Jammu & Kashmir High Court – Srinagar Bench
Managing Director vs Shareefa on 11 July, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
LPA No. 263/2023
Reserved on: 02-07-2025
Pronounced on: 11.07.2025
1. Managing Director,
J&K Road Transport Corporation,
M. A. Road, Srinagar.
2. General Manager,
J&K Road Transport Corporation,
M. A. Road, Srinagar.
3. In-Charge Administration,
J&K Road Transport Corporation,
M. A. Road, Srinagar
...Appellant(S)
Through: - Mr. Altaf Haqani, Sr. Advocate with
Ms. Asif Wani, Advocate.
Vs.
1. Shareefa
W/O Late Mohammad Ayoub Shah,
2. Imtiyaz Ahmad Shah,
S/O Late Mohammad Ayoub Shah,
3. Nawazmad Shah
S/O Late Mohammad Ayoub Shah,
Legal heirs of Mohammad Ayoub Shah
All residents of Utrarsoo, Kothar Anantnag.
...RESPONDENT(S)
Through:- Ms. Asma Rashid, Advocate.
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CORAM:
HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR JUSTICE SANJAY PARIHAR, JUDGE.
JUDGMENT
Sanjeev Kumar J:
1. This intra-Court appeal by the appellants arises from an order and
judgment dated 31.08.2023 passed by the learned Single Judge [„the Writ
Court‟] in SWP No. 1888/2016 titled „Shreefa and ors vs. State of J&K and
Ors‟, whereby the writ petition filed by the Original Writ Petitioner has been
allowed.
FACTUAL MATRIX:
2. The husband of the respondent no.1 and father of respondents No.
2&3, late Mohammad Ayoub Shah assailed an order issued by the appellants
vide No. JKSRTC/EC/IV/658 dated 05.09.2016 before the writ Court
whereby and where under late Mohd. Ayoub Shah, an employee of the
appellants, was denied the wages/ salary for the period between 21.08.1987
(the date of termination of his services) to 22.07.1999 (the date of his
reinstatement in service) on the principle of „no work no wages‟. During the
pendency of the writ petition, Mohammad Ayoub Shah passed away and
respondents herein were substituted in his place as his legal representatives.
3. The writ petition was filed and the back wages for the aforesaid period
were claimed by late Mohammad Ayoub Shah in the backdrop of following
facts projected in the petition.
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That the original petitioner, who was working as Conductor with the
appellant- Corporation, was placed under suspension on the charge that in as
many as 22 passengers were found travelling without tickets in the Bus in
which he was performing his duties as a Conductor. This happened on
Anantnag- Chattergul road. The appellants, vide order No. JKSTRC/IV/259
dated 01.06.1998, terminated the services of the original writ petitioner in the
writ petition. Feeling aggrieved, the original petitioner challenged the order
of the appellant- Corporation in SWP No. 269/1999. The Writ petition was
disposed of by a Bench of this court vide order dated 18.12.1997 with a
direction to the appellants herein to hold a fresh enquiry into the misconduct
of the original petitioner within a period of six weeks from the date of
judgment. It was further provided that in case the inquiry was not initiated
within the stipulated period, the original petitioner would be taken back into
the service. A further direction was issued to the appellants to associate the
original petitioner with such inquiry by providing him a reasonable
opportunity of being heard. The order of termination was, however, neither
set aside nor the original petitioner was put back into the service.
4. Pursuant to the aforesaid directions, the appellant-Corporation got an
inquiry conducted through its Deputy General Manager (P&S), who, upon
inquiry, recommended the reinstatement of the original writ petitioner giving
the delinquent the benefit of doubt. On the basis of the recommendations
made by the inquiry officer, the appellant-Corporation reinstated the original
petitioner back in service vide order dated 22-07-1999. The period of
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absence, i.e. from the date of termination dated 21.08.1987 to the date of
reinstatement i.e. 22.07.1999 was treated as dies non. This order was also
challenged by the original writ petitioner to the extent of treating the period
of his absence from duty due to his termination as dies non in SWP
1317/2004. The writ petition was disposed of by a learned Single Bench of
this Court vide order dated 02.12.2015. The order dated 22.07.1999,
impugned in the writ petition, was set aside to the extent of prospective
reinstatement and without any past service benefits. The order treating the
period w.e.f 21.08.1987 till the date of passing of order of reinstatement as
dies non was also quashed and the appellant-authorities were directed to pass
fresh order regarding the wages of the original writ petitioner for the period
with effect from 21-08-1987 to 22-07-1999 and settle all his claims. The
appellant-Corporation considered the issue of payment of wages to the
original writ petitioner and passed an order bearing No. JKSRTC/EC-IV/658
dated 05-09-2016 whereby the intervening period between 21-08-1987 to 22-
07-1999 was treated as „no work no wages‟ without any break in service. It
is this order of consideration passed by the appellants which was called in
question by the original petitioner in SWP No. 1888/2016. The writ Court
has accepted the contention of the original writ petitioner raised in the writ
petition and has granted the relief prayed for.
