IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction APPELLATE SIDE Present: The Hon’ble Justice Shampa Dutt (Paul) WPA 1178 of 2024 The Workman of Bharat Coking Coal Limited Vs Union of India & Anr. For the Petitioner : Mr. Soumya Majumder, ld. Sr. Adv. Mr. Ravi Kr. Dubey. For the Respondent No. 2 : Mr. Susanta Pal, Mr. Pradipta Bose, Ms. Madhumanti Chakraborty, Mr. Nilankan Banerjee. For the Union of India : Mr. Shiv Chandra Prasad, Ms. Smita Pal. Judgment reserved on : 01.07.2026 Judgment delivered on : 22.07.2026 Shampa Dutt (Paul), J.: 1. The writ application has been preferred challenging an order dated 25.01.2023, passed by the learned Central Government Industrial Tribunal, Asansol inter alia, dismissing the Complaint Case No. 03 of 2002 and directing for payment of 30% back wages only. 2. The petitioner‟s case in short is that the petitioner was appointed by the General Manager, Chanch Victoria Area of the Company on 2 17.08.1990/05.09.1990 and was re-designated in August 1991 as “Fitter Apprentice”. 3. The petitioner was transferred (1st time) to Basantimata Colliery and accordingly on 10.09.1991 the petitioner joined as “Fitter Apprentice” at Basantimata Colliery. 4. Thereafter, the petitioner was transferred (2nd time) in the same capacity to area Workshop in March, 1993. 5. Thereafter, the petitioner was once again transferred (3rd time) from area workshop to Victoria West Colliery as “Fitter Apprentice”, where he joined in June, 1995. 6. The petitioner was authorized by the Agent of the Company to perform the duty of “Lamp Issue Clerk” vide his authorization letter dated 03.01.1996. 7. By his letter dated 06.06.1997, the petitioner raised industrial dispute against denial of regularization, which ultimately culminated in Order of Reference dated 30.03.1999/22.04.1999 being registered as Reference no. 44 of 1999. 8. Petitioner's service was stopped on 04.06.1999 and was then allowed to join on 16.11.1999 i.e., after more than 5 months; and on the very next day, i.e., 17.11.1999 again stopped and again allowed to join on 23.11.99, with a direction to report for duty to Engineer underground. 9. Petitioner was again transferred from Victoria West Colliery to Dahibari Colliery (4th time), which he joined under protest on 17.01.2001. 10. Surprisingly, on 16.09.2002 the petitioner was once again transferred from Dahibari to Basantimata Colliery (5th time). 3 11. On 07.10.2002, your petitioner filed a complaint u/s. 33A of the Act which was registered as Complaint Case no. 03 of 2002. 12. During the pendency of the proceeding before the CGIT, Asansol being Reference no. 44 of 1999 the management dismissed the petitioner from service by their letter dated 09/16.01.2004, pursuant to purported charge sheet dated 07.12.2002 for non- joining his place of posting on transfer (5th time), effected by letter dated 16.09.2002. 13. On 19.01.2004, the company filed an application being Application no. 01 of 2004 seeking approval of dismissal of the petitioner. 14. On 23.04.2004 the petitioner filed Complaint Case no. 01 of 2004 u/s 33A of the Act against the dismissal order. 15. Upon hearing the parties, the learned Tribunal passed a common order dated 02.12.2009, inter alia, setting aside the dismissal order and directing for reinstatement of the petitioner as also holding that there was no valid reason to transfer the workman. 16. The order dated 02.12.2009 was challenged by the company by preferring a writ petition being W.P. 11852 (w) of 2010, which was kept pending for several years. 17. During the pendency of the W.P. 11852 (w) of 2010, the presiding officer of the learned CGIT passed award dated 16.02.2017, in respect of the Reference Case no. 44 of 1999, inter alia, regularizing the service of petitioner as Lamp Issue Clerk in grade -III, w.e.f. his functioning as Lamp Issue Clerk i.c., 03.01.1996 and accordingly refixed his pay in terms of National Coal Wage Agreement -V to VI. 4 18. The award dated 16.02.2017 passed by the CGIT was challenged by the company by filing W.P. 25941 (w) of 2017. Upon hearing all the parties, The Hon'ble High Court has been pleased to dismiss the writ petition by an order dated 11.06.2018, thereby upholding the award dated 16.02.2017. 19. On 24.04.2019, the Hon'ble High Court disposed of the W.P. 11852 (w) of 2010, inter alia, remanding the matter back to the learned Tribunal for adjudication afresh on the applications being Complaint Case no.3 of 2002, Application No. 1 of 2004 and Complaint Case no. 1 of 2024. 20. The presiding officer of the learned Tribunal by an order dated 25.01.2023, inter alia, held the dismissal to be invalid and set aside the same and directed for payment of 30% back wages to the petitioner. 