# State of U.P. & Anr v. Komal Yadav @ Ram Komal & Anr

- **Citation:** (2023) 3 ILRA 430
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-21
- **Case number:** Writ C No. 58897 of 2012
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-anr-v-komal-yadav-ram-komal-anr-49228
- **Pages:** 11

## Headnote

A. Labour Law - Constitution of India -
Article
226
-
Award
-
Scope
of
interference - Reference - Limitation,
how far come in the way thereof -
Workman' right to get adjudication - How
far liable to be protected - Held, a
workman
working
in
a
government
department if retiring from his services,
cannot be in a bargaining position -
Matter
if
remained
pending
with
Conciliation Officer and St. took its own
time in making reference, the workman
concerned
should
not
be
denied
adjudication
only
for
delay,
more
especially in the circumstances when no
time
limit
is
prescribed
for
making
reference - High Court denied to interfere
with
the
award
under
equitable
jurisdiction under Article 226. (Para 17)

B. Labour Law - Industrial Dispute Act,
1947
-
Sections
6N,
6P
&
6Q
-
Retrenchment - Award - ReinSt.ment
with backwages - Forest department -
Engagement of worker on daily wages -
Principle for payment of backwages -
Applicability - Held, in the department of
forest, there is a practice of engaging
people for the forest work on a daily wage
basis - Where neither the department
could
dispute
the
working
of
the
petitioner with it, nor could produce any
witness to dispute the testimony of a
fellow workman who had deposed in his
favour, the approach of the department
was rightly held to be unLawful in firing
the
workman
suddenly
on
one
fine
morning - High Court held interest part of
award upon backwages unsustainable.
(Para 18, 22 and 25)

Writ petition partly allowed . (E-1)

List of Cases cited :-
3 All. State of U.P. & Anr. Vs. Komal Yadav @ Ram Komal & Anr.
431

## Text

430 INDIAN LAW REPORTS ALLAHABAD SERIES
brought on record in the counter affidavit
filed by the State-respondent. The only
stand taken is based on a bald statement
that he is in possession of the surplus land.
But, petitioner is silent as to whether any
objection at any point of time on being
dispossessed, the land owner had filed
objection/protest before the authorities.
Neither, it is the case of the petitioner in the
memo of appeal filed in 1999, that
petitioner is in possession of the surplus
land, nor, that his predecessor in interest
had not voluntary surrendered the surplus
vacant land or had protested the State
action.

20. Further, the name of Development
Authority, after possession was duly
mutated in the revenue record as per the
case setup by the petitioner. The issue of
possession/dispossession being a question
of fact cannot be raised belatedly after 13
years in writ jurisdiction.

21. In view thereof, the writ petition
being devoid of merit is, accordingly,
dismissed.

22. No cost.
----------
(2023) 3 ILRA 430
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2022
BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ C No. 58897 of 2012

State of U.P. & Anr. ...Petitioners
Versus
Komal Yadav @ Ram Komal & Anr.
 ...Respondents

Counsel for the Petitioners:
Sri Anoop Kumar Srivastava, Sri Amit
Manohar (Addl. C.S.C.)

Counsel for the Respondents:
Sri Chandra Bhan Gupta, S.C., Sri Shyam
Narain, Sri Sudhanshu Narain

A. Labour Law - Constitution of India -
Article
226
-
Award
-
Scope
of
interference - Reference - Limitation,
how far come in the way thereof -
Workman' right to get adjudication - How
far liable to be protected - Held, a
workman
working
in
a
government
department if retiring from his services,
cannot be in a bargaining position -
Matter
if
remained
pending
with
Conciliation Officer and St. took its own
time in making reference, the workman
concerned
should
not
be
denied
adjudication
only
for
delay,
more
especially in the circumstances when no
time
limit
is
prescribed
for
making
reference - High Court denied to interfere
with
the
award
under
equitable
jurisdiction under Article 226. (Para 17)

B. Labour Law - Industrial Dispute Act,
1947
-
Sections
6N,
6P
&
6Q
-
Retrenchment - Award - ReinSt.ment
with backwages - Forest department -
Engagement of worker on daily wages -
Principle for payment of backwages -
Applicability - Held, in the department of
forest, there is a practice of engaging
people for the forest work on a daily wage
basis - Where neither the department
could
dispute
the
working
of
the
petitioner with it, nor could produce any
witness to dispute the testimony of a
fellow workman who had deposed in his
favour, the approach of the department
was rightly held to be unLawful in firing
the
workman
suddenly
on
one
fine
morning - High Court held interest part of
award upon backwages unsustainable.
(Para 18, 22 and 25)

Writ petition partly allowed . (E-1)

