IMPORTANT POINTS
Workers not entitled, as of right, to back wages on setting aside of order of dismissal and direction for reinstatement.
For back wages the workman necessarily has to plead and prove that he was not gainfully employed. Thereafter burden shifts to employer to rebut the same. Quantum of back wages depends on various factors.

Headnote:(a) Labour law – Back wages – Workers not entitled, as of right, to back wages on setting aside of order of dismissal and direction for reinstatement. (Para 11)
       (b) Labour law – Back wages – Workman necessarily has to plead and prove that he was not gainfully employed – Thereafter burden shifts to employer to rebut the same – Quantum of back wages depends on various factors. (Para 12, 13)
       (2003) 6 SCC 141; (2005) 5 SCC 591; (2006) 1 SCC 479; (2007) 2 SCC 433; (2009) 9 SCC 601; (2009) 15 SCC 327; (2013) 10 SCC 324 – Relied upon
       Facts of the case:
       The short question arising in this appeal, is whether the High Court and the Labour Court were justified in awarding full back wages to the 37 workmen represented by Workmen Union after setting aside their dismissal order holding it to be bad in law being in contravention of Section 25F of the Industrial Disputes Act, 1947 and, in consequence, directing reinstatement of these workmen in services of the appellant in their Public Health and Engineering Department (PHED).
       Finding of the Court;
       Courts below have not adhered to the law laid down on the matter.
       Result: Appeal allowed.

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is directed against the final judgment and order dated 02.02.2017 of the High Court of Jharkhand at Ranchi in L.P.A. No.484 of 2008 whereby the Division Bench of the High Court dismissed the appeal filed by the appellant herein and upheld the order dated 08.07.2008 passed by the Single Judge of the High Court in W.P.(L) No.3962 of 2006.

3. Few facts need to be mentioned hereinbelow for the disposal of the appeal, which involves a short issue.

4. 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 37 workmen represented by Workmen Union after setting aside their dismissal order holding it to be bad in law being in contravention of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as “I.D. Act”) and, in consequence, directing reinstatement of these workmen in services of the appellant in their Public Health and Engineering Department (PHED).

5. The appellant is the Department of the State of Jharkhand [Public Health and Engineering Department (PHED)] whereas the respondent is the Workmen Union representing the interest of the workmen working in the Public Health and Engineering Department (PHED).

6. The State made a reference under Section 10 of the I.D. Act to the Labour Court, Ranchi at the instance of the respondentUnion to decide the following dispute:

“Whether the dismissal and non absorption of 37 acting daily wages Hastrashid employees as mentioned in schedule “K” in work charged establishment by Public Health Engg. Division, East Ranchi (Department of PHED, Jharkhand) is lawful. If not, what other reliefs their employees are entitled to?”

7. By award dated 29.06.2005, the Labour Court (Annex.P-1) answered the reference in respondent-Union’s favour and directed reinstatement of 37 workmen with payment of full back wages in Reference Case No.6 of 2002.

8. The appellant (employer), felt aggrieved by the award of the Labour Court, filed writ petition in the High Court of Jharkhand. The Single Judge of the High Court, by order dated 08.07.2008, 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 appeal and upheld the order of the Single Judge, which gave rise to filing of this appeal by way of special leave by the appellantemployer in this Court.

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 workmen 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 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 evi

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2018 Supreme(SC) 903

Cases Referred (7)