21. The challenge in the instant writ petition lies against the part of the order dated 25.01.2023 passed in respect of application filed u/s. 33A of the Act, being Complaint Case no. 03 of 2002 by which the transfer of the petitioner was held to be justified and also the fact that the Tribunal in spite of holding that the dismissal of the petitioner is bad granted only 30% back wages. 22. It is further stated that the petitioner herein has been singled out and subjected to transfers in succession, specifically after raising of industrial dispute against denial of regularization, which goes to show that the action of the company was vitiated by mala fide intent and victimization. 5 23. It is further stated that after passing of award dated 16.02.2017 as well as the order dated 25.01.2023, it has been proved beyond doubt that the management has adopted “unfair labour practice” and kept the petitioner out of service, and as such employee cannot be held responsible for the same and made to suffer on account of the management not allowing him to join his service. 24. Mr. Majumder learned senior counsel appearing for the petitioner submits that the learned Tribunal failed to appreciate that the employee was forcefully asked to work in a inferior post by way of transfer, during the pendency of reference case no.44 of 1999, whereas other employees were retained in the Dahibari Colliery, and as such there was no occasion to arrive at the conclusion that order dated 12.09.2002 directing the employee to work as fitter apprentice instead of lamp issue clerk in the garb of transfer, did not amount to any change in condition of service connected with the Reference Case no. 44 of 1999 and in the process the learned Tribunal failed to appreciate that the post and work of Lamp Issue Clerk is superior to that of Fitter. 25. Mr. Majumder relies upon the judgment of the Supreme Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya & Ors. (2013) 10 SCC 324 in support of his contention and submits that when the action of the management in terminating the service of the employee has been held to be bad and is set aside, full back wages remain the natural corollary to the same. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 6 26. Petitioner further relies upon the judgment of Gowramma C. (Dead) by legal representatives vs. Manager (Personnel), HAL & Anr. (2022) 11 SCC 794, where in the Court held:- “The principle of „no work no pay‟ is not an absolute rule, it comes with the exception that if the employee is not at fault and is kept out of work because of employer‟s decision, he/she cannot be denied back wages. Such denial would be unfair to the employee.” 27. It is submitted that in spite of holding that the dismissal order was bad and not legal, the tribunal denied the fact of full back wages of the petitioner/employee for no fault on his part. Hence, this writ application. 28. Mr. Pal appearing for the respondent no. 2 herein being the establishment on filing written notes has argued:- “The award dated 25th January, 2023 of the Learned Central Government Industrial Tribunal, Asansol in which it has been directed to the company that the concerned workman be paid with 30% of his wages and the said award has been fully implemented by the management of the respondent No. 2 and a sum amounting to Rs. 10,99,082.74 as 30% of wages has already been deposited in the bank A/c of the concerned workman through RTGS.” 29. It is further submitted that after receiving the awarded amount in pursuance of the award dated 25th January, 2023, the concerned workman is estopped from claiming further by filing a writ petition. Accepting part of an award constitutes a voluntary acceptance of the decision which presents a party from later repudiating the unfavourable 7 parts of the same award. Doctrine of estoppel or Doctrine of and Reprobate is applicable in the instant case. One cannot accept the benefits of an award while simultaneously challenging the parts he dislikes. Once a party receives payment in terms of an award, it is legally assumed they have accepted the award in its entirety. The respondent relies upon the judgment in Tushar Kanti Roy vs. Eighth Industrial Tribunal, Kolkata reported in 2013 (1) CHN (CAL) 504, where the petitioner accepted the awarded compensation before filing the writ petition, which the Court held that the writ petition was not maintainable. 30. It is thus stated by Mr. Pal, that once a party accepts that benefits of an award, he cannot subsequently contest its legality. Thus, the writ petition is not maintainable. 31. In reply the petitioner has placed a letter dated 05.02.2024 sent by him by registered post to the establishment, wherein it is also stated:- “……that a cheque was deposited of Rs. 1099082.79 in my S.B.I Account Chirkunda on 02.02.2024. 