Punjab-Haryana High Court
M/S Kumar Printers Pvt Ltd vs The Presiding Officer And Anr on 13 January, 2026
CWP-15185
15185-2015 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(233) CWP-15185-2015 (O&M)
Date of Decision : 13.01.2026
M/S Kumar Printers Pvt. Ltd. ...Petitioner
Versus
The Presiding Officer, Industrial Tribunal-cum
Tribunal cum-Labour Court-II, Gurgaon and
another ...Respondents
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. Sachin Mittal, Punjab and
Mr. Arnav Mittal, Advocate
petitioner.
for the non-applicant/petitioner.
Ms. Saloni Sharma, Advocate
for the applicant/respondent
respondent No.
No.2.
****
KULDEEP TIWARI,
TIWARI J.(ORAL)
CM-13661--CWP-2025 This is an application seeking vacation of stay stay, viz-a-viz viz awarding of full back wages, as granted by a Coordinate Bench, vide order dated 28.07.2015.
28.07.2015 Learned counsel for the contesting parties are ad idem that instead of pressing this application, they would address the arguments in the main case itself.
itself Accordingly, on their oral request, the main case is taken on board today itself.
itself Main case
1. The petitioner-Management, Management, by way of instant writ petition, cast under Article 226/227 of the Constitution of India, assails the award dated 05.05.2015 (Annexure P-10), whereby, the reference was answered in favour favo of the workman, workman thereby holding him entitled for reinstatement with 1 of 9 ::: Downloaded on - 24-01-2026 03:38:42 ::: CWP-15185 15185-2015 (O&M) -2- continuity of service and full back wages from the date of his termination, i.e. 30.12.2005..
2. To begin with, it is imperative to mention that at the time of issuance of notice of motion, learned earned counsel for the petitioner submitted that since there were no pleadings with regard to gainful employment of the workman, during the period of termination of his services, the learned Labo abour Court ought not to have granted full back wages to him. In this backdrop, the notice of motion was issued. And,, the operation of the impugned award was also ordered to be stayed, but with regard to the full back wages only.. It is informed by learned counsel for the petitioner that in pursuance of the order (supra),, the respondent-workman workman was duly reinstated by the petitioner-
petitioner Management anagement on 01.10.2018, 01.10.2018 and since then, he has been working.. In response, learned counsel for the respondent-workman respondent workman also admits the abovesaid stand set out on behalf of the petitioner-Management.
petitioner Management.
3. Learned counsel for the petitioner petitioner-Management Management submits that in view of the abovesaid conceded position, the only issue, which remains for determination by this Court, is qua the relief of full back wages. In this direction, he submits that the matter at hand is of abandonment of job by the workman himself and not of termination.. So much so, he nowhere pleaded in his demand notice that he was not gainfully employed employed, during the period of termination.
on. He further submits that the respondent-workman cannot be permitted to take an advantage of his own wrong wrong, since he voluntary ary abandoned ed the job, and therefore, he is not entitled for any amount as wages, wages for the period he had not no worked with the petitioner-Management.
anagement.
Furthermore it is urged that even before the learned Labour-cum-Conciliation Furthermore, Conciliation Officer,, the petitioner-Management petitioner opened an offer to the workman to join 2 of 9 ::: Downloaded on - 24-01-2026 03:38:43 ::: CWP-15185 15185-2015 (O&M) -3- the duty.. However, he chose not to accept the said offer, and thereafter, he even did not opt to appear before the learned Labour-cum-Conciliation Conciliation Officer. Not just that, even the amount of Rs.25,777/- was offered to him towards full and final settlement, settlement, but to no avail. While concluding his submissions, learned learned counsel for the petitioner places reliance upon a verdict rendered in Deepali Gundu Surwase versus Kranti Junior Adhyapak and others [2013 (10) SCC 324], 324] to assert that the Hon'ble Supreme Court has already laid down certain parameters for granting back wages, within which, the respondent-workman respondent does not fall, and thus, is not entitled for back wages.
4. Conversely, learned earned counsel for the rrespondent-workman workman vehemently submits that it is nowhere pleaded that respondent-workman was gainfully employed, employed during his termination period period.. Further, while referring to the averments set out in written statement statement, "he he is unemployed during the termination period and never employed anywhere else"
else", it is submitted that no evidence, whatsoever, whatsoever was led by thee Management to substantiate that the workman was, was indeed, gainfully employed. Sh She asserts that, it needs to be highlighted that the respondent-workman was subjected to an exhaustive cross-examination examination, which continued up to 9 P.M, however, nothing could be elicited to support the vague plea of gainful employment. She rests her arguments, while urging that, that even a specific affidavit was filed before this Court to the effect that the respondent-workman workman never remained under any gainful employment, employ during ng his termination period period, which, as a matter of record, has not been rebutted,, for obvious reason reasons.
5. This Court has heard the rival submissions advanced by the learned counsel for the parties, and has also gone through the record.
3 of 9
::: Downloaded on - 24-01-2026 03:38:43 :::
CWP-15185
15185-2015 (O&M) -4-
6. Before proceeding further with the matter in issue, it would be imperative to discern the concept of back wages. Thus, a reference to various precedents on the subject would be inevitable. In this regard, the Hon'ble Supreme Court, in its celebrated judgment judgment in M/s. Hindustan Tin Works Pvt.