Submissions of the learned counsel for the appellants:-
5. The impugned judgment of the writ Court is assailed by the appellants
primarily on the ground that back wages of an employee upon his
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reinstatement is not automatic but depends upon the facts and circumstances
of each case and host of other factors. The writ Court has failed to appreciate
that the reinstatement of the original writ petitioner back in service by the
appellant-Corporation did not confer upon him an absolute right to claim
wages for the period he had remained out of action and had not performed
any services to the Corporation.
6. Mr. Altaf Haqani, learned senior counsel appearing for the appellants,
would further argue that the onus to prove that during the period of his ouster
from service the employee was not gainfully employed, is on the employee
and it is only after the initial burden is discharged by the employee, the
employer may be called upon to conduct an inquiry in this regard. He would
argue that the original petitioner did not make even a whisper in the writ
petition in this regard. He did not claim that during the period of his ouster
i.e. from 21-08-1987 to 22-07-1999, he was totally idle and had nothing to
earn for his livelihood. Mr. Haqani would place strong reliance upon the
latest judgment of Hon‟ble the Supreme Court in “Ramesh Chand Vs
Management of Delhi Transport Corporation 2023 LiveLaw (SC) 503″ and
submit that in the instant case the original writ petitioner having failed to
prove that he was not gainfully employed during period of his ouster, is not
entitled to full back wages merely on the ground that he was later reinstated
in service.
Submissions of the learned counsel for the respondents:-
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7. Per contra Ms. Asma Rashid, learned counsel appearing for the
respondents, would argue that since the original writ petitioner was
exonerated in the inquiry and was reinstated in service, as such, as a matter of
course, he was entitled to the payment of back wages. She would argue that
the original petitioner was prevented from performing his duties because of
the illegal and unjustified order of termination passed against him, and,
therefore, cannot be punished indirectly by denying him the wages for the
period he was forcibly kept out of services by the appellants. She would
place reliance upon the judgment of Hon‟ble Supreme Court in case of ”
Chief Regional Manager, United India Insurance Company Limited Vs.
Siraj Uddin Khan, (2019) 7 SCC 564″
Analysis of the Arguments and the view of this Court:-
8. Having heard learned counsel for the parties and perused material on
record, the only question that arises for determination in this appeal can be
stated as under:-
“Whether an employee, whose termination from services
either by dismissal, discharge or even retrenchment, is
either held invalid by a competent court of law or forum
or withdrawn by the employer itself, is reinstated with
continuity of service, is entitled to back wages i.e; the
wages for period with effect from his termination till his
reinstatement in service.”
9. The question, which we have formulated hereinabove, has already
been dealt with by Hon‟ble the Supreme Court in umpteen judgments. As a
matter of fact there are two lines of views emerging from the reading of the
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judgments on the point. It is though well settled that an employee, on
reinstatement in service after quashing or withdrawal of termination order, is
not entitled to back wages automatically, yet the circumstances under which
the full back wages of such an employee can be denied are not very well
identified or defined. The denial of full wages on the ground that the
employee, during the period of his ouster from service was gainfully
employed, is also well settled. However, there is some confusion with regard
to the onus of proof of such gainful employment of the employee during the
period of his ouster from his service. One line of judgments would suggest
that the initial burden to prove that he was not gainfully employed rests on
the employee and it is only on discharge of this burden, the onus shifts to the
employer to prove that his employee during the period of his ouster on
termination was gainfully employed. There is other line of judgments from
Hon‟ble the Supreme Court which would suggest that the onus to prove that
the employee was gainfully employed is on the employer and the employee
who was denied of performing his duties due to his termination shall be
presumed to be idle and without any source of income. With a view to
resolving this ticklish issue presented before us, we have ventured to survey
the case Law on the subject.
