Punjab-Haryana High Court
Onkar Singh vs The Presiding Officer, Labour Court And ... on 16 March, 2026
CWP-13066
13066-2019 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(239) CWP-13066-2019
Date of Decision : 16.03.2026
Onkar Singh ...Petitioner
Versus
Presiding Officer, Labour Court and
Industrial Tribunal, U.T. Chandigarh and others ...Respondents
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. Amit Kaith, Advocate for the petitioner.
Mr. Kapil Bansal, DAG, Haryana.
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KULDEEP TIWARI,
TIWARI J. (ORAL)
1. Through the impugned award dated 13.12.2017 (Annexure P P--1), as passed by learned Industrial Tribunal concerned (respondent No.1), the petitioner/workman, was granted the relief of reinstatement with continuity of service and 30% back wages.
2. The petitioner/workman, challenged the legality of the award (supra), ), to the extent of not granting 100% back wages. Learned counsel for the petitioner submits that services of the petitioner/workman was erroneously terminated, and there is a positive finding in this regard that there is non-compliance compliance of Section 25 (F) of the Industrial Disputes Act, 1947 (for short 'the ID Act').
Act'). He further submits that the petitioner/workman, was not gainfully employed during his termination period till his reinstatement, and therefore, he is entitled for 100% back wages wages.
3. Further, reliance has also been placed by learned counsel for the petitioner on the judgment rendered by Hon'ble Supreme Court in 'Deepali 1 of 11 ::: Downloaded on - 18-03-2026 23:59:16 ::: CWP-13066 13066-2019 2 Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others, 2013 (10) SCC 324, 324 and submitted th that at the petitioner/workman, is entitled for 100% back wages.
4. Per contra learned counsel for the State, has strongly opposed the submissions advanced on behalf of the petitioner/workman. He apprises this Court that the State, has already complied with the award, as the petitioner/workman, was reinstated into the service, and he joined on 31.12.2018.. Thereafter, the petitioner/workman, absented himself w.e.f.
04.05.2020,, and he joined back on 29.10.2020 for a short period, and thereafter, he never joined the services again. Learned counsel for the State submits that the petitioner/workman was joining the duty, as per his own whims and fancies.
5. Learned counsel for the State, while joining the issue on merits, submits that the petitioner/workman was working on the post of Junior Programmer, w.e.f. 11.09.2001 and continued upto 08.04.2006. He submitted that the petitioner/workman was appointed on a contractual basis, and his contract was renewed from time to time, as per requirement of Junior Programmer, in Chandigarh Depot, Depot, and he was lastly appointed on contractual basis, vide order dated 02.03.2006, for the period from 05.12.2005 to 03.03.2006,, on on a consolidated wages @ Rs.3,000/ Rs.3,000/- per month.
6. While referring to terms and conditions of contractual appointment, it is submitted that services of the workman can be terminated without prior notice, or assigning any reason reason. He also submits that it is the petitioner/workman, who himself abandoned the job, and never joined the duty back. Finally, he submits that considering the nature of the job, and the manner in which, the petitioner remained absented, coupled with the other 2 of 11 ::: Downloaded on - 18-03-2026 23:59:16 ::: CWP-13066 13066-2019 3 relevant factors, the petitioner/workman, petitioner/workman, was rightly granted 30% back wages.
He apprises this Court that the petitioner/workman, was interested only in getting the financial benefits, and never wanted to serve the respondent/Management.
7. This Court has considered the submissions, as made by learned counsels for the parties concerned.
8. Before proceeding further, let us have a glimpse upon some of the guiding legal principles, principles as laid down by Hon'ble Supreme Court.
9. The Hon'ble Supreme Court in 'U.P.S.R.T.C. Vs.. Mitthu Singh', Singh 2006 (7) SCC 180, 180 has held that there cannot be any thumb rule in every case, where order of reinstatement is passed that the employee is entitled to full back wages:-
wages:
"10. In General Manager, Haryana Roadways v. Rudhan Singh,2005 (3) SCT 559: 2005 (5) SCC 591 591,, this Court held that there is no rule of thumb that in each and every case, where a finding is recorded by Court or Tribunal that the order of termination of service was illegal that an employee is entitled to full back wages. A host of factors must be taken aken into account.
The Court stated:
"There There is no rule of thumb that in every case where the Industrial Tribunal gives a findings that the termination of service was in violation of Section 25- 25 F of the Act, entire back wages should be awarded. A host of actors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the 3 of 11 ::: Downloaded on - 18-03-2026 23:59:16 ::: CWP-13066 13066-2019 4 like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the th qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the he date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared mpared to short or intermittent dailywage employment though it may be ffor or 240 days in a calendar year."
10. Again, in Allahabad Jal Sansthan v. Daya Shankar Rai, 2005 (2) SCT 699: 2005 (5) SCC 124, 124 after considering the relevant cases on the point, the Court stated:
"We We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to bee realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which pr prevailed evailed many 4 of 11 ::: Downloaded on - 18-03-2026 23:59:16 ::: CWP-13066 13066-2019 5 years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at.
at."
