constitution of India
has been filed by the petitioner seeking following reliefs:
"माननीय यायालय से ाथना है , क यािचकाकता क
यािचका वीकार कर अने जर पी/1 के अवाड दनांक 30.09.2011
को प रवितत कर यथ गण को हे तु आदे िशत करने क कृ पा कर,
क वे एक माह के अंदर यािचकाकता को सेवा म ले और
यािचकाकता को दनांक 14.02.2002 से सेवा म िलये जाने क
दनांक तक पछला वेतन भी थ गण से दलाया जावे। "
2. Brief facts of the case are that since 1997, the petitioner has been
working as a Driver in the respondent/department and all of a sudden, his
services were terminated on 14.02.2000 by an oral order. Therefore,
he raised an industrial dispute before Dy. Labour Commissioner, Indore,
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where conciliation proceedings ended into failure and the case was referred
to Labour Court No.2, Gwalior for adjudication of the industrial dispute
wherein, vide Award dated 30.09.2011 (Annexure P/1), the application has
been partly allowed and services of the petitioner have been reinstated
without back-wages. Being aggrieved by the aforesaid Award to the extent of
non-grant of backwages, the present petition has been preferred.
3. Learned counsel for the petitioner has submitted before this Court
that the respondent/department did not file any document to prove that the
petitioner, who was appointed as Driver in the respondent/department in the
year 1997, had not worked for more than 240 days in a calendar year and as
the respondent/department was in possession of every document, it should
had proved that the petitioner/employee has not worked for the said statutory
period since it is well established principle of law that if a party, who is in
possession of best evidence, fails to produce the same then, an adverse
inference is to be drawn against it. In support of this argument, reliance was
placed in the matter of Union of India vs. Ex. Maj. Sudarshan Gupta reported
in (2009) 6 SCC 298 to point out that the non-production of the official
records will impact an adverse inference against the employer.
4. It was further submitted that the petitioner remained unemployed
during the period of termination from 2003 till 2011, as he could not get any
job and he was also not having any other source of livelihood, thus, the
impugned order passed by the Labour Court with regard to non-grant of
backwages is against the law and facts. It was thus prayed that the impugned
order herein deserves to be modified to that extent.
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5. Apart from the aforesaid, learned counsel for the petitioner has
brought to the notice of this Court that earlier against the order passed in
Writ Petition No.1720 of 2009 preferred by the petitioner with regard to his
reinstatement, the State had preferred Writ Appeal No.326 of 2010 before
this Court [which was later transferred to Main Seat, Jabalpur] which was
dismissed vide order 01.11.2021. Against which, the Sate preferred SLP(C)
No.19228 of 2014 which was also dismissed by the Apex Court vide order
dated 21.01.2015, thus, the order passed in the aforesaid Writ Petition
attained finality.
6. Per contra, learned counsel for the respondents opposed the prayer
by submitting that the petitioner has not led any evidence that he has not
been gainfully employed when he was out of service and he has failed to
prove his case, therefore, the learned trial Court has rightly refused to grant
any backwages in his favour.
7. Heard learned counsel for the parties and perused the record.
8. It is admitted position that the petitioner's services were terminated
by the respondent department on 14.02.2000 by the oral order and based on
the impugned order passed by the Labour Court (Annexure P/1), the
petitioner has been reinstated in service. It is also admitted position that the
appointment and termination of the petitioner were oral and the petitioner-
workman had continuously worked from 2003 to 2011 and no retrenchment
compensation was paid before terminating him, nor is there any enquiry
conducted. He has continuously worked for 240 days in a calendar year and
there is no evidence led by the respondent/department contradicting the
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same.
9. The Apex Court in the matter of Hindustan Tin Works vs
Employees, reported in (1979) 2 SCC 80 , has held as follows :
"9. ...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. ..."
10. Further, The Apex Court in the matter of Deepali Gundu Surwase
vs Kranti Junior Adhyapak Mahavidyalaya , reported in (2013) 10 SCC 324 ,
has held as under:
"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. Executive Engineer vs Kishore on 25
February, 2025
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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
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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
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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
Executive Engineer vs Kishore on 25 February,
2025 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
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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.
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 [Hindustan Tin Works (P) Ltd. v. Employees,
(1979) 2 SCC 80], [Surendra Kumar Verma v. Central Govt.
Industrial Tribunal-cum-Labour Court, (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."
11. If the aforesaid proposition of law is applied to the facts of the
present case, then it can very well be said that the learned Trial Court has
committed illegality with regard to denial of back wages of
petitioner/workman, as 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 was drawing prior to the termination of service and 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. Therefore, once
the employee shows that he was not employed, the onus lies on the employer
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to specifically plead and prove that the employee was gainfully employed
and was getting the same or substantially similar emoluments, but herein the
respondent/employer could not prove that the petitioner/employee was
gainfully employed during the relevant period.
12. In light of the aforesaid discussion, this Court is of the considered
opinion that the petitioner/employee is entitled for full back wages with 6%
interest from the date of removal till his reinstatement as in the absence
thereof, he had distressed and had suffered punishment for no fault of his
own.
(MILIND RAMESH PHADKE)
JUDGE
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