10. We began with the judgment of a three-Judge Bench of Hon‟ble the
Supreme Court in Hindustan Tin Works Pvt. Ltd. Vs. The Employees AIR
(1979) SC 75. In the aforesaid case the wages of 56 employees, who were
terminated by way of retrenchment due to non-availability of raw material
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necessary for utilization of full installed capacity by the employer, were
denied. The dispute raised by the employees landed before the Labour Court,
which passed an award of reinstatement with full back wages in favour of the
retrenchment employees. The employer challenged the award by way of
Special Leave Petition filed directly before the Hon‟ble Supreme Court. The
SLP was rejected with regard to the relief of reinstatement but was granted in
respect of question of grant of full back wages to the employees. The
question was considered by a Three-Judge Bench headed by the then Justice
V. R. Krishna Iyer. What was held by Hon‟ble the Supreme Court can be
found from reading of paragraph nos. 7,8,9 10 and 11 of the judgment which
reads thus:-
“7. The question in controversy which fairly often is raised in
this Court is whether even where reinstatement is found to be an
appropriate relief, what should be the guiding considerations for
awarding full or partial back wages. This question is neither new
nor raised for the first time. It crops up every time when the
workman questions the validity and legality of termination of his
service howsoever brought about, to wit, by dismissal, removal,
discharge or retrenchment, and the relief of reinstatement is
granted. As a necessary corollary the question immediately is raised
as to whether the workman should be awarded full back wages or
some sacrifice is expected of him.
8. Let us steer clear of one controversy whether where
termination of service is found to be invalid, reinstatement as a
matter of course should be awarded or compensation would be an
adequate relief. That question does not arise in this appeal. Here the
relief of reinstatement has been granted and the award has been
implemented and the retrenched workman have been reinstated in
service. The only limited question is whether the Labour Court in
the facts and circumstances of this case was justified in awarding
full back wages.
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 workman continues to be in service. The
spectre 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 theArif Hameed
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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
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 reaslistically, 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 workman’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. Articles 41 and 43 of
the Constitution would assist us in reaching a just conclusion in this
respect. By a suitable legislation, to wit, the U. P. Industrial
Disputes Act, 1947, the State has endeavoured to secure work to the
workman. In breach of the statutory obligation the services were
terminated and the termination is found to the invalid; the workman
though willing to do the assigned work and earn their livelihood,
were kept away, therefrom. On top of it they were forced to
litigation up to the apex Court and now they are being told that
something less than full back wages should be awarded to them. If
the services were not terminated the workman ordinarily would
have continued to work and would have earned their wages. When
it was held that the termination of services was neither proper nor
justified, it would not only show that the workman were always
willing to serve but if they rendered service they would legitimately
be entitled to the wages for the same. If the workman were always
ready to work but they were kept away therefrom on account of
invalid act of the employer, there is no justification for not
awarding them full back wages which were very legitimately due to
them. A Division Bench of the Gujarat High Court in Dhari Gram
Panchayat v. Safai Kamdar Mandal, (1971) 1 Lab LJ 508 and a
Division Bench of the Allahabad High Court in Postal Seals
Industrial Co-operative Society Ltd. v. Labour Court, Lucknow,
(1971) 1 Lab LJ 327 have taken this view and we are of the opinion
that the view taken therein is correct.
10. The view taken by us gets support from the decision of this
Court in Workman of Calcutta Dock Labour Board v. EmployersArif Hameed
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in relation to Calcutta Dock Labour Board, (1974) 3 SCC 216. In
this case seven workman had been detained under the Defence of
India Rules and one of the disputes was that when they were
released and reported for duty, they were not taken in service and
the demand was for their reinstatement. The Tribunal directed
reinstatement of five out of seven workman and this part of the
Award was challenged before this Court. This court held that the
workman concerned did not have any opportunity of explaining
why their service should not be terminated and, therefore,
reinstatement was held to be the appropriate, relief, and set aside
the order of the Tribunal. It was observed that there was no
justification for not awarding full back wages from the day they
offered to resume work till their reinstatement. Almost an identical
view was taken in Management of Panitole Tea Estate v. The
Workman, (1971) 3 SCR 774.
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 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
Sharp v. Wakefield, 1891 AC 173 at p. 179).
