NEUTRAL CITATION

C/LPA/1512/2019 ORDER DATED: 07/08/2023

2023:GUJHC:41283-DB

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/LETTERS PATENT APPEAL NO. 1512 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 10898 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1512 of 2019
==========================================================
CARGO MOTORS ( GUJARAT ) LIMITED
Versus
KRITIKANT SHIVAJIRAV JADAV
==========================================================
Appearance:
MR DG CHAUHAN(218) for the Appellant(s) No. 1
RONAK D CHAUHAN(7709) for the Appellant(s) No. 1
for the Respondent(s) No. 2
MR SUBRAMANIAM IYER(2104) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE N.V.ANJARIA

Date : 07/08/2023
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

Heard the learned advocates for the respective parties.

2. This Letters Patent Appeal is directed against the judgment and

order dated 12.3.2019 passed by the learned single Judge affirming the
Labour Court’s award dated 3.1.2018 for grant of relief of reinstatement
with full back wages. A categorical finding has been returned by the
leaned single Judge in para Nos. 5, 13 and 14 of the impugned judgment
that the manner in which the departmental inquiry was conducted by the
appellant employer on the allegations of misconduct, it was a case of
victimisation of the workman. The departmental inquiry conducted by
the employer was found to be vitiated for not providing opportunity to the
workman to cross-examine the witnesses of the employer and not giving
opportunity to produce his own witnesses.

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2.1 In addition to above, it may be noted that challenging the

termination order dated 3.8.2001, the Reference was made by the
workman in the year 2001, which came to be decided after a period of 17
years. The writ petition challenging the award was filed on 21.6.2018,
after about five months of the making of the award. The workman was
reinstated only on 2.8.2019, after a period of 1 year and 7 months, for
which no explanation could be offered before us. The instant appeal
challenging the order of the learned single Judge has been filed on
10.5.2019.

3. On a query made by the Court, the learned counsel for the

appellant could not place before us as to whether there was any interim
order in the writ petition. There is no challenge to the award of the
Labour Court except that the award of 100% backwages. Further that
there is no explanation in not reinstating the workman for a period of
about 1 year and 7 months.

4. Having noted the above facts and circumstances of the instant case,
we are required to note the argument of the learned counsel for the
appellant, seeking to challenge the order passed by the learned single
Judge affirming the award of the Labour Court for grant of 100% back
wages. Reliance is placed on the decisions of the Apex Court in P.V.K.
Distillery Limited vs. Mahendra Ram [(2009) 5 SCC 705] and
Kanpur Electricity Supply Company Ltd. vs. Shamim Mirza [(2009)
1 SCC 20] to assert that with the award of reinstatement, direction for
payment of 100% back wages is not automatic. The Labour Court and
the learned Single Judge has ignored that the facts and circumstances of
the individual case have to be examined to decide as to what would be the
amount of back wages admissible to the workman. In a case where
termination is set aside, back wages cannot be paid as a matter of course.

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4.1 Learned counsel for the respondent, on the other hand, referred to
the findings returned by the Labour Court and the learned single Judge,
noted above, to assert that the workman had been deprived the
employment at the instance of the employer. The employer cannot be
allowed to take benefit of its own wrong.

4.2 In Deepali Gundu Surwase vs. Kranti Junior Adhyapak

Mahavidyalaya (D.Ed.) and others [(2013) 10 SCC 324], the Apex
Court has held that in case of wrongful termination of services,
reinstatement with continuity of service and back-wages, is normal rule.
The propositions which have been culled out after consideration of
various decisions of teh Apex Court therein noted in paragraph-33 are as
under :

“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

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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 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.
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 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.
vi) 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 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

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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).
vii) 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.”

5. In light of the above legal principles, we are required to note that in

the facts and circumstances of the instant case, it is established that the
workman was illegally terminated. The inquiry was vitiated, as it was
conducted without providing opportunity of hearing. The Labour Court
took around 17 years in deciding the Reference and it is not before us as
to who was at fault. Whether there was delay in deciding the Reference
attributed to the employer. In absence of all these information and in
view of the findings returned by the Labour Court, as noted by the
learned single Judge in the order impugned, it is more than clear that it is
a case of victimisation of workman. It is settled law that in a case of
termination of employment, though award of backwages is not automatic
with the award of reinstatement, but in case the fault is found on the part
of the employer, 100% wages can be provided. The fundamental
principle is that no one can take benefit of its own wrong.

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6. In the above view, we do not find any good ground to challenge the
findings returned by the Labour Court and affirmed by the learned single
Judge. The appeal is dismissed. The Civil Application also stands
disposed of, accordingly.

(SUNITA AGARWAL, CJ )

(N.V.ANJARIA, J)
C.M. JOSHI

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