1 received deposited amount of Rs. 1099082.79 in cheque at S.B.I Chirkunda without prejudice……” 32. This answers the point agitated by the establishment/company/respondent no. 2 on this issue. 33. Vide the impugned award passed by the learned tribunal, the three cases which had earlier been decided on 02.12.2009, the predecessor in office of the present presiding officer held:- 8 “……..the action of the Management of M/s. BCCL was considered improper and illegal and that the transfer of the workman, altering the condition of service during pendency of the Industrial Dispute was held to be a contravention of provisions under section 33(1) of the Industrial Dispute Act, 1947. It was held that the order of dismissal of the workman w.e.f. 16.01.2004 was not sustainable and was set aside and it was held that the Application bearing No. 01 of 2004 filed by the Employer Company for post facto approval of order of dismissal was not sustainable. Relief was provided to the workman by way of an order of reinstatement in service and payment of full back wages………” 34. The impugned order dated 02.12.2009 passed by the earlier presiding officer, in the aforesaid three (3) cases, was assailed by M/s. Bharat Coking Coal Limited through the General Manager, Chanch Victoria Area, in Writ petition No. 11852 (W) of 2010 Hon'ble Single Bench of High Court at Calcutta disposed of the Writ application on 24.04.2019 observing as follows: "This Court finds that the Tribunal has found finding of intentional victimization of the workman by the writ petitioner, in transferring him and forcing him to perform works of a difficult nature, without any evidence oral or documentary being led in this regard by either side. This Court, therefore, has no hesitation to hold that a large number of findings of the Tribunal against the Industry are based on conjecture and surmise. In facts of the case, the parties ought to have been allowed to lead evidence in the matter and it is only after a trial on evidence that the Tribunal should have proceeded to come to any legitimate finding with regard to either any act or omission on the part of the Industry or the Workman. In those circumstances, the impugned order shall stand set aside." 9 35. The three (3) proceedings were remanded to the Tribunal for adjudication afresh. The Tribunal was directed to frame issues in all three cases and parties were allowed to lead evidence both oral and documentary before the Tribunal. It has been observed by the Hon'ble High Court that the matter shall thereafter be dealt with suitably by the Tribunal in accordance with the provisions of Section 11 of the Industrial Dispute Act, 1947 and that the applications to be disposed of within a period of three (3) months from the date of communication of the order. 36. The learned tribunal framed separate issues in the 3 (three) cases, as follows:- Complain No. 03 of 2002 : Issue (i): Whether the order of transfer of the workman from the Dahibari Colliery of M/s Bharat Coking Coal Limited to Basantimata Colliery of M/s Bharat Coking Coal Limited by Order DCPM/XII/03/A- 2/2002/1675 dated 12.09.2002 during pendency of the Reference Case 44 of 1999 before CGIT, Asansol is justified and legally tenable and justified. Application No. 01 of 2004: Issue (ii) : Whether the Award of dismissal of the workman bearing Ref. No. DB:XII:Agent:Dismissal:04:44 dated 09/16.01.2004 and the punishment awarded to him by the Management is justified, proportionate and in accordance with the gravity of the alleged misconduct? If so, whether the action taken by the Management may be approved? 10 Complain No. 01 of 2004 : Issue (iii): Whether the order dated 09/19.01.2004 for dismissal of the workman passed by the Management of M/s. BCCL is liable to be quashed / set aside? 37. The learned tribunal on taking evidence both oral and documentary on consideration of the materials on record held:- i. Having considered the rival contentions and traversing the evidence adduced by the workman as well as the Award passed in Reference No. 44 of 1999 dated 16.02.2017 for regularization to the post of Lamp Issue Clerk, Clerical Grade -III, it appears to me that the issue of regularisation has been set at rest in Writ petition No. 25941 (W) of 2017. In Award dated 16.02.2017 the Management of Victoria West Colliery of M/s. BCCL was directed to regularise Balmukund Sharma, Fitter Apprentice as Lamp Issue Clerk Clerical Grade-III w.e.f. 03.01.1996. This order has remained un-interfered in Writ petition No. 25941 (W) of 2017 disposed of by the Hon'ble High Court at Calcutta on 11.06.2018. ii. From the attending facts and