11. Recently, in U.P.S.R.T.C. Ltd. v. Sarada Prasad Misra, 2006 (2) SCT 626 (SC): 2006 (4) SCC 733: JT 2006 (5) SC 114 114, one of us (C.K. Thakker, J.) had an occasion to consider a similar issue. Referring to earlier case--law, it was observed:
"From the above cases, iitt is clear that no precise formula can be adopted nor 'cast iron rule' can be laid down as to when payment of full back wages should be allowed by the court or Tribunal. It depends upon the facts and circumstances of each case. The approach of the Court/Tribunal ibunal should not be rigid or mechanical but flexible and realistic. The Court or Tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion tthat hat the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatment instatment in service. While considering and determining the second question the Court or Tribunal would consider all relevant circumstances referred to above and keeping in view the principle of justice, equity and good conscience, should pass an appropri appropriate ate order."
Thus, entitlement of a workman to get reinstatement does not necessarily result in payment of back wages which would be independent of reinstatement. While dealing with the prayer of back wages, factual scenario and the principles of justice, equality and good conscience have to be kept in view by an appropriate Court/Tribunal."
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12. It is imperative to take note of essential facts that the petitioner/workman, was appointed on the post of Junior Programmer, w.e.f.
11.09.2001 and continued upto 08.04.2006,, and his services were erroneously terminated by the respondent/Management, respondent/Management, on account of infraction of Section 25 (F) of the ID Act.
Act In this regard, the Hon'ble Supreme Court, in its celebrated 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 employer, there is no justification for not awarding them full back wages, which were legitimately due to 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 can be given that the termination off 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 in this branch of law. The relief of rreinstatement einstatement 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 of paying the wages which the workman has been een 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 6 of 11 ::: Downloaded on - 18-03-2026 23:59:16 ::: CWP-13066 13066-2019 7 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 li litigation tigation 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 would be due to him, the workman would be subjected to a sort of penalty for no fault of his is and it is wholly undeserved. Ordinarily, therefore, 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 idleness. That is the normal rule. Any otherr 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 for revision of wages. the terminatio terminationn may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with 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 Disputes Act, 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 they 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 legitimately be entitled to the wages for the sam same.
e. If the workman were always ready to work but they were kept 7 of 11 ::: Downloaded on - 18-03-2026 23:59:16 ::: CWP-13066 13066-2019 8 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 due to them. A Division Bench of the Gujarat at 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-operative operative Society Ltd. v. Labour Court, Court Lucknow(1971] 1 Lab LJ 327 327,, have taken this view and we are of the opinion that the view taken therein is correct."
13. The Hon'ble Supreme Court again examined the issue in question in Deepali Gundu Surwase (supra). While hile following the ratio laid down in 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 w
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 the length of service 8 of 11 ::: Downloaded on - 18-03-2026 23:59:16 ::: CWP-13066 13066-2019 9 of the employee/workman, the nature of misconduct, if any, found proved againstt the employee/workman, the financial condition of the employer and similar other factors.
iii) 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 stat statement ement 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 nd prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11 11-A A of the Industrial Disputes Act, 1947 and finds th 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 thee 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 forr 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 statutory 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 9 of 11 ::: Downloaded on - 18-03-2026 23:59:16 ::: CWP-13066 13066-2019 10 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 Labourr 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 disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workm workman an 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 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, refore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra)."
(supra).
vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement einstatement 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 and cannot be treated as 10 of 11 ::: Downloaded on - 18-03-2026 23:59:16 ::: CWP-13066 13066-2019 11 good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.
14. Moving ahead with the deliberations on the issue, this Court is of the considered opinion that all the relevant factors are required to be taken into consideration before adjudicating the issue of back wages.
15. It is a case where the petitioner/workman, was appointed on a contractual basis, to the post of Junior Programmer on 11.09.2001,, and he worked upto 08.04.2006.. The other supervening factors, as narrated by learned State counsel are also of relevance, to the effect, that the petitioner/workman, was allowed to join the duty, in view of the award (supra), and was reinstated into the service service. He joined on 31.12.201 31.12.2018, and thereafter, hereafter, the petitioner/workman, absented himself w.e.f. 04.05.2020 04.05.2020. He again joined back on 29.10.2020, 29.10.2020 and after a short period of time,, he again voluntarily abandoned the job, job, and never joined the duty back. It seems that the petitioner/workma was interested only in getting the financial benefits, and petitioner/workman, never wanted to serve the respondent/Management.
16. Considering the totality of the facts and circumstances of the instant case, this Court does not find any reason to interfere with the well reasoned award, as passed by learned Tribunal concerned, and the same is upheld.
17. Consequently, finding no merit, the instant writ petition is dismissed.
(KULDEEP TIWARI)
JUDGE
March 16, 2026
202
Manpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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