Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1756 OF 2010

Rajasthan State Road Transport Corporation, Jaipur             …..Appellant(s)

VERSUS

Shri Phool Chand(Dead) Through L.Rs.   …..Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.

1.   This appeal is directed against the final judgment

and order dated 12.02.2008 of the  High  Court of

Judicature  for  Rajasthan at  Jaipur  in D.B. Special

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Appeal (Writ) No.912 OF 1998 whereby the Division

Bench of the High Court dismissed the appeal filed

by the appellant herein and upheld the order dated

14.07.1998 passed by the Single Judge of the High

Court in S.B.Civil Writ Petition No.5534 of 1996.

2. Few  facts  need to  be  mentioned infra for the

disposal of the appeal, which involves a short issue.

3. The short question, which arises for

consideration in this appeal,  is whether the Courts

below, namely, the High Court and the Labour Court

were justified in awarding full back  wages to the

deceased workman (now represented by his legal

representatives ­ the respondents herein) after setting

aside his dismissal order holding it to be bad in law

and, in consequence, directing his reinstatement in

service of the appellant.

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4. The appellant is a State Road Transport

Corporation for the State of Rajasthan. The deceased

–Phool Chand was in the employment of the

appellant as a driver.  

5. The appellant dismissed Phool Chand  from the

service after holding departmental inquiry on the

ground of dereliction of duties on various occasions

while he was in the employment. The charge against

the deceased­workman was his continuous absence

from the work, which was proved.  

6.  Phool Chand felt aggrieved by his dismissal and

filed an application before the Labour  Court. The

Labour Court, by award dated 26.02.1996 held the

charge against Phool Chand as proved but interfered

in the quantum of punishment.  

7. The Labour Court converted the punishment of

removal from service to that  of “stoppage/forfeit  of

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four annual grade increments without cumulative

effect” and directed the reinstatement of the deceased

workman in service with award of full back wages for

the period of 13 years (16.11.1983 to 24.02.1996).  

8. The appellant  (employer), felt  aggrieved by the

award of the Labour Court, filed a writ petition in the

High Court of  Rajasthan.   The Single Judge of  the

High  Court, by  order  dated  14.07.1998,  dismissed

the writ petition filed by the appellant and affirmed

the award passed by the Labour Court.

9. Being aggrieved by the order of the Single

Judge, the appellant filed intra court appeal. By

impugned order, the Division Bench of the High

Court   dismissed the special appeal and upheld the

order of the Single Judge, which gave rise to filing of

this appeal by way of special leave by the appellant­

employer in this Court.

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10. Having heard the learned counsel for the parties

and on  perusal of the record of the case,  we are

inclined to allow the appeal in part and while

modifying the impugned order award 50% back

wages to the deceased workman (his legal

representatives) in place of full wages.

11. In our considered opinion, the Courts below

completely failed to see that the back wages could not

be awarded by the Court as of right to the workman

consequent upon setting aside of his

dismissal/termination order. In other words, a

workman has no right to claim back wages from his

employer as of right only because the Court has set

aside his dismissal order in his favour and directed

his reinstatement in service.

12. It is necessary for the workman in such cases to

plead and prove with the aid of evidence that after his

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dismissal from the service, he was not gainfully

employed anywhere and had no earning to maintain

himself or/and his family. The employer is also

entitled to prove  it  otherwise against the employee,

namely, that the employee  was gainfully employed

during the relevant period and hence not entitled to

claim any back wages.  Initial burden is, however, on

the employee.

13. In some cases, the Court may decline to award

the back wages in its entirety whereas in some cases,

it  may  award  partial depending  upon the facts of

each case by exercising its judicial discretion in the

light of the facts and evidence. The questions, how

the back wages is required to be decided, what are

the factors to be taken into consideration awarding

back  wages, on  whom the initial burden lies etc.

were elaborately  discussed  in several  cases by  this

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Court wherein the law on these questions has been

settled.   Indeed,  it is  no  longer  res  integra.   These

cases are,  M.P. State Electricity Board vs. Jarina

Bee(Smt.), (2003) 6 SCC 141,  G.M. Haryana

Roadways  vs.  Rudhan Singh, (2005)  5  SCC  591,

U.P. State Brassware Corporation vs. Uday Narain

Pandey, (2006) 1 SCC 479, J.K. Synthetics Ltd. vs.

K.P. Agrawal & Anr., (2007) 2 SCC 433,

Metropolitan Transport Corporation vs. V.

Venkatesan, (2009)  9  SCC 601,  Jagbir  Singh  vs.

Haryana State Agriculture Marketing Board &

Anr., (2009) 15 SCC 327) and  Deepali Gundu

Surwase vs. Kranti Junior Adhyapak

Mahavidyalaya(D.Ed.) & Ors., (2013) 10 SCC 324.  

14. The Court is, therefore, required to keep in

consideration several factors, which are set out in the

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aforementioned cases, and then to record a finding as

to whether it is a fit case for award of the back wages

and, if so, to what extent.  

15. Coming now to the facts of the case at hand, we

find that neither the Labour Court and nor the High

Court kept in consideration the aforesaid principles

of law.   Similarly, no party to the proceedings either

pleaded or adduced any evidence to prove the

material facts required for award of the back wages

enabling the Court to award the back wages.  

16. On the other hand,  we find that the Labour

Court in one line simply directed the appellant

(employer) to pay full back wages for a long period to

the deceased workman while directing his

reinstatement in service.  

17. We cannot, therefore, concur with such

direction of the Courts below awarding full back

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wages  to the  workman which, in  our  opinion,  has

certainly caused prejudice to the appellant

(employer).

18. However, having regard to all facts and

circumstances of the case such as period and money

spent in litigation by the deceased workman and on

his  death by his  legal  representatives coupled with

the fact that the  workman–Phool  Chand has  since

expired,  we consider  it just and proper  and  in the

interest of justice to award to the respondents (legal

representatives of Late Phool Chand) 50% of the total

back wages.  

19. This we award to the respondents in exercise of

our powers under Article 142 of the Constitution of

India for doing substantial justice to the parties

concerned having reiterated the legal principles

which govern the question of award of back wages.

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20. In the light of the foregoing discussion, the

appeal succeeds  and  is  allowed  in  part. Impugned

order is modified to the extent indicated above.  

21. Let the amount be worked out and be paid by

the appellant to the respondents after proper

verification  within  3  months from  the  date  of this

judgment.

                                    .……...................................J.                     [ABHAY MANOHAR SAPRE]

                                    .……...................................J.                     [S. ABDUL NAZEER]

New Delhi, September 20, 2018.

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