In cases of wrongful/illegal termination of service, the wrongdoer is the employer and there is no justification to relieve the employer of the burden to pay the employee/workman his dues in the form of full back-wages.

G.S. Sandhawalia, J.

The only argument that has been raised in the present writ petition by counsel for the petitioner is that the Labour Court is not justified in granting continuity of service and back-wages on account of the fact that the workman never contributed to the petitioner-bank for the period he remained out of service from 2001 till the passing of the award on 13.05.2013. The Labour Court, in its award, has noticed that the dismissal was on account of misconduct from March, 1997 to May, 1998 in respect of 27 Saving Bank Accounts. The bank had charge-sheeted the workman but none of the account holder was examined. A finding was recorded that the inquiry held was not fair and proper and the management was given the opportunity to prove the charges. The workman was also acquitted in the criminal case lodged under Sections 406, 409 and 420 IPC. Before the Labour Court also, the Management failed to prove that there was misconduct and misappropriation on the part of the workman and accordingly, reinstatement was ordered.

2. Once the workman has been kept out of employment due to the illegal acts of the management and it has not resorted and complied with the principles of natural justice and the worker has been wrongly victimized, the Labour Court was well-justified in granting continuity of service and back-wages, which is the normal rule. The Apex Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and Others, (2013) 10 SCC 324, after examining the case taw, has culled out the following principles:--

33. The propositions which can be culled out from the aforementioned judgments, are:

(i) In cases of wrongful termination of service, reinstatement with continuity of service and back-wages is the normal rule.

(ii) 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.

(iii) 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.

(iv) The cases in which the Labour Court/Industrial Tribunal exercises power u/s 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.

(v) 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 princ