STATE ROAD TRANSPORT CORPORATION, JAIPUR versus SHRI PHOOL CHAND(DEAD) THROUGH LRS.
[2018] 11 S.C.R. 448, Supreme Court of India, 2018
Outcome: Case Partly allowed (Granted)
Segment: Facts
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[2018] 11 S.C.R.
      RAJASTHAN STATE ROAD TRANSPORT
CORPORATION, JAIPUR
v.
SHRI PHOOL CHAND(DEAD) THROUGH LRS.
(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
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
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
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
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
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.
[2018] 11 S.C.R. 448
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1.  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. [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
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]
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]
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
(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
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
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]
 RAJASTHAN STATE ROAD TRANSPORT CORPN.  JAIPUR  v. SHRI
PHOOL CHAND (D) THR. LRS.
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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]
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
(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
[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
[2009] 12 SCR 583
  referred to
Para 13
[2009] 10 SCR 908
  referred to
Para 13
[2013] 9 SCR 1
  referred to
Para 13
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)
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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The Judgment of the Court was delivered by
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
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,
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.
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
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
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
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
RAJASTHAN STATE ROAD TRANSPORT CORPN. JAIPUR v. SHRI
PHOOL CHAND (D) THR. LRS. [ABHAY MANOHAR SAPRE, J.]
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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
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
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
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 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
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
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Narain Pandey, (2006) 1 SCC 479, J.K. Synthetics Ltd. vs. K.P.
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.
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
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.
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
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
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
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.
RAJASTHAN STATE ROAD TRANSPORT CORP.  JAIPUR v. SHRI
PHOOL CHAND (D) THR. LRS. [ABHAY MANOHAR SAPRE, J.]

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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.