admitted position, I have no hesitation to hold that at the time of issuance of the order of transfer on 12.09.2002, Balmukund Sharma's right to the post of Lamp Issue Clerk was not formally approved by the Management and his claim to be treated in the higher post did not accrue in his favour. It is a fundamental duty of a workman to obey and carry out the orders of higher Authority, who control function of the industry. If the 11 workman unilaterally seeks to take his own decision in the matter of his functioning in the industrial establishment, he would only create disharmony, amounting to his misconduct. iii. In view of the above discussion and findings, I hold that the Management of Employer Company has not violated the provisions of section 33 (1) of the Industrial Disputes Act, 1947 by passing the Order of Transfer dated 12.09.2002 in respect of Balmukund Sharma during pendency of the Industrial Dispute in Reference case no. 44 of 1999. Therefore, Complaint case no. 03 of 2002 under section 33 A of the Industrial Disputes Act, 1947 is devoid of merit and the same is dismissed on contest. Issue framed is thus decided against the workman. iv. Though the claim of the workman for his regularisation to the post of Lamp Issue Clerk in Clerical Grade -III has been decided in his favour, his unauthorized absence from duty on his own accord is unacceptable and unjustified. The workman was appropriately found guilty of misconduct for disobedience of the order of higher authority and violation of Standing Order. v. It appears to me that the Project Officer who passed the Order of Dismissal dated 09/16.01.2004 against the workman is not the appointing authority of the charged employee. Therefore, according to clause 27.2.6 of the Standing Order applicable to the workman, the Project Officer claiming to be the Disciplinary Authority is not the competent Authority to dismiss the workman. Though the provision 12 of section 33 (2) (b) of the Industrial Disputes Act, 1947 has been satisfied and an application has been made by the Project Officer, Dahibari Colliery, seeking approval of Management's decision of dismissal of Balmukund Sharma, same is found not tenable. The Letter of Appointment of the workman was issued by the General Manager, Chanch Victoria Area of M/s. BCCL (Ext.W-1) but the Order of dismissal has been issued by the Project Officer and not by the appointing authority. Therefore, the same cannot be approved. The issue is decided against the Management. vi. Misconduct and unauthorized absence from duty has been duly proved against the delinquent workman. Misconduct and insubordination of the workman writs large even in his reply to the second show cause notice. Instead of expressing his repentance for his adamant conduct his response is defiant to his higher authority. The workman only appears to be obsessed with the idea that he should have been regularised as a Lamp Issue Clerk and his transfer to this existing post is done to victimise him. The mitigating circumstance of his subsequent regularisation and aggravating circumstance of disobedience of order and absence from duty have been weighted but the misconduct tilts the balance against the workman and makes him liable to some punishment lesser than dismissal from service. vii. He did not carry out the order of higher Authority and refused to join his new place of posting on transfer assuming his rights. The charge framed against the workman has been duly proved and an 13 order of dismissal has been passed against him by the Project Officer, who is not the Appointing Authority. Hence, the same is unacceptable and disapproved. viii. In this case the order for regularisation was passed subsequent to the order of dismissal. In order to give effect to the order of regularisation passed on 16.02.2017 it would be presumed that the order of dismissal dated 09/16.01.2004 had no effect. ix. In light of my above findings, I hold that the order of dismissal of Balmukund Sharma from service passed by the Management of M/s. BCCL is set aside. This issue in Complaint No. 01 of 2004 is accordingly decided in favour of the workman, against the Management of M/s. BCCL. On evaluation of the entire evidence on record and the admitted facts, I hold that the workman having been found guilty of misconduct for disobedience and unauthorized absence from duty cannot reap the entire benefit of employment for the period he has not rendered any service to the Employer Company. Therefore, I hold that it would be just, proper and adequate to pay only 30% (thirty percent) of the wages due to Balmukund Sharma which would accrue in his favour due to his regularisation to the post of Lamp Issue Clerk, except the period treated as dies-non in the earlier Memorandum of Settlement dated 16.01.2001. The workman herein shall be entitled to his usual retiral dues, if any 30% (thirty percent) of wages as stated above and the retiral dues shall be paid within two months from the date of Notification of the Award. 