List of Cases cited :-
3 All. State of U.P. & Anr. Vs. Komal Yadav @ Ram Komal & Anr.
431
1. St. of Uttarakhand & anr Vs Raj Kumar; 2019
(14) SCC 353

2. Chief Engineer, Ranjeet Sagar Dam & anr. Vs
Sham Lal 2006 (9) SCC 124

3. St. of U. P.& ors. Vs Ram Swarup & anr. 2003
(99) FLR 665

4. Civil Misc. Writ Petition No. 28491 of 2006;
St. of U. P. & ors. Vs Shri Prahalad & ors.

5. Deepali Gundu Surwase Vs Kranti Junior
Adhyapak; 2013 (139) FLR 541

6. Standard Chartered Bank Vs Presiding Officer,
Central Government Industrial Tribunal & ors.;
2014 LawSuit (All) 3872

7. Special Leave Petition No.32554 of 2018;
Allahabad Bank & ors. Vs Avtar Bhushan
Bhartiya decided on 22.04.2022

8. Special Leave Petition (Civil) Diary No. 5426
of 2020; Abhimanyu & ors. Vs The Principal
Secretary St. of U.P. & anr.

9. Deepali Gundu Surwase Vs Kranti Junior
Adhyapak Mahavidyalaya (D.Ed.) & ors.; 2013
(10) SCC 324

10. Civil Appeal no. 6890 of 2022; Jeetubha
Khansangji Jadeja Vs Kutchh District Panchayat
decided by Supreme Court on 23.09.2022

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Amit Manohar, learned
Additional Chief Standing Counsel assisted
by
Sri
R.M.
Vishwakarma,
learned
Standing Counsel for the petitioners and Sri
Sudhanshu
Narain,
learned
Advocate
appearing for the respondent No.1.

2. The petitioner no.1 is a Forest
Department of the Government of Uttar
Pradesh and petitioner no.2 is the Forest
Range Officer of the Sohagibarwa Range
(Shivpur), Maharajganj. The petitioners are
aggrieved against the award passed by the
Industrial
Tribunal
dated
04.11.2011
directing for reinstatement of respondent-
workman namely Komal Yadav @ Ram
Komal
(herein
after
referred
to
as
'workman') with backwages alongwith
interest at the rate of 9%.

3. Three-fold argument has been
advanced before the Court:-

(A) The reference was highly
barred by time as having been made after
almost
a
decade
of
the
alleged
retrenchment dated 09.08.1991 of the
workman;

(B) The department being a
Forest Department and having no history of
unfair labour practice, could not have been
directed to reinstate the workman and the
one time compensation should have been
ordered instead; and

(C) The Tribunal was not justified
in directing for payment of backwages
alongwith interest at the rate of 9% without
assigning any special reason so as to direct
for payment of interest.

4. The petitioner department has
argued that instead of reinstatement, it
could have been directed for payment of
compensation only. He has relied upon the
judgment
in
the
case
of
State
of
Uttarakhand & anr vs. Raj Kumar; 2019
(14) SCC 353.

5. Per contra, it is argued by the
learned
counsel
appearing
for
the
respondent-workman,
Mr.
Sudhanshu
Narain that mere delay in making reference
by the State Government would by itself
not be a ground to reject the reference as
barred by time, inasmuch as, the petitioner
was
pursuing
the
matter
with
the
department that was already busy in
absorption of certain daily rated workers
432 INDIAN LAW REPORTS ALLAHABAD SERIES
employed within a cut off date, inasmuch
as, matter was already engaging attention
of conciliation officer and even in the year
2000 he had reiterated his claim with the
department. It is argued that if State has
taken time in making a reference, the time
taken was in his control so he should not be
penalised for the same. He submits that
neither the petitioner, nor the State
Government can be said to be in any
manner responsible for any delay and
latches. In support of his argument, learned
Advocate has relied upon a judgment of the
Supreme Court in the case of Chief
Engineer, Ranjeet Sagar Dam & another
vs. Sham Lal 2006 (9) SCC 124.

6. Counsel for the contesting
respondent-workman has secondly argued
that the department has a history of hiring
labour and firing them at its sweet will and
this is the reason why for many decades the
department is faced with a large number of
litigations before the High Court wherein
ultimately
directions
were
issued
to
consider the absorption of such daily wage
workers/casual workers. He submits that
still a number of petitions are pending
where directions have been issued for
payment of minimum wages to such daily
rated workers who could not have been
absorbed in the regular cadre. In support of
his above argument, the respondentworkman has relied upon an order of High
Court in the case of State of Uttar Pradesh
& others vs. Ram Swarup & another 2003
(99) FLR 665 and State of Uttar Pradesh
& others vs. Shri Prahalad & others
passed in Civil Misc. Writ Petition
No.28491 of 2006. Counsel for the
respondent-workman has also argued that if
the workman had worked for 240 days, he
deserved to be reinstated but he had been
fired. Such an act on the part of the
department would certainly be in violation
of Sections 6N, 6P and 6Q of the Industrial
Disputes Act, 197 (in short 'the Act of
1947') and, therefore, such a workman
would deserve reinstatement.

