STATE ROAD TRANSPORT CORPORATION, JAIPUR versus SHRI PHOOL CHAND(DEAD) THROUGH LRS. on 20 September 2018

1. A workman has no right to claim back wages from hisemployer as of right only because the Court has set aside hisdismissal order in his favour and directed his reinstatement inservice. [Para 11] [452-D]

2. It is necessary for the workman in such cases to pleadand prove with the aid of evidence that after his dismissal fromthe service, he was not gainfully employed anywhere and had noearning to maintain himself or/and his family. The employer isalso entitled to prove it otherwise against the employee, namely,that the employee was gainfully employed during the relevantperiod and hence not entitled to claim any back wages. Initialburden is, however, on the employee. [Para 12] [452-E-F]

3. In some cases, the Court may decline to award the backwages in its entirety whereas in some cases, it may award partialamount depending upon the facts of each case by exercising itsjudicial discretion in the light of the facts and evidence.[Para 13] [452-F-G]

M.P. State Electricity Board v. Jarina Bee(Smt.)(2003) 6 SCC 141 : [2003] 1 Suppl. SCR 535 ;G.M. Haryana Roadways v. Rudhan Singh (2005) 5SCC 591 : [2005] 1 Suppl. SCR 569 ; U.P. StateBrassware Corporation v. Uday Narain Pandey(2006) 1 SCC 479 : [2005] 5 Suppl. SCR 609 ;J. K. Synthetics Ltd. v. K.P. Agrawal & Anr. (2007) 2SCC 433 : [2007] 2 SCR 60 ; Metropolitan TransportCorporation v. V. Venkatesan, (2009) 9 SCC 601 :[2009] 12 SCR 583 ; Jagbir Singh v. Haryana StateAgriculture Marketing Board & Anr. (2009) 15 SCC327 : [2009] 10 SCR 908 ; Deepali Gundu Surwase v.Kranti Junior Adhyapak Mahavidyalaya(D.Ed.) & Ors.(2013) 10 SCC 324 : [2013] 9 SCR 1 - referred to.

4. In the instant case, neither the Labour Court nor theHigh Court kept in consideration the principles of law. Similarly,no party to the proceedings either pleaded or adduced anyevidence to prove the material facts required for award of theback wages enabling the Court to award the back wages.[Para 15] [453-C-D]

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5. The Labour Court in one line simply directed theappellant (employer) to pay full back wages for a long period tothe deceased workman while directing his reinstatement inservice. Therefore, direction of the Courts below awarding fullback wages to the workman, has caused prejudice to the appellant(employer). [Paras 16 and 17] [453-D-E]

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6. However, having regard to all facts and circumstancesof the case such as period and money spent in litigation by theworkman and on his death by his legal representatives coupledwith the fact that the workman has since expired, it is just andproper and in the interest of justice to award to the respondentsC(legal representatives of Late Phool Chand) 50% of the total backwages. [Para 18] [453-F]

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1756of 2010.

From the Judgment and Order dated 12.02.2008 of the High Courtof Judicature of Rajasthan at Jaipur in D. B. Special Appeal (Writ)No. 912 of 1998.G

Niraj Bobby Paonam(for S. K. Bhattacharya), Adv. for theAppellant.

Anoop Kr. Srivastav, R. N. Pareek, Advs. for the Respondents.

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The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This appeal is directedagainst the final judgment and order dated 12.02.2008 of the High Courtof Judicature for Rajasthan at Jaipur in D.B. Special Appeal (Writ)No.912 OF 1998 whereby the Division Bench of the High Court dismissedthe appeal filed by the appellant herein and upheld the order dated14.07.1998 passed by the Single Judge of the High Court in S.B.CivilWrit Petition No.5534 of 1996.

2. Few facts need to be mentioned infra for the disposal of theappeal, 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 LabourCourt were justified in awarding full back wages to the deceasedworkman (now represented by his legal representatives - the respondentsherein) after setting aside his dismissal order holding it to be bad in lawand, in consequence, directing his reinstatement in service of the appellant.

4. The appellant is a State Road Transport Corporation for theState of Rajasthan. The deceased –Phool Chand was in the employmentof the appellant as a driver.

5. The appellant dismissed Phool Chand from the service afterholding departmental inquiry on the ground of dereliction of duties onvarious occasions while he was in the employment. The charge againstthe deceased-workman was his continuous absence from the work, whichwas proved.