14 38. Thus it appears that only 30% of back wages was granted as the tribunal found the workman to be guilty of mis-conduct for disobedience and unauthorized absence from duty. 39. The tribunal also held:- “In the case of Strawboard Manufacturing Co. vs. Gobind; 1962 SCR Supl. (3) 618, while dealing with the contention that if the employer dismisses or discharges a workman and then applies for approval of the action taken and the Tribunal refuses to approve the action, the workman would be left with no remedy as there is no provision for reinstatement in section 33(2), it is held that: "If the tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer." Since a subsequent order of regularisation has been passed, it is to be presumed that the regularisation will have a cumulative effect and not for a brief period till the order of dismissal.” 40. Vide the impugned award the regularization of the workman has been allowed/directed and the dismissal order being held to be bad in law has been set aside on the ground that the dismissal order was passed by an authority who was not empowered to do so. 41. The tribunal also held as follows:- In view of the above discussion and findings, I hold that the Management of Employer Company has not violated the provisions of section 33 (1) of the Industrial Disputes Act, 1947 by passing the Order of Transfer dated 12.09.2002 in respect of Balmukund Sharma during pendency of the Industrial Dispute in Reference case no. 15 44 of 1999. Therefore, the Complaint case no. 03 of 2002 under section 33 A of the Industrial Disputes Act, 1947 is devoid of merit and the same is dismissed on contest. Issue framed is thus decided against the workman. 42. Section 33(1) of the Industrial Dispute Act, 1947 lays down:- “33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.-(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before [an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall,- (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.” 43. In the present case, the petitioners specific case in the reference, was to be regularized in the post of „lamp issue clerk‟ where he was allowed to perform duty from 03.01.1996 to 29.12.1997 and was issued certificates and letters of authorization for performing the work of lamp issue clerk. The order of regularization was w.e.f. 03.01.1996. 44. Admittedly, the reference being 44 of 1999 was pending on the date of transfer on 12.09.2002 when he was again posted as a fitter apprentice (lower post) and he was also released from his then present post. 16 45. Though order of transfer is part of service condition, in this case, when the petitioner was claiming regularization to a higher post (allowed) where he was working, he was transferred to a post lower in rank during pendency of a reference and as such the condition of service connected with the dispute was changed/altered to the prejudice of the workman during pendency of the proceeding in such dispute (Section 33(1)(a) of the Act). 46. Thus in view of the ingredients of Section 33(1)(a) of Act being present, Section 33(2)(b) of the Act will not apply in this case. 47. The order of transfer was thus bad, in view of the discussion above, more so, when regularization to the higher post has been upheld by the tribunal. 48. Thus the findings of the tribunal that the transfer order during pendency of reference being valid, is based on erroneous interpretation of the relevant provisions of the Act and is thus set aside. As such the tribunals findings that the resultant misconduct on the part of the workmen deserved some lessor punishment then dismissal, also being erroneous are set aside. 49. In Dinesh Chandra Sharma Dead Through Lrs. Vs Bhartiya Pryatan Vikas Nigam Limited & Anr., in Civil Appeal no. ………. of 2025 (@ SLP (Civil) No.8180 of 2020), decided on 15 December, 2025, the Supreme Court held:- “11. We have considered the rival submissions and have perused the materials on record. In Deepali Gundu (supra), the judgment relied by the High Court, this Court, in paragraph 22, had observed as follows: 17 “22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injuries suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter‟s source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/ quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/ her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” 12. Even in paragraph 38.1 of the said judgment, this Court had observed “in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.” In paragraph 38.3, though this Court observed that “ordinarily, an employee or workman whose 18 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 lessor wages”, at the same time, it was also observed that “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”. The Court thereafter laid down the rationale for its view by observing: “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 averment 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”. 