7. The third argument advanced by
the learned counsel for the contesting
respondent-workman is that once the
termination of the workman was found to
be an illegal retrenchment, the workman
became entitle to not only reinstatement but
also backwages. He submits that the
Tribunal has been reasonable enough in
giving only 50% of the backwages with
interest and, therefore, the award passed by
the Tribunal cannot be faulted with in the
given facts and circumstances of the case of
the department in particular. In support of
his argument, learned Advocate has relied
upon the judgement of the Supreme Court
in the case of Deepali Gundu Surwase vs.
Kranti Junior Adhyapak; 2013 (139) FLR
541. He has also been relied upon by the
judgment of a co-ordinate bench of this
Court in the case of Standard Chartered
Bank vs. Presiding Officer, Central
Government Industrial Tribunal & others;
2014 LawSuit (All) 3872. He has also
relied upon a judgment of the Supreme
Court in the case of Allahabad Bank &
others
vs.
Avtar
Bhushan
Bhartiya
rendered
in
Special
Leave
Petition
No.32554 of 2018 on 22.04.2022 by which
the 50% backwages order passed by the
High Court was upheld.

8. Counsel for the respondentworkman has further placed a judgment in
the case of Abhimanyu & others vs. The
Principal Secretary State of UP & anr of
the same forest department passed in where
reinstatement with 50% of the backwages
was upheld by the High Court being
similarly circumstanced with such two
other workers of the same department
3 All. State of U.P. & Anr. Vs. Komal Yadav @ Ram Komal & Anr.
433
decided on 28.02.2018. The special leave
petition filed against the said judgment
being Special Leave Petition (Civil) Diary
No.5426 of 2020, was also dismissed.

9. Before dealing with the rival
submissions made on behalf of the
respective parties, it becomes imperative to
refer to the facts of the case in a nutshell.

10. The respondent-workman claimed
before the Tribunal to have been engaged
as a gate-man in the month of February,
1987 initially, in the Nichlaul Range of the
Forest Department of the then district of
Gorakhpur (now District Maharajganj).
Later
on,
he
was
transferred
to
Sohagibarwa Unit which was earlier part of
the Nichlaul Range but later on became an
independent range and the petitioner
discharged his duties at the barrier in the
capacity of a gate-man. It was claimed that
certain officials were got annoyed with him
as he demanded the prescribed payscale
and upon his insistence, he was suddenly
fired on 09.08.1991 orally by the officials
of the department and, therefore, he was
never
permitted
to
work.
So,
the
respondent-workman
claimed
to
have
worked with the department of forest as a
gate-man upon a barrier in the forest range
from February, 1987 to August, 1991 i.e.
more than 4 years regularly without even a
break of single day.

11. The department, on the contrary,
denied the claim of the respondent that he
was hired and then fired. There was no
record traceable with the department,
inasmuch as, the reference having been
made after more than 12 years of his
alleged retrenchment from employment, the
industrial dispute deserved to be rejected. It
was pleaded before the Tribunal that the
department
had
its
own
selection
committee and whenever the vacancy
arose, its due publication was made and a
person was employed through prescribed
selection process. The department also took
the plea before the Tribunal that the settled
law was that there would be no back door
entry in the employment as had been held
by the Supreme Court in number of
decisions
and,
thus,
the
department
submitted that the respondent-workman did
not deserve any relief.

12. The respondent-workman filed a
number of documents like demand letter
dated 06.04.2000 raised by him, the
registry receipts signed by him, the
certificate of working, the transfer order,
the register containing entry of the vehicles
that were checked at the barrier and the
copies of the attendance register maintained
since April, 1991. The workman deposed
before the Tribunal that he was appointed
on 02.02.1987 and that he worked at
Nichlaul Range since April, 1987. When he
was transferred to Sohagibarwa Range, he
used to check the vehicle. He deposed that
the work used to be done in three shifts and
was permitted to work only till 08.08.1991
i.e. a day before he was orally fired by the
officials of the department on 09.08.1991.
He claimed that he was not given any
employment letter and he was engaged for
Rs.299/- per month and later on it was
raised to Rs.750/- per month and that
amount he was getting at the time he was
fired from the department. One Jairam
Yadav also entered into witness-box on
behalf of the workman. This gentlemen was
working
as
Nikasi
Munshi
(Niryat
Muharrir) who later on retired. He deposed
that Komal Yadav had worked with him
and that Komal Yadav was engaged at
Nichlaul Range in February, 1987. He also
deposed that the duty of the gate-man at the
barrier was to lift the barrier when the
434 INDIAN LAW REPORTS ALLAHABAD SERIES
vehicle came to carry out checking and
then down the barrier after vehicle was
given passage. He further deposed that later
on he (workman) was transferred to
Sohagibarwa Range where he worked till
August, 1991 i.e. till the date when the
workman was fired. He deposed that the
duty used to be done in shifts and Komal
Yadav used to perform 12 hours duty in a
shift. He deposed that he was not taking
any attendance of Komal Yadav and it was
an official of the department who used to
take attendance.

