MAHESH ALIAS MAHENDRABHAI KARSHANBHAI VALA vs DEPUTY CONSERVATOR OF FOREST
- Court
- Gujarat High Court
- Case type
- SPECIAL CIVIL APPLICATION
- Decided on
- 17-03-2026
C/SCA/11458/2025 JUDGMENT DATED: 17/03/2026
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/-
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Approved for Reporting Yes No
No
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MAHESH ALIAS MAHENDRABHAI KARSHANBHAI VALA
Versus
DEPUTY CONSERVATOR OF FOREST & ANR.
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Appearance:
MR KRUNAL D PANDYA(3283) for the Petitioner(s) No. 1
MS AGNEYA MANKAD AGP for the Respondent(s) No. 1,2
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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,
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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
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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
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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
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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
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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
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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
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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,
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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
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a lump sum compensation for the wrongful act committed by the
respondents by illegally terminating the services of the
petitioner.
9. In the facts and circumstances of the present case, this
Court is of the opinion that the petitioner should be paid Rs.1
Lac as full and final settlement to his claim for back wages
between the period of his removal from service till the date of the
award in view of the 3 years delay in raising the demand and
filing the reference proceedings. The said lump sum
compensation shall be paid to the petitioner workman within a
period of 8 weeks from the date of receipt of this order.
10. For the aforesaid observations and reasons, the present
Special Civil Application is partly allowed. The award dated
01.02.2019 is modified to the extent that the petitioner is also
entitled for continuity of service and the lump sum
compensation of Rs.1 Lac in lieu of back wages.
The present Special Civil Application is allowed to
aforesaid extent. No order as to costs.
Sd/-
(ANIRUDDHA P. MAYEE, J.)
KAUSHIK D. CHAUHAN
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