Ltd. Vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd. and others, AIR 1979 Supreme Court 75, 75, has held that, if the workmen were always ready to work but they were kept away therefrom on account of invalid act of the th employer, there is no justification for not awarding them full back wages wages, which were legitimately due to them.
them. The relevant observations are extracted hereinbelow:
hereinbelow:-
"9. It is no more open to debate that in the field of industrial jurisprudence a declaration ration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt unt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to the work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility off paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which 4 of 9 ::: Downloaded on - 24-01-2026 03:38:43 ::: CWP-15185 15185-2015 (O&M) -5- would be due to him, the workman would be subjec subjected ted to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced iidleness.
dleness. That is the normal rule. Any other view would be a premium on the unwarranted litigating activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz ., to resist the workman's demand mand for revision of wages. the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followedwith full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputess Act, 1947 1947,, the State has endeavored to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood,, were kept away therefrom. On top of it the were forced to litigation upto the apex Court and now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workman were always willing to serve but if they rendered service they would legitimat legitimately ely be entitled to the wages for the same. If the workman were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately du duee to them. A Division Bench of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kamdar Mandal (1971) (1), Lab LJ 508 and a Division Bench of the Allahabad High Court in Postal Seals Industrial Co Co-operative operative Society Ltd. v. Labour Court, Lucknow(1971] 1 Lab LJ 327, have taken this view and we are of the opinion that the view taken therein is correct."
7. The Hon'ble Supreme Court again examined the issue in question in Deepali Gundu Surwase (supra).
(supra While hile following the ratio laid down in 5 of 9 ::: Downloaded on - 24-01-2026 03:38:43 ::: CWP-15185 15185-2015 (O&M) -6- Hindustan Tin Works (supra), it was held that iin n cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. While adjudicating the issue of back wages, the Court may take into consideration the length of service of the employee/workman, nature of misconduct, if any, found proved against him, him the financial condition of the employer, and similar other factors. Further, the t Courts/Adjudicating /Adjudicating Authorities must st always ke keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman, employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of th thee burden to pay to the employee/workman his dues in the form of full back wages. The relevant observations, in this regard, are extracted hereinafter:
hereinafter:-
"33. The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful rongful 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 nsideration 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 servi services ces 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. IIff 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 sservice.
ervice. This is so because it is settled law that the burden of proof of the existence of a particular fact 6 of 9 ::: Downloaded on - 24-01-2026 03:38:43 ::: CWP-15185 15185-2015 (O&M) -7- 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, erefore, 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 Labou Labourr Court/Industrial Tribunal exercises power under Section 11-A 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 gui guilty lty 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 st statutory atutory 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 fullback 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 7 of 9 ::: Downloaded on - 24-01-2026 03:38:43 ::: CWP-15185 15185-2015 (O&M) -8- 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 vis-à-vis 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 Wo Works rks 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 es 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".
8. Adverting to the facts of the present case case, the learned Industrial Tribunal rightly came to the conclusion that the workman did not abandon the service voluntarily, voluntar but, indeed, terminated by the Management Management. So far as the correspondence (Exhibits M8-M18), which were placed on record by the correspondences petitioner-Management, Management, to establish that it was a case of abandonment,, are concerned, the witness of the Management itself confessed that the same were ere received back in the company itself. Meaning thereby, the correspondences never reached the workman. Further,, the learned Tribunal unequivocally observed d that plea of the petitioner-Manag anagement regarding the offer being made to the workman to re-join re the duty, also carrie carried no weight, as no such offer was ever made before the learned Labo Labour-cum-Conciliation Officer.
fficer. In this regard, the learned Labour-cum-Conciliation Conciliation Officer specifically prepared 8 of 9 ::: Downloaded on - 24-01-2026 03:38:43 ::: CWP-15185 15185-2015 (O&M) -9- a report in the negative.
negative Pertinently, if, for the sake of argument, it is assumed that the workman did not report on duty, even then, the petitioner-
petitioner Management failed to refer to any document/communication, which was written to him to join the duty or explain the reason for his absence. Nott only that, no enquiry was ever initiated, in this regard. In this view of the matter, this Court is also of the affirmed view that the matter at hand is an open and shut case that respondent-workman had not abandoned the job voluntarily, rather, he was thrown out of the service by the petitioner petitioner-Management.
9. On the anvil of the settled legal position of law,, as referred to above, when it is proved that the workman was wr wrongly ongly terminated by the petitioner-Management, Management, the relief of full back wages cannot be denied to him.
Suffice it to say, the parameters carved out in Deepali Gundu Surwase (supra),, squarely covers the case of the respondent respondent-workman.
10. In conspectus of the position sketched out above, this Court has no hesitation to conclude that the learned Industrial Tribunal committed no error, while passing the impugned award. Consequently, the instant writ petition, being bereft of any merit, is hereby reby dismissed.
(KULDEEP TIWARI) JUDGE January 13,, 2026 Manpreet/AK /AK Sharma Whether speaking/reasoned : Yes Whether reportable : Yes/No 9 of 9 ::: Downloaded on - 24-01-2026 03:38:43 :::