1 CGHC010306062023 2026:CGHC:31321 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPL No. 137 of 2023 Laxminarayan Thakur S/o Santuram Thakur Aged About 36 Years R/o Ward 15, Sikolabhata, Tahsil And District Durg (C.G.). ... Petitioner versus 1-Secretary and General Manager Chhattisgarh State Warehousing Corporation Ring Road, Telibandha, Udyog Bhawan, 3rd Floor, Raipur, District Raipur (C.G.) New Address Village Jhanjh, Sector 24, Atal Nagar, New Raipur (C.G.) 2- Manager Chhattisgarh State Warehousing Corporation Borai, District : Durg, Chhattisgarh. ... Respondent(s) For Petitioner : Mr. Sudeep Johri, Advocate For Respondent(s) : Mr. Anuroop Panda, Advocate Hon’ble Shri Justice Rakesh Mohan Pandey Order on Board 22/07/2026 1. The petitioner has filed this petition seeking the following relief(s):- “10.1. That the Hon'ble court may kind enough to call the record of the petitioner. 10.2. That the Hon'ble Court may be kind enough to quash the impugned award Annexure P-1 to the extent of denying back wages and may be kind enough to modified the award by an appropriate Writ/ order or direction to the extent of granting full / 50% back wages and to command the respondents to pay the petitioner in the interest of justice. 2 10.3. That the Hon'ble Court may be kind enough to pass any writ/order or direction as deemed fit in the circumstances of the case.” 2. Facts in brief are that the Petitioner was appointed on the post of Peon (Chowkidar) on daily wages on 03.03.2012 and was continuously working against a permanent post. His services were dispensed with by an oral order dated 01.10.2016, without following any procedure prescribed under the Industrial Disputes Act, 1947 ("the Act, 1947"). Aggrieved by the said termination, the Petitioner raised an industrial dispute before the learned Labour Court. After affording opportunity to both parties to lead evidence, the learned Labour Court, by a reasoned award, held that the termination of the Petitioner illegal and not in conformity with the procedure prescribed under the Act, 1947. Accordingly, the learned Labour Court quashed the termination order and directed reinstatement of the Petitioner, without back wages. Being aggrieved by the denial of back wages, the Petitioner has preferred the present Writ Petition before this Court. 3. Mr. Johri, learned counsel appearing for the Petitioner would submit as under:- (i) The learned Labour Court committed error of law while denying the back wages. The entire records pertaining to the Petitioner's appointment, salary and attendance were in the exclusive possession of the Respondent authorities. The Respondent authorities failed to produce the same before the learned Labour Court, which is in contravention to the decision rendered by the Hon'ble Supreme Court in the matter of R.M. Yellatti v. Assistant Executive Engineer, (2006) 1 SCC 106. The learned Labour Court also failed to draw an adverse inference against the Respondent for non-production of such records. 3 (ii) The Respondent's own witness, Sushant Honpakhare (Branch Manager), in his cross-examination admitted that the termination was pursuant to an order of the Head Office dated 26.06.2016, and further admitted that no prior notice of one month was given to the Petitioner as mandated under Section 25-F of the Act, 1947. The learned Labour Court failed to consider these admissions while denying back wages. (iii) The learned Labour Court did not properly evaluate the cross-examination of the Respondent's witness, who also admitted the length of service of the Petitioner as per the Respondent's own records. (iv) He has placed reliance in the matter of Bank of Baroda v. Ghemarbhai Harjibhai Rabri, reported in 2005 Labour Industrial Cases 2279 and submitted that when termination is found to be illegal, the employee is entitled to full back wages. Further reliance has been placed in the matter of Allahabad Jal Sansthan v. Daya Shankar Rai & Anr. Reported in AIR 2005 SC 2372, wherein the Hon'ble Supreme Court held that an employee is entitled to at least 50% back wages even if no such pleadings were made in the statement of claim or in evidence; thus, he would pray that the impugned award may be modified. 4. Learned counsel appearing for the Respondent would submit as under: (i) Though the Petitioner claimed reinstatement as well as back wages in the statement of claim and pleaded that he remained jobless after termination, he failed to adduce any evidence in support of the said plea. (ii) The Petitioner was appointed as a Peon (Chowkidar) on need basis, without any advertisement or requisition from the 4 Employment Exchange, and had worked for short and intermittent periods; therefore, he is not entitled to back wages. (iii) The direction of reinstatement by the learned Labour Court does not automatically entitle the Petitioner to back wages. Further, back wages cannot be claimed as a matter of right. (iv) The initial burden lies on the workman to plead and prove that he was not gainfully employed after dismissal. Having failed to discharge this burden, the denial of back wages by the learned Labour Court is justified and calls for no interference. (v) In support of his contentions, learned counsel for the Respondent placed reliance upon the judgment of the Hon'ble Supreme Court in the matter of Rajasthan State Road Transport Corporation, Jaipur v. Phool Chand (dead) Through Legal Representatives, (2018) 18 SCC 299. 5. I have heard learned counsel for the parties and perused the record. 6. In the matter of Phool Chand (dead) through legal representatives (supra), the Hon’ble Supreme Court held that back wages cannot be awarded by the Court as a matter of right consequent upon setting aside an order of dismissal/termination. It is necessary for the workman in such a case to plead and prove by leading evidence that after his dismissal from service, he was not gainfully employed anywhere and had no means to maintain himself or his family. The employer is also entitled to prove otherwise. The relevant paragraphs no.11 to 13 are reproduced as under:- “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 5 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 back wages depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions as to how the back wages are required to be decided, what are the factors to be taken into consideration while 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 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., 14 (2009) 15 SCC 327; and Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors., (2013) 10 SCC 324.” 7. In this petition, though the petitioner pleaded that he was not gainfully employed after termination of his services, but he failed to lead evidence to prove this fact. As there was no evidence with regard to gainful employment, there was no occasion for the employer to lead contrary evidence. It is also noteworthy that the petitioner did not state 6 in his evidence that he was always willing to serve but were kept away by the employer. 8. In this case, the learned Labour Court, while denying back wages, assigned sufficient reasons and exercised its discretion. It is also a well- settled principle of law that a workman has no right to claim back wages as a matter of right. The Court should not grant back wages to the workman merely consequent upon setting aside the order of dismissal or termination. 9. Having considered the facts of the present case and the law laid down by the Hon’ble Supreme Court in the above-referred matters, I do not find any good ground to grant back wages to the petitioners. 10.Accordingly, this petition fails and is hereby dismissed. Sd/- Rakesh Mohan Pandey JUDGE Nadim