11. From careful reading of the three-Judge Bench judgment of Hon‟ble
the Supreme Court, in particular the reproduced portion thereof, it can be
deducible as a principle that where the termination of service is found to be
invalid, the reinstatement is a necessary consequence or in the appropriate
cases adequate compensation too would be possible. Where the relief of
reinstatement in service is granted, the payment of full back wages would be
a normal rule and the party objecting to it must establish the circumstances
necessitating departure. There could not be a cast iron or straight jacket
formula for awarding relief of back wages. All relevant considerations will
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enter the decision making. In a nutshell, the view of the three-Judge Bench
in case of Hindustan Tin Works (Supra) is that grant of back wages on
reinstatement of an employee is in the discretion of the Court or the Tribunal
adjudicating the validity of termination. The discretion to be exercised must
be both judicial and judicious informed by cogent and convincing reasons.
The Hon‟ble Supreme Court has clearly held that ordinarily the workman
whose services have been illegally terminated would be entitled to full back
wages on reinstatement except to the extent he was gainfully employed
during his forced idleness. It is thus clarified that if a workman was always
ready to work but was kept away therefrom on account of some invalid and
unjustified actions of the employer, there is no justification for not awarding
the full back wages which were very legitimately due to him. However the
issue as to how the factum of gainful employment of the employee during the
period of his forced idleness has to be proved and who would be the right
person to be called upon to discharge this onus was not considered in the
aforesaid judgment.
12. The issued confronted by the Hon‟ble Supreme Court in the M/S
Hindustan Tin Works (supra) again came up for consideration before
another three-Judge Bench of Hon‟ble the Supreme Court in Surendra
Kumar Verma vs. Central Industrial Tribunal-cum-Labour Court,
(1980) 4 SCC 443. Para 6 of the judgment is relevant and is set out below:-
“6………………….Plain common sense dictates that the removal
of an order terminating the services of workman must ordinarily
lead to the reinstatement of the services of the workman. It is as if
the order has never been and so it must ordinarily lead to backArif Hameed
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wages too. But there may be exceptional circumstances which make
it impossible or wholly inequitable vis-a-vis the employer and
workman to direct reinstatement with full back wages. For instance,
the industry might have closed down or might be in severe financial
doldrums: the workman concerned might have secured better or
other employment elsewhere and so on. In such situations, there is a
vestige of discretion left in the Court to make appropriate
consequential orders. The Court may deny the relief of
reinstatement where reinstatement is impossible because the
industry has closed down. The Court may deny the relief of award
of full back wages where that would place an impossible burden on
the employer. In such and other exceptional cases the Court may
mould the relief, but, ordinarily the relief to be awarded must be
reinstatement with full back wages. That relief must be awarded
where no special impediment in the way of awarding the relief is
clearly shown. True, occasional hardship may be caused to an
employer but we must remember that, more often than not.
comparatively far greater hardship is certain to be caused to the
workman if the relief is denied than to the employer if the relief is
granted.”
13. In the judgment rendered in Surendra Kumar Verma (supra)
Hon‟ble the Supreme Court identified the following exceptional
circumstances where it would be inequitable to direct reinstatement with full
back wages:-
(i) The industry must have closed down or might be in severe
financial crisis;
(ii) The workman/employee concerned might have secured better or
other employment elsewhere;
(iii) That the industry has been closed down making it
impossible to reinstate an employee and pay him the back wages;
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(iv) The Court may deny the award of full back wages where
that would place an impossible burden on the employer.
14. Later, a two-Judge Bench of Hon‟ble the Supreme Court followed the
guiding principles laid down in Hindustan Tin Works (supra) in P.G.I of
Medical Education and Research vs. Raj Kumar, (2001) 2 SCC 54 and
held in para 8-9 and 12-14 as under:-
“8. While it is true that in the event of failure in compliance
with Section 25(F) read with Section 25(b) of the Industrial
Disputes Act, 1947 in the normal course of events the
Tribunal is supposed to award the back wages in its entirety
but the discretion is left with the Tribunal in the matter of
grant of back wages and it is this discretion, which
in Hindustan Tin Works Pvt. Ltd. case (supra) this Court has
stated must be exercised in a judicial and judicious manner
depending upon the facts and circumstances of each
case. While however recording the guiding principle for the
grant of relief of back wages this Court in Hindustans Case,
itself reduced the back wages to 75%, the reason being the
contextual facts and circumstances of the case under
consideration.