13. No doubt the observations contained in paragraph 38.3 of the judgment in Deepali Gundu (supra) creates an impression that, unless and until there is a clear stand by the workman that he was not gainfully employed, the burden would not shift on the employer to prove that he was gainfully employed, the use of expression “ordinarily” in paragraph 38.3 of the judgment would make it clear that this is not an inviolable rule and, therefore, each case would have to be decided on its own fact.” 50. In Maharashtra State Road Transport Corporation vs Mahadeo Krishna Naik, in Civil Appeal No. 13834 of 2024, decided on 14th February, 2025, the Supreme Court held:- “41. Close on the heels of Hindustan Tin Works (P) Ltd. (supra) came another seminal decision on entitlement to back wages by another three-Judge Bench in Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443. Hon‟ble O. Chinappa Reddy, J. (as His Lordship then was) in His Lordship‟s inimitable style remarked: 19 “6. … Semantic luxuries are misplaced in the interpretation of „bread and butter‟ statutes. Welfare statutes must, of necessity receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the court is not to make inroads by making etymological excursions. „Void ab initio‟, „invalid and inoperative‟ or call it what you will, the workmen and the employer are primarily concerned with the consequence of striking down the order of termination of the services of the workmen. Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-à-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders. The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted.” 20 (emphasis supplied) 42. There have been decisions of this Court rendered thereafter where a shift in approach on awarding full back wages is clearly discernible. However, a coordinate bench of this Court in Deepali Gundu Surwase (supra) considered a dozen precedents on award of back wages upon reinstatement (referred to in paragraphs 13 and 14). Speaking through Hon‟ble G. S. Singhvi, J. (as His Lordship then was), the legal position was neatly summed up in the following words: “22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter‟s source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. 21 The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” X x x 38. The propositions which can be culled out from the aforementioned judgments are: 38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2. 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. 38.3. 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 averment 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. 22 38.4. 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. 38.5. 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 victimising the employee or workman, then the court or tribunal concerned 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 keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a 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. 38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure 23 and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It 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 (P) Ltd. v. Employees [(1979) 2 SCC 80]. 38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal [(2007) 2 SCC 433] 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 [Hindustan Tin Works (P) Ltd. (supra) and Surendra Kumar Verma (supra)] and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.” (emphasis supplied) 43. We cannot but endorse our wholehearted concurrence with the views expressed in the aforesaid decisions. Taking a cue therefrom, it can safely be concluded that ordering back wages to be paid to a dismissed employee - upon his dismissal being set aside by a court of law – is not an automatic relief; grant of full or partial back wages has to be preceded by a minor fact-finding exercise by the industrial adjudicator/court seized of the proceedings. Such exercise would require the relevant industrial court or the jurisdictional high court or even this Court to ascertain whether in the interregnum, that is, between the dates of termination and proposed reinstatement, the employee has been gainfully employed. If the 24 