STATE ROAD TRANSPORT CORPORATION, JAIPURversusSHRI PHOOL CHAND(DEAD) THROUGH LRS.

448                     [2018] 11
               SUPREME COURT      S.C.R. 448
                               REPORTS                    [2018] 11 S.C.R.


A                 RAJASTHAN STATE ROAD TRANSPORT
                       CORPORATION, JAIPUR
                                v.
              SHRI PHOOL CHAND(DEAD) THROUGH LRS.
B                        (Civil Appeal No.1756 of 2010)
                            SEPTEMBER 20, 2018
      [ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]
            Service Law – Payment of back wages – Appellant-
      Corporation dismissed workman from the service on the ground of
C
      dereliction of duties – Labour Court directed reinstatement of the
      workman in service with award of full back wages – High Court
      upheld the award passed by the Labour Court – On appeal, held:
      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
D     upon setting aside of his dismissal/termination order – The Court is
      required to consider several factors which have been discussed
      elaborately in the various judgments of the Supreme Court and then
      record a finding as to whether it is a fit case for award of the back
      wages and, if so, to what extent – In the instant case, neither the
      Labour Court nor the High Court kept in consideration the
E
      principles of law – Similarly, no party to the proceedings pleaded
      or adduced any evidence to prove the material facts required for
      award of the back wages enabling the Court to award the back
      wages – Direction of the Courts below caused prejudice to the
      appellant – In the interest of justice, the respondents (LRs of the
F     deceased workman) awarded 50% of the total back wages –
      Constitution of India – Art.142.
            Partly allowing the appeal, the Court
            HELD: Whether the Courts below, namely, the High Court
      and the Labour Court were justified in awarding full back wages
G     to the deceased workman (now represented by his legal
      representatives - the respondents herein) after setting aside his
      dismissal order holding it to be bad in law and, in consequence,
      directing his reinstatement in service of the appellant.

H
                                     448
RAJASTHAN STATE ROAD TRANSPORT CORPN. JAIPUR v. SHRI                 449
             PHOOL CHAND (D) THR. LRS.

      1. A workman has no right to claim back wages from his         A
employer as of right only because the Court has set aside his
dismissal order in his favour and directed his reinstatement in
service. [Para 11] [452-D]
      2. It is necessary for the workman in such cases to plead
and prove with the aid of evidence that after his dismissal from     B
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. [Para 12] [452-E-F]             C

     3. In some cases, the Court may decline to award the back
wages in its entirety whereas in some cases, it may award partial
amount depending upon the facts of each case by exercising its
judicial discretion in the light of the facts and evidence.
[Para 13] [452-F-G]                                                  D

     M.P. State Electricity Board v. Jarina Bee(Smt.)
     (2003) 6 SCC 141 : [2003] 1 Suppl. SCR 535 ;
     G.M. Haryana Roadways v. Rudhan Singh (2005) 5
     SCC 591 : [2005] 1 Suppl. SCR 569 ; U.P. State
     Brassware Corporation v. Uday Narain Pandey                     E
     (2006) 1 SCC 479 : [2005] 5 Suppl. SCR 609 ;
     J. K. Synthetics Ltd. v. K.P. Agrawal & Anr. (2007) 2
     SCC 433 : [2007] 2 SCR 60 ; Metropolitan Transport
     Corporation v. V. Venkatesan, (2009) 9 SCC 601 :
     [2009] 12 SCR 583 ; Jagbir Singh v. Haryana State               F
     Agriculture Marketing Board & Anr. (2009) 15 SCC
     327 : [2009] 10 SCR 908 ; Deepali Gundu Surwase v.
     Kranti Junior Adhyapak Mahavidyalaya(D.Ed.) & Ors.
     (2013) 10 SCC 324 : [2013] 9 SCR 1 - referred to.
      4. In the instant case, neither the Labour Court nor the       G
High Court kept in consideration the principles of law. Similarly,
no party to the proceedings either pleaded or adduced any
evidence to prove the material facts required for award of the
back wages enabling the Court to award the back wages.
[Para 15] [453-C-D]
                                                                     H
450            SUPREME COURT REPORTS                     [2018] 11 S.C.R.


A           5. The Labour Court in one line simply directed the
      appellant (employer) to pay full back wages for a long period to
      the deceased workman while directing his reinstatement in
      service. Therefore, direction of the Courts below awarding full
      back wages to the workman, has caused prejudice to the appellant
      (employer). [Paras 16 and 17] [453-D-E]
B
             6. However, having regard to all facts and circumstances
      of the case such as period and money spent in litigation by the
      workman and on his death by his legal representatives coupled
      with the fact that the workman has since expired, it is just and
      proper and in the interest of justice to award to the respondents
C
      (legal representatives of Late Phool Chand) 50% of the total back
      wages. [Para 18] [453-F]
                             Case Law Reference
      [2003] 1 Suppl. SCR 535         referred to           Para 13
D
      [2005] 1 Suppl. SCR 569         referred to           Para 13
      [2005] 5 Suppl. SCR 609         referred to           Para 13
      [2007] 2 SCR 60                  referred to          Para 13
E     [2009] 12 SCR 583                referred to          Para 13
      [2009] 10 SCR 908                referred to          Para 13
      [2013] 9 SCR 1                   referred to          Para 13


F
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1756
      of 2010.
            From the Judgment and Order dated 12.02.2008 of the High Court
      of Judicature of Rajasthan at Jaipur in D. B. Special Appeal (Writ)
G     No. 912 of 1998.
            Niraj Bobby Paonam(for S. K. Bhattacharya), Adv. for the
      Appellant.
            Anoop Kr. Srivastav, R. N. Pareek, Advs. for the Respondents.