9. The Labour Court being the final court of facts came to a
conclusion that payment of 60% wages would comply with
the requirement of law. The finding of perversity or being
erroneous or not in accordance with law shall have to be
recorded with reasons in order to assail the finding of the
tribunal or the Labour Court. It is not for the High Court to
go into the factual aspects of the matter and there is an
existing limitation on the High Court to that effect. In the
event, however the finding of fact is based on any
misappreciation of evidence, that would be deemed to be an
error of law which can be corrected by a writ of certiorari.
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The law is well settled to the effect that finding of the
Labour Court cannot be challenged in a proceeding in a writ
of certiorari on the ground that the relevant and material
evidence adduced before the Labour Court was insufficient
or inadequate though however perversity of the order would
warrant intervention of the High Court. The observation, as
above, stands well settled since the decision of this Court
in Syed Yakoob Vs. K.S. Radhakrishna (AIR 1964 SCC
477).
……………………………………………………………….
12. Payment of back wages having a discretionary element
involved in it has to be dealt with, in the facts and
circumstances of each case and no straight jacket formula
can be evolved, though, however, there is statutory sanction
to direct payment of back wages in its entirety. As regards
the decision of this Court in Hindustan Tin Works Pvt.
Ltd. (supra) be it noted that though broad guidelines, as
regards payment of back wages, have been laid down by this
Court but having regard to the peculiar facts of the matter,
this Court directed payment of 75% back wages only.
13……………………………………………………………
14. The issue as raised in the matter of back wages has been
dealt with by the Labour Court in the manner as above
having regard to the facts and circumstances of the matter in
the issue upon exercise of its discretion and obviously in a
manner which cannot but be judicious in nature. In the event
however the High Courts interference is sought for there
exists an obligation on the part of the High Court to record
in the judgment, the reasoning before however denouncing a
judgment of an inferior Tribunal, in the absence of which,
the judgment in our view cannot stand the scrutiny of
otherwise being reasonable. There ought to be available in
the judgment itself a finding about the perversity or the
erroneous approach of the Labour Court and it is only upon
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recording therewith the High Court has the authority to
interfere. Unfortunately, the High Court did not feel it
expedient to record any reason far less any appreciable
reason before denouncing the judgment.”
15. From reading of the reproduced portion of the judgment in Raj
Kumar (supra) it transpires that Hon‟ble Supreme Court reiterated its view
that the payment of back wages, having a discretionary element involved in
it, has to be dealt with in the facts and circumstances of each case and that no
straight jacket formula can be evolved to determine the issue of back wages.
Taking into consideration host of factors dictating discretion in the matter,
the Court has to take the view as to whether the reinstated employee/worker
is entitled to back wages and if so, to what extent.
16. In the year 2005 the issue again cropped up before the Hon‟ble
Supreme Court in the case of Kendriya Vidalaya Sangathan vs S.C.
Sharma, (2005) 2 SCC 363, wherein the Hon‟ble Supreme Court, while
dilating on the issue of back wages held that, since the employee in the
aforesaid case had failed to discharge the initial burden to show that he was
not gainfully employed, there was ample justification to deny him back
wages, more so he had absconded from duty for a long period of two years.
17. In the same year the issue was again considered by a three-Judge
Bench of the Hon‟ble Supreme Court in Haryana Roadways vs. Rudhan
Singh 2005 (5) SCC 591. Para 8 of the judgment is worth taking note of and
is, therefore, set out below:-
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” 8. There is no rule of thumb that in every case where the
Industrial Tribunal gives a finding that the termination of
service was in violation of Section 25-F of the Act, entire
back wages should be awarded. A host of factors like the
manner and method of selection and appointment, i.e.,
whether after proper advertisement of the vacancy or
inviting applications from the employment exchange, nature
of appointment, namely, whether ad hoc, short term, daily
wage, temporary or permanent in character, any special
qualification required for the job and the like should be
weighed and balanced in taking a decision regarding award
of back wages. One of the important factors, which has to be
taken into consideration, is the length of service, which the
workman had rendered with the employer. If the workman
has rendered a considerable period of service and his
services are wrongfully terminated, he may be awarded full
or partial back wages keeping in view the fact that at his age
and the qualification possessed by him he may not be in a
position to get another employment. However, where the
total length of service rendered by a workman is very small,
the award of back wages for the complete period, i.e., from
the date of termination till the date of the award, which our
experience shows is often quite large, would be wholly
inappropriate. Another important factor, which requires to
be taken into consideration is the nature of employment. A
regular service of permanent character cannot be compared
to short or intermittent daily wage employment though it
may be for 240 days in a calendar year.
