Full Judgment Text
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
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2018.09.20
16:51:11 IST
Reason:
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
, (2005) 5 SCC 591,
Roadways vs. Rudhan Singh
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 &
, (2009) 15 SCC 327) and
Anr. 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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