Telangana High Court

Mr. V. Yadaiah, vs The Honble Industrial Trib. Ii ... on 21 February, 2022

Bench: Satish Chandra Sharma, Abhinand Kumar Shavili

THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI

WRIT APPEAL No.921 OF 2009

JUDGMENT: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)

The present writ appeal is arising out of the order dated

17.04.2007 passed by the learned Single Judge in

W.P.No.26184 of 2000.

The undisputed facts of the case reveal that

appellant/writ petitioner was appointed as a Driver on

05.06.1979 and when he was working as a Driver, while getting

down from the bus, he fell down and sustained certain injuries.

He took treatment in Government Hospital and a certificate was

also issued by the Government Doctor. He was charge-sheeted

for remaining absent from duty from 12.09.1995 to 07.10.1995

i.e., for a period of 26 days only. A departmental enquiry took

place in the matter and the appellant/writ petitioner pleaded

before the employer that he should be given leave in the light of

the Medical Attendance Regulations, 1963 as the absence was

on medical grounds. However, in spite of the prayer made by

the appellant/writ petitioner, finally an order was passed on

21.12.1995 removing him from service. The appellant/writ

petitioner approached the Labour Court by filing a petition i.e.,
2

I.D.No.123 of 1999 (Old I.D.No.174 of 1996) under Section

2-A(2) of the Industrial Disputes Act, 1947 and by an Award

dated 19.07.2000, the Labour Court has dismissed the petition

without interfering with the punishment in exercise of powers

under Section 11-A of the Act. Thereafter, the appellant/writ

petitioner has approached this Court and the learned Single

Judge has passed an order setting aside the Award of the

Labour Court dated 19.07.2000 as well as the removal order

and directing reinstatement of the appellant/writ petitioner with

continuity of service, however without attendant benefits and

without back wages.

Learned counsel for the appellant has vehemently argued

before this Court that in the present case, the employer has

inflicted the capital punishment of removal only on account of

absence for 26 days that too when the employee was unwell. He

suffered injuries, he took a plea also before the employer for

grant of medical leave and therefore, the appellant/writ

petitioner is not only entitled for reinstatement but is also

entitled for back wages with all consequential benefits. Learned

counsel has placed reliance upon a judgment delivered by the

Hon'ble Supreme Court in the case of Hindustan Tin Works
3

Pvt. Ltd. vs. The Employees of Hindustan Tin Works Pvt.

Ltd1. Paragraph 11 of the aforesaid judgment reads as under:-

"11. In the very nature of things there cannot be a
straight 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
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 (See Susannah Sharn v. Wakefield [1891] AC
173)."

In the aforesaid case, the Hon'ble Supreme Court has

held that full back wages would be the normal rule and the

party objecting to it must establish the circumstances

necessitating departure. Meaning thereby, the facts and

circumstances of the case are to be looked into while granting

back wages and in the present case, the removal was only on

account of absence for 26 days even if it was proved.

1
(1979) 2 SCC 80
4

The Hon'ble Supreme Court in the case of Shambhu Nath

Goyal vs. Bank of Baroda2 in paragraph 17 has held as under:-

"17. ... ....The blame for not framing an issue on the
question whether or not the workman was gainfully
employed in the intervening period cannot be laid on the
Tribunal alone. It was equally the duty of the management
to have got that issue framed by the Tribunal and adduce
the necessary evidence unless the object was to rake up
that question at some later stage to the disadvantage of
the workman as in fact it has been done. The management
appears to have come forward with the grievance for the
first time only in the High Court. There is no material on
record to show that the workman was gainfully employed
anywhere. The management has not furnished any
particulars in this regard even before this Court after such
a long lapse of time. The workman could have been asked
to furnish the necessary information at the earliest stage.
The management has not resorted to that course. The
workman was not expected to prove the negative. In these
circumstances, we do not think that it would be in the
interest of justice to prolong any further the agony of the
workman whose power to endure the suffering of being out
of employment for such a long time and to oppose the
management Bank, a nationalised undertaking with all
the money power at its disposal in this prolonged litigation
is very limited by allowing the Bank to have the advantage
belatedly sought in the application dated February 8,
1979 in an industrial dispute which arose so early as in
1965. For the reasons stated above we are of the opinion
that the order of the High Court could not be sustained
under the facts and circumstances of the case. The appeal
is accordingly allowed with costs of the workman
quantified at Rs 5000/-. The High Court's judgment is set