18. In Rudhan Singh (supra) the Hon‟ble Supreme Court introduced few
more matters, like manner and method of employment, nature of
appointment. whether ad hoc, short term, daily wage, temporary or
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permanent in character and length of services etc. etc. to be considered for
deciding the award of back wages. In UP State Brassware Corporation
Ltd. Vs Uday Narain Pandey, (2006) 1 SCC 479, a two-Judge Bench
reiterated the rule that the workman can be denied the back wages if he is
found gainfully employed during the intervening period and that it was for
the workman to plead and prima facie prove that he was not gainfully
employed.
19. In the case of Talwara Cooperative Credit and service society Vs.
Sushil Kumar, 2008 (9) SCC 489, the Hon‟ble Supreme Court noticed the
paradigm shift in the matter of burden of proof as regards the gainful
employment on the part of the employer, holding that having regard to the
provisions contained in Section 106 of the Indian evidence Act, the burden
though negative, would be on the workman and if only the same is
discharged, the onus of proof would shift to the employer to show that the
concerned employee was in fact gainfully employed. Reliance was placed on
the earlier judgment of Hon‟ble the Supreme Court Surendra Kumar
(supra).
20. All these judgments, which we have taken note of and many more
were considered at length by Hon‟ble the Supreme Court in the case of
Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyala,
(2013) 10 SCC 324 and the principles those were culled out by Hon‟ble the
Supreme Court are contained in Para 38 of the judgment which reads thus:-
” 38. The propositions which can be culled out from the
aforementioned judgments are:
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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 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 concerned Court
or Tribunal 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 be kept in view that in the cases of wrongful / illegal
termination of service, the wrongdoer is the employer and
sufferer is the employee/workman and there is no justification to
give 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
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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
of Hindustan Tin Works Private Limited (supra).
38.7. The observation made in J.K. Synthetics Ltd. v. K.P.
Agrawal (supra) 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.”
21. The judgment rendered in Deepali Gundu (supra) makes a little
departure and lays down vividly that ordinarily an employee, whose services
have been terminated and is seeking his reinstatement and is desirous to get
his back wages, is required to either plead or at least make a statement before
the Court of first instance that he/she was not gainfully employed or was
employed on lesser wages. The judgment further lays down that if the
employer wants to avoid payment of full back wages, then it has to plead
with cogent evidence that the employee/workman was gainfully employed
and was getting wages equal to the wages that he/she was drawing prior to
the termination to the services. The aforesaid observation of Hon‟ble
Supreme Court is premised on the settled law that the burden of proof of
existence of a particular fact lies on the person who makes a positive
statement about its existence. Para 38.3 of the judgment, highlighted
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hereinabove, states the legal position vividly. The latest view of the Hon‟ble
Supreme Court in the case of Ramesh Chand (supra) is also in tune with the
view taken by the Hon‟ble Supreme Court in case of Deepali Gundu
(supra). Para 7 of the judgment in Ramesh Chand (supra) states the legal
position on the subject and is reproduced here under:-
“The only question before us is whether the Labour Court
was justified in denying relief of back wages. In the case
of National Gandhi Museum v. Sudhir Sharma, this Court
held that the fact whether an employee after dismissal from
service was gainfully employed is something which is
within his special knowledge. Considering the principle
incorporated in Section 106 of the Indian Evidence Act,
1872, the initial burden is on the employee to come out with
the case that he was not gainfully employed after the order
of termination. It is a negative burden. However, in what
manner the employee can discharge the said burden will
depend upon on peculiar facts and circumstances of each
case. It all depends on the pleadings and evidence on record.
Since, it is a negative burden, in a given case, an assertion
on oath by the employee that he was unemployed, may be
sufficient compliance in the absence of any positive material
brought on record by the employer.”