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 RAJASTHAN STATE ROAD TRANSPORT CORPN. JAIPUR v. SHRI                           451
  PHOOL CHAND (D) THR. LRS. [ABHAY MANOHAR SAPRE, J.]

      The Judgment of the Court was delivered by                                A
      ABHAY MANOHAR SAPRE, J. 1. This appeal is directed
against the final judgment and order dated 12.02.2008 of the High Court
of Judicature for Rajasthan at Jaipur in D.B. Special Appeal (Writ)
No.912 OF 1998 whereby the Division Bench of the High Court dismissed
the appeal filed by the appellant herein and upheld the order dated             B
14.07.1998 passed by the Single Judge of the High Court in S.B.Civil
Writ Petition No.5534 of 1996.
      2. Few facts need to be mentioned infra for the disposal of the
appeal, which involves a short issue.
       3. The short question, which arises for consideration in this appeal,    C
is whether the Courts below, namely, the High Court and the Labour
Court were justified in awarding full back wages to the deceased
workman (now represented by his legal representatives - the respondents
herein) after setting aside his dismissal order holding it to be bad in law
and, in consequence, directing his reinstatement in service of the appellant.   D
       4. The appellant is a State Road Transport Corporation for the
State of Rajasthan. The deceased –Phool Chand was in the employment
of the appellant as a driver.
       5. The appellant dismissed Phool Chand from the service after
holding departmental inquiry on the ground of dereliction of duties on          E
various occasions while he was in the employment. The charge against
the deceased-workman was his continuous absence from the work, which
was proved.
       6. Phool Chand felt aggrieved by his dismissal and filed an
application before the Labour Court. The Labour Court, by award dated           F
26.02.1996 held the charge against Phool Chand as proved but interfered
in the quantum of punishment.
       7. The Labour Court converted the punishment of removal from
service to that of “stoppage/forfeit of four annual grade increments
without cumulative effect” and directed the reinstatement of the deceased       G
workman in service with award of full back wages for the period of 13
years (16.11.1983 to 24.02.1996).
     8. The appellant (employer), felt aggrieved by the award of the
Labour Court, filed a writ petition in the High Court of Rajasthan. The
                                                                                H
452            SUPREME COURT REPORTS                          [2018] 11 S.C.R.


A     Single Judge of the High Court, by order dated 14.07.1998, 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
B     High Court dismissed the special appeal and upheld the order of the
      Single Judge, which gave rise to filing of this appeal by way of special
      leave by the appellant-employer 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
C     while modifying the impugned order award 50% back wages to the
      deceased workman (his legal representatives) 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
D     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,
E     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.

F            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 evidence. The questions, how the back wages is
      required to be decided, what are the factors to be taken into consideration
      awarding back wages, on whom the initial burden lies etc. were
G     elaborately discussed in several cases by this Court wherein the law on
      these questions has been settled. Indeed, it is no longer res integra.
      These cases are, M.P. State Electricity Board vs. Jarina Bee(Smt.),
      (2003) 6 SCC 141, G.M. Haryana Roadways vs. Rudhan Singh,
      (2005) 5 SCC 591, U.P. State Brassware Corporation vs. Uday
H
  RAJASTHAN STATE ROAD TRANSPORT CORP. JAIPUR v. SHRI                          453
   PHOOL CHAND (D) THR. LRS. [ABHAY MANOHAR SAPRE, J.]

Narain Pandey, (2006) 1 SCC 479, J.K. Synthetics Ltd. vs. K.P.                 A
Agrawal & Anr., (2007) 2 SCC 433, Metropolitan Transport
Corporation vs. V. Venkatesan, (2009) 9 SCC 601, Jagbir Singh vs.
Haryana State Agriculture Marketing Board & Anr., (2009) 15 SCC
327) and Deepali Gundu Surwase vs. Kranti Junior Adhyapak
Mahavidyalaya(D.Ed.) & Ors., (2013) 10 SCC 324.
                                                                               B
      14. The Court is, therefore, required to keep in consideration
several factors, which are set out in the aforementioned cases, and then
to record a finding as to whether it is a fit case for award of the back
wages and, if so, to what extent.
       15. Coming now to the facts of the case at hand, we find that           C
neither the Labour Court and nor the High Court kept in consideration
the aforesaid principles of law. Similarly, no party to the proceedings
either pleaded or adduced any evidence to prove the material facts
required for award of the back wages enabling the Court to award the
back wages.
                                                                               D
       16. On the other hand, we find that the Labour Court in one line
simply directed the appellant (employer) to pay full back wages for a
long period to the deceased workman while directing his reinstatement
in service.
      17. We cannot, therefore, concur with such direction of the Courts       E
below awarding full back wages to the workman which, in our opinion,
has certainly caused prejudice to the appellant (employer).
       18. However, having regard to all facts and circumstances of the
case such as period and money spent in litigation by the deceased
workman and on his death by his legal representatives coupled with the         F
fact that the workman–Phool Chand has since expired, we consider it
just and proper and in the interest of justice to award to the respondents
(legal representatives of Late Phool Chand) 50% of the total back wages.
       19. This we award to the respondents in exercise of our powers
under Article 142 of the Constitution of India for doing substantial justice
                                                                               G
to the parties concerned having reiterated the legal principles which
govern the question of award of back wages.
       20. In the light of the foregoing discussion, the appeal succeeds
and is allowed in part. Impugned order is modified to the extent indicated
above.
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454                SUPREME COURT REPORTS                    [2018] 11 S.C.R.


A             21. Let the amount be worked out and be paid by the appellant to
      the respondents after proper verification within 3 months from the date
      of this judgment.


      Ankit Gyan                                            Appeal partly allowed.
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