employee admits of any gainful employment and gives particulars of the employment together with details of the emoluments received, or, if the employee asserts by pleading that he was not gainfully employed but the employer pleads and proves otherwise to the satisfaction of the court, the quantum of back wages that ought to be awarded on reinstatement is really in the realm of discretion of the court. Such discretion would generally necessitate bearing in mind two circumstances : the first is, the employee, because of the order terminating his service, could not work for a certain period under the employer and secondly, for his bare survival, he might not have had any option but to take up alternative employment. It is discernible from certain precedents, duly noticed in Deepali Gundu Surwase (supra), that the courts are loath to award back wages for the period when no work has been performed by such an employee. Such a view is no doubt debatable, having regard to the ratio decidendi in Hindustan Tin Works (P) Ltd. (supra), Surendra Kumar Verma (supra) and Deepali Gundu Surwase (supra). Though the latter decision was cited before the coordinate bench when it decided Phool Chand (supra), any thoughtful discussion appears to be absent. 44. There is one other aspect that would fall for consideration of the court. In certain decisions, noticed in Deepali Gundu Surwase (supra), it has been opined that whether or not an employee has been gainfully employed is within his special knowledge and having regard to Section 106 of the Evidence Act, 1872, the burden of proof is on him. What is required of an employee in such a case? He has to plead in his statement of claim or any subsequent pleading before the industrial tribunal/labour court that he has not been gainfully employed and that the award of reinstatement may also grant him back wages. If the employee pleads that he was not gainfully employed, he cannot possibly prove such negative fact by adducing positive evidence. In the absence of any contra- material on record, his version has to be accepted. 25 Reference in this connection may be made to Section 17-B of the Industrial Disputes Act, 1947, which confers a right on an employee to seek “full wages last drawn” from the employer while the challenge of the employer to an award directing reinstatement in a higher court remains pending. There too, what is required is a statement on affidavit regarding non-employment and with such statement on record, the ball is in the court of the employer to satisfy the court why relief under such section ought not to be granted by invoking the proviso to the section. We see no reason why a similar approach may not be adopted. After the employee pleads his non-employment and if the employer asserts that the employee was gainfully employed between the dates of termination and proposed reinstatement, the onus of proof would shift to the employer to prove such assertion having regard to the cardinal principle that „he who asserts must prove‟. Law, though, seems to be well settled that if the employer by reason of its illegal act deprives any of its employees from discharging his work and the termination is ultimately held to be bad in law, such employee has a legitimate and valid claim to be restored with all that he would have received but for being illegally kept away from work. This is based on the principle that although the employee was willing to perform work, it was the employer who did not accept work from him and, therefore, if the employer‟s action is held to be illegal and bad, such employer cannot escape from suffering the consequences. However, it is elementary but requires to be restated that while grant of full back wages is the normal rule, an exceptional case with sufficient proof has to be set up by the employer to escape the burden of bearing back wages.” 51. Thus in placing reliance the proposition in Deepali Gundu (Supra), Gowramma C. (dead) by legal representatives (Supra), Dinesh Chandra Sharma (Supra) and Maharashtra State Road Transport 26 Corporation (Supra), the impugned award is modified to the extent that the petitioner is entitled to full back wages on being reinstated with continuity of service, considering that 30% of back wages was granted on being satisfied that the petitioner was not gainfully employed. 52. The reduced back wages was for the reasons which have now been set aside. 53. WPA 1178 of 2024 is thus allowed. 54. Applications, if any, connected thereto stand disposed of consequently. 55. Interim order, if any, stands vacated. 56. Photostat certified copy of this Judgment, if applied for, be given to the parties on priority basis upon compliance of all formalities. (Shampa Dutt (Paul), J.)