22. Close on heels is a recent judgment of Hon‟ble the Supreme Court in
Maharashtra State Road Transport Corporation Vs. Mahadeo Krishna
Naik, (2025) 4 SCC 321, wherein also the same issue came up for
consideration and in paragraph Nos. 43 and 44 it has been held as under:-
“43. We cannot but endorse our wholehearted concurrence
with the views expressed in the aforesaid decisions. Taking
a cue therefrom, it can safely be concluded that ordering
back wages to be paid to a dismissed employee – upon his
dismissal being set aside by a court of law – is not anArif Hameed
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automatic relief; grant of full or partial back wages has to be
preceded by a minor fact-finding exercise by the industrial
adjudicator/court seized of the proceedings. Such exercise
would require the relevant industrial court or the
jurisdictional high court or even this Court to ascertain
whether in the interregnum, that is, between the dates of
termination and proposed reinstatement, the employee has
been gainfully employed. If the employee admits of any
gainful employment and gives particulars of the
employment together with details of the emoluments
received, or, if the employee asserts by pleading that he was
not gainfully employed but the employer pleads and proves
otherwise to the satisfaction of the court, the quantum of
back wages that ought to be awarded on reinstatement is
really in the realm of discretion of the court. Such discretion
would generally necessitate bearing in mind two
circumstances : the first is, the employee, because of the
order terminating his service, could not work for a certain
period under the employer and secondly, for his bare
survival, he might not have had any option but to take up
alternative employment. It is discernible from certain
precedents, duly noticed in Deepali Gundu Surwase (supra),
that the courts are loath to award back wages for the period
when no work has been performed by such an
employee. Such a view is no doubt debatable, having regard
to the ratio decidendi in Hindustan Tin Works (P)
Ltd. (supra), Surendra Kumar Verma (supra) and Deepali
Gundu Surwase (supra). Though the latter decision was
cited before the coordinate bench when it decided Phool
Chand (supra), any thoughtful discussion appears to be
absent.
44. There is one other aspect that would fall for
consideration of the court. In certain decisions, noticed
in Deepali Gundu Surwase (supra), it has been opined that
whether or not an employee has been gainfully employed is
within his special knowledge and having regard to Section
106 of the Evidence Act, 1872, the burden of proof is on
him. What is required of an employee in such a case? He
has to plead in his statement of claim or any subsequent
pleading before the industrial tribunal/labour court that he
has not been gainfully employed and that the award of
reinstatement may also grant him back wages. If the
employee pleads that he was not gainfully employed, he
cannot possibly prove such negative fact by adducing
positive evidence. In the absence of any contra-material on
record, his version has to be accepted. Reference in this
connection may be made to Section 17-B of the Industrial
Disputes Act, 1947, which confers a right on an employee to
seek “full wages last drawn” from the employer while the
challenge of the employer to an award directing
reinstatement in a higher court remains pending. There too,
what is required is a statement on affidavit regarding non-
employment and with such statement on record, the ball isArif Hameed
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22LPA 263/2023
in the court of the employer to satisfy the court why relief
under such section ought not to be granted by invoking the
proviso to the section. We see no reason why a similar
approach may not be adopted. After the employee pleads his
non-employment and if the employer asserts that the
employee was gainfully employed between the dates of
termination and proposed reinstatement, the onus of proof
would shift to the employer to prove such assertion having
regard to the cardinal principle that „he who asserts must
prove‟. Law, though, seems to be well settled that if the
employer by reason of its illegal act deprives any of its
employees from discharging his work and the termination is
ultimately held to be bad in law, such employee has a
legitimate and valid claim to be restored with all that he
would have received but for being illegally kept away from
work. This is based on the principle that although the
employee was willing to perform work, it was the employer
who did not accept work from him and, therefore, if the
employer‟s action is held to be illegal and bad, such
employer cannot escape from suffering the consequences.
However, it is elementary but requires to be restated that
while grant of full back wages is the normal rule, an
exceptional case with sufficient proof has to be set up by the
employer to escape the burden of bearing back wages.”
23. On the conspectus of the judicial opinion emerging from the
judgments taken note of herein above, the legal position that stands today is
more or less clear. To sum up, it may be stated that in case of wrongful
termination of services, reinstatement with continuity of service and back
wages though is a normal rule but not automatic. Whether or not and to what
extent the employee would be entitled to back wages is left to be determined
by the adjudicating authority or the Court by taking into consideration host of
factors like length of services of an employee/ workman, the nature of
misconduct if any found proved against him, the financial condition of the
employer as also whether the workman was gainfully employed or was
employed on a lesser wages during the intervening period. The initial burden
to prove that the workman was not gainfully employed is on the workman
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who is required to discharged the same by either pleading or at least making
a statement before the adjudicating authority or the court of first instance, as
the case may be, that he was not gainfully employed or was employed with
lesser wages. Once such a statement is made by the workman, the onus shifts
to the employer, who is seeking to avoid payment of the back wages, to plead
and demonstrate by leading cogent evidence that the workman was gainfully
employed and was getting wages equal to the wages he was trying prior to
the termination of his services.