2
(1983) 4 SCC 491
5

aside and the Tribunal's award directing reinstatement of
the workman with full back wages and other benefits from
the date of his suspension is restored. ... ...'
In the aforesaid case also, the management was not able

to point out that the workman was gainfully employed while he

was out of service and in the present case, there is no whisper

before the learned Single Judge as well as before this Court

regarding the factum of gainful employment in respect of the

appellant/writ petitioner.

In the case of A.L.Kalra vs. Project and Equipment

Corporation of India Ltd.3 the Hon'ble Supreme Court in

paragraphs 39,40 and 41 has held as under:-

"39. When removal from service is held to be illegal and
invalid, the next question is whether: the victim of such
action is entitled to backwages. Ordinarily, it is well-
settled that if termination of service is held to be bad, no
other punishment in the guise of denial of back wages can
be imposed and therefore, it must as a necessary corollary
follow that he will be entitled to all the back wages on the
footing that he has continued to be in service
uninterruptedly. But it was pointed out in this case that
the appellant was employed as Factory Manager by M/s.
KDR Woollen Mills, A-90, Wazirpur Industrial Area, Delhi
from where he resigned with effect from August 8, 1983. It
was also submitted that he was drawing a salary of Rs.
2500 per month. Now if the appellant had procured an
alternative employment, he would not be entitled to wages
and salary from the respondent. But it is equally true that

an employee depending on salary for his survival when he

AIR 1984 SC 1361

is exposed to the vagaries of the court litigation cannot hold on to a slender distant hope of judicial process coming to his rescue and not try to survive by accepting an alternative employment, a hope which may turn out to be a mirage. Therefore, the appellant was perfectly justified in procuring an alternative employment in order to keep his body and soul together as also to bear the expenses of litigation to vindicate his honour, integrity and character.

40. The submission of the respondent that the appellant had accepted employment with M/s. KDR Woollen Mills may be accepted in view of the evidence tendered in the case. Therefore, the appellant would not be entitled to salary for the period he was employed with M/s. KDR Woollen Mills.

41. Even for the rest of the period, the conduct of the appellant cannot be said to be entirely in consonance with corporate culture. As a highly placed officer he was bound to strengthen the corporate culture and he should have acted within the spirit of the regulations both for house building advance and conveyance advance, which are devised to help the employees. There has been lapse in totally complying with these regulations by the appellant though it neither constitutes misconduct to attract a penalty nor substantially good enough for initiation of disciplinary inquiry. Accordingly, having regard to all the aspects of the case, the appellant should be paid 50% of the back wages for the period since his removal from service upto his reinstatement excluding the period for which he had procured an alternative employment. The respondent shall also pay the costs of the appellant quantified at Rs.3000/-.'

In the aforesaid case, it has been held that it is a well

settled proposition of law that if termination of service is held to

be bad, no other punishment in the guise of denial of back

wages can be imposed.

The Hon'ble Supreme Court, in the case of Deepali

Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya

(D.Ed.,)4, has again dealt with the issue of back wages.

Paragraph 38 of the aforesaid judgment reads 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.

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

(2013) 10 SCC 324

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 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 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, 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 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-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 Private Limited 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 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."

The Hon'ble Supreme Court has subsequently followed

the decision delivered in the case of Deepali Gundu Surwase

(supra) in the case of Bhuvnesh Kumar Dwivedi vs. Hindalco

Industries Ltd.,5.

Therefore, in the considered opinion of this Court, for

grant of back wages there cannot be a straightjacket formula for

each and every case. In the present case, for unauthorsied

absence of 26 days, the punishment of removal was inflicted

upon the present appellant/writ petitioner. He was not

gainfully employed and therefore, interest of justice would be

subserved by granting 25% of the back wages along with all

consequential benefits including continuity of service, if already