IMPORTANT POINT
Reinstatement in service – Even if Court passes order of reinstatement in service, order of payment of back wages is not automatic – It all depends on facts and circumstances of case.

JUDGMENT :

ABHAY S. OKA, J.

FACTUAL ASPECTS

Leave granted.

1. The appellant was employed as a conductor on 22nd June 1985 by the respondent-Delhi Transport Corporation. The appellant was served with a charge sheet on 8th September 1992 alleging that while discharging duties as a conductor on a particular route, he collected a sum of Rs. 4/- from two passengers, but failed to issue tickets to them. After enquiry, the respondent passed an order of removal of the appellant from service with effect from 14th June 1996.

2. The respondent raised an Industrial Dispute before the Labour Court and challenged the enquiry and consequent order of removal. The Labour Court, after hearing the parties, came to the conclusion that the enquiry was illegal. Therefore, the Labour Court permitted the respondent to adduce evidence. By the award dated 17th March 2009, the Labour Court came to the conclusion that the charge against the appellant was not established by the respondent. Accordingly, by the said award, the Labour Court passed an order of reinstatement of the appellant in service. The Labour Court was of the view that the appellant has not discharged the burden of proving that he was not gainfully employed from the date of removal from service. Therefore, the Labour Court denied back wages.

3. The respondent accepted the Award of the Labour Court. Being aggrieved by the denial of the back wages, the appellant filed a writ petition before the learned Single Judge of Delhi High Court. The writ petition was dismissed. Being aggrieved by the dismissal of the writ petition, the appellant filed an appeal before the Division Bench of the Delhi High Court. By the impugned judgment dated 11th December 2015, the denial of back wages has been upheld by the Division Bench.

4. Notice was issued by this Court on 18th March 2016. We may note here that in terms of the award of the Labour Court which was not challenged by the respondent, the appellant was reinstated in service with effect from 23rd July 2009. He superannuated on 31st March 2020.

SUBMISSIONS

5. The learned senior counsel appearing for the appellant urged that even in the statement of claim filed before the Labour Court, the appellant had specifically pleaded that he was unemployed from the date of his removal from service. He submitted that before the Labour Court, the appellant was subjected to cross-examination on this aspect by the advocate for the respondent. He would, therefore, submit that in the facts of the case, the appellant discharged the burden on him by proving that he did not have any employment after his removal from service by the respondent. He submitted that there is no evidence to the contrary and therefore, the appellant is entitled to full back wages.

6. Learned counsel appearing for the respondent pointed out that before the Labour Court, on 18th July 2008, an affidavit was filed by the appellant in which there was an assertion that the appellant was unemployed from the date of his termination and was not able to secure any employment. However, the said affidavit was withdrawn and a fresh affidavit was filed in which no such specific assertion was incorporated. The learned counsel would, therefore, submit that the appellant has not discharged the burden on him of making out of a case that he was unemployed from the date of termination of service. As directed by this Court, he has placed on record documents showing retiral dues paid to the appellant and a statement incorporating the salary which he could have drawn from the date of his termination till the date of his reinstatement.

OUR VIEW

7. 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 vs. Sudhir Sharma, (2021) 12 SCC 439 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