24. After stating the legal position, let us now turn to the facts of the
instant case. We need to bear in mind that in the instant case an inquiry was
conducted by the appellant-Corporation into the alleged misconduct of the
original writ petitioner, who, at the relevant time was engaged as a
Conductor/Ticket Collector with a passenger vehicle of the appellant –
Corporation. The said passenger vehicle was found carrying in as many as 22
passengers without tickets. The inquiry conducted by the Inquiry Officer
ended into making a recommendation for reinstatement of the original writ
petitioner, giving him benefit of doubt. It would mean that the Inquiry
Officer did not find adequate evidence to indict the original writ petitioner
but found material sufficient enough to doubt, at least, the failure of the
original writ petitioner to perform his duties. To put it short, the original writ
petitioner was reinstated in service by the appellant-Corporation, giving him
the benefit of doubt and, therefore, cannot be said to have been full
exonerated of the charge. That apart, the original writ petitioner has also
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failed to discharge his initial burden of at least pleading before the writ Court
that during the period of ouster from service he was not gainfully employed.
This relieved the appellant-Corporation also of the pleading and proving that
during the intervening period the original writ petitioner was not gainfully
employed and had received or earned wages equal to the wages which he had
been receiving prior to his termination. As a matter of fact, the pleadings
from both the sides are deficient.
25. Having regard to the legal position on the point adumbrated by the
Hon‟ble Supreme Court in a long line of judgments, we are put in a tight spot
as to whether in the given facts and circumstances of the case the original
writ petitioner could be entitled to the back wages and, if yes, to what extent.
26. The appellants have pleaded that the financial health of the appellant-
Corporation is in doldrums and burdening the corporation with the payment
of huge arrears of the salary to the original writ petitioner, who has not
rendered any work during the intervening period of almost 12 years, would
be against public interest and tell upon heavily on the financial health of the
corporation. This averment of the appellant has gone un-rebutted. Admittedly
it is one of the factors to be taken into consideration while taking a decision
with regard to grant of back wages.
27. Having regard to the legal position on the subject being little fluid, we
cannot put the entire blame on the workman for not pleading and claiming
that he was not gainfully employed during the intervening period. Mere fact
that he filed the writ petition seeking back wages raises the presumption that
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the original writ petitioner was not gainfully employed or that he could not
earn the wages equal to the wages he was being paid at the time of his
termination from service. The appellant-Corporation too has not gone into
this aspect of the matter but has denied the back wages only on the ground
that the financial health of the appellant-Corporation does not permit
payment of huge arrears of wages/salary to the original writ petitioner for an
intervening period of 12 years. The appellant-Corporation has thus invoked
the principle of „no work no wages‟.
28. We are aware that the principle of „no work no wages‟ cannot be
invoked in a case were the person has been forced to sit ideal because of
illegal and an unjustified order of termination. The original petitioner could
not work in the corporation, for, he was not permitted to do so because of
termination of his services and severance of master/servant relationship.
29. In the given facts and circumstances explained above, we were initially
of the view that it would be in consonance with the principles of justice and
equity to remand the case back to writ Court with liberty to parties to
supplement their pleadings so that the issue, as to whether the original writ
petitioner was gainfully employed during the intervening period, could be
adequately addressed and conclusively determined. However, having regard
to the fact that the original writ petitioner having litigated in the Courts for
more than 34 years has passed away during the pendency of SWP No.
1888/16, it would be too late in the day to send the case for re-determination
of this issue.
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30. Having regard to the facts and circumstances of the case and dictated
by the principles of justice, equity and good conscience, we hold the original
writ petitioner entitled to 50% of back wages for the intervening period in
question i.e. with effect from 21.08.1987 to 22.07.1999. The appellant-
Corporation is directed to release the back wages to the aforesaid extent in
favour of the respondents within a period of three months from the date of
this judgment failing which the entire arrears shall become payable along
with interest at the rate of 6% per annum, to be reckoned from three months
after passing of this judgment.
31. The judgment of the Writ Court is modified to the aforesaid extent and
the appeal is disposed of, accordingly.
5.
(Sanjay Parihar) (Sanjeev Kumar)
Judge Judge
SRINAGAR:
11.07.2025
Anil Raina, Addl. Registrar/Secy
Whether the order is reportable: Yes/No
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