6. Phool Chand felt aggrieved by his dismissal and filed anapplication before the Labour Court. The Labour Court, by award dated26.02.1996 held the charge against Phool Chand as proved but interferedin the quantum of punishment.

7. The Labour Court converted the punishment of removal fromservice to that of “stoppage/forfeit of four annual grade incrementswithout cumulative effect” and directed the reinstatement of the deceasedworkman in service with award of full back wages for the period of 13years (16.11.1983 to 24.02.1996).

8. The appellant (employer), felt aggrieved by the award of theLabour Court, filed a writ petition in the High Court of Rajasthan. The A

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ASingle Judge of the High Court, by order dated 14.07.1998, dismissedthe writ petition filed by the appellant and affirmed the award passed bythe Labour Court.

9. Being aggrieved by the order of the Single Judge, the appellantfiled intra court appeal. By impugned order, the Division Bench of theBHigh Court dismissed the special appeal and upheld the order of theSingle Judge, which gave rise to filing of this appeal by way of specialleave by the appellant-employer in this Court.

10. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal in part andCwhile modifying the impugned order award 50% back wages to thedeceased workman (his legal representatives) in place of full wages.

11. In our considered opinion, the Courts below completely failedto see that the back wages could not be awarded by the Court as of rightto the workman consequent upon setting aside of his dismissal/terminationDorder. In other words, a workman has no right to claim back wages fromhis employer as of right only because the Court has set aside his dismissalorder in his favour and directed his reinstatement in service.

12. It is necessary for the workman in such cases to plead andprove with the aid of evidence that after his dismissal from the service,Ehe was not gainfully employed anywhere and had no earning to maintainhimself or/and his family. The employer is also entitled to prove itotherwise against the employee, namely, that the employee was gainfullyemployed during the relevant period and hence not entitled to claim anyback wages. Initial burden is, however, on the employee.

13. In some cases, the Court may decline to award the back wagesFin its entirety whereas in some cases, it may award partial dependingupon the facts of each case by exercising its judicial discretion in thelight of the facts and evidence. The questions, how the back wages isrequired to be decided, what are the factors to be taken into considerationawarding back wages, on whom the initial burden lies etc. wereGelaborately discussed in several cases by this Court wherein the law onthese 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 H

Narain Pandey, (2006) 1 SCC 479, J.K. Synthetics Ltd. vs. K.P.Agrawal & Anr., (2007) 2 SCC 433, Metropolitan TransportCorporation vs. V. Venkatesan, (2009) 9 SCC 601, Jagbir Singh vs.Haryana State Agriculture Marketing Board & Anr., (2009) 15 SCC327) and Deepali Gundu Surwase vs. Kranti Junior AdhyapakMahavidyalaya(D.Ed.) & Ors., (2013) 10 SCC 324.

14. The Court is, therefore, required to keep in considerationseveral factors, which are set out in the aforementioned cases, and thento record a finding as to whether it is a fit case for award of the backwages and, if so, to what extent.

15. Coming now to the facts of the case at hand, we find thatneither the Labour Court and nor the High Court kept in considerationthe aforesaid principles of law. Similarly, no party to the proceedingseither pleaded or adduced any evidence to prove the material factsrequired for award of the back wages enabling the Court to award theback wages.

16. On the other hand, we find that the Labour Court in one linesimply directed the appellant (employer) to pay full back wages for along period to the deceased workman while directing his reinstatementin service.

17. We cannot, therefore, concur with such direction of the Courtsbelow awarding full back 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 thecase such as period and money spent in litigation by the deceasedworkman and on his death by his legal representatives coupled with thefact that the workman–Phool Chand has since expired, we consider itjust 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 powersunder Article 142 of the Constitution of India for doing substantial justiceto the parties concerned having reiterated the legal principles whichgovern the question of award of back wages.

20. In the light of the foregoing discussion, the appeal succeedsand is allowed in part. Impugned order is modified to the extent indicatedabove.

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454SUPREME COURT REPORTS[2018] 11 S.C.R.

A21. Let the amount be worked out and be paid by the appellant tothe respondents after proper verification within 3 months from the dateof this judgment.

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Ankit Gyan

Appeal partly allowed.

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