13. From the petitioner-department's
side, One Vijaykant Pandey was produced
before the Tribunal as a witness who was
working in the Forest Department as Forest
Ranger. He deposed that there was a World
Bank Scheme to plant trees on the roadside,
on the station of the railways in the Gram
Samaj road and other public places and
since there was more workload with the
department, so in order to meet the
requirement and utilise the fund given by
the World Bank, that engagement used to
be done for plantation work. With the end
of the plantation work, the services of the
labourer would come to an end and no
labourer was employed on a permanent
basis. They were engaged on daily wage
basis and since the project of the world
bank came to an end in 1991. He
deposed that he was posted in Shivpur
Range on the post of Forest Officer since
the year 2005 and during the relevant
period 1987 to 1991, he was working in
Ballia range. He admitted documents of
list of daily rated workers of the range to
have been prepared by the department
but refused to recognise the respondentworkman. He admitted that since he was
not working in the range in question, he
could say nothing about the respondentworkman.

14. The Tribunal having appreciated
the documentary evidence brought on
record and the depositions made by the
witnesses of the parties, the register which
showed subsequent engagement of two
daily wage workers namely Rajaram and
Gaffar etc., came to conclude that the
depositions made by the workman and his
witnesses could not be rebutted by the
departmental witness, inasmuch as, the
documents revealed that the respondentworkman worked as daily rated employee
for 240 days with the department and the
officials of the department fired him
without giving him any notice in advance.
The Tribunal concluded that the respondent
having worked for more than 240 days, as
was reflected from the depositions made
and that could not be rebutted by the
departmental witness, so the inevitable
conclusion
was
that
the
respondentworkman was wholly illegally retrenched.
The Tribunal
concluded
that
if
the
workman was working in some project of
the World Bank, he ought to have been
posted on one place to do some plantation
work but the evidence demonstrated
otherwise as the workman worked at some
barrier in one place and then transferred to
some other place within the forest range.
The Tribunal, therefore, held that the
retrenchment of the workman was illegal in
violation of Section 6-N, 6-P and 6-Q of the
Act of 1947 and he having worked for
more than 240 days definitely deserved
notice before termination from service.
Thus,
the
oral
termination
of
the
respondent-workman was held null and
void and workman was directed to be
reinstated in service. Since, the respondentworkman worked for 240 days and
retrenchment was held illegal as null and
void in compliance of the statutory
provisions of the industrial laws, he was
held entitled to backwages also to the
3 All. State of U.P. & Anr. Vs. Komal Yadav @ Ram Komal & Anr.
435
extent of 50%. The Tribunal also directed
for payment of interest.

15. Having heard the learned counsel
for the respective parties, their submissions
raised across the bar and perusing the
award of the Tribunal, two issues needed to
be addressed:-

(i) Whether the reference was
highly belated one and deserved rejection?;
and

(ii)
Whether
payment
of
backwages with interest is justifiable.

16. The contention advanced by the
learned
counsel
appearing
for
the
petitioner-department that such a delayed
reference ought to have been rejected. In
my considered view, merely because there
was delay in making reference would not
by itself be a ground to reject the reference.
In the case of Chief Engineer Ranjeet
Sagar Dam (supra), the Supreme Court has
held that no universal formula can be laid
down to refuse the reference on the ground
of delay as there was no time limit
prescribed for the Government to exercise
power of making reference. The Court was
of the view that there must be some rational
basis upon which the power should be
exercised after lapse of such a period which
otherwise could be said to be sufficient
enough to hold the parties seeking for
reference, guilty of delay and latches.
While it is true that such a stale case cannot
be opened taking recourse to the powers of
the State Government to make a reference
but this will all depend upon the facts of the
case. Vide paragraphs 9 & 10, the Court
held thus:

9. So far as delay in seeking the
reference is concerned, no formula of
universal application can be laid down. It
would depend on facts of each individual
case.

10. However, certain observations
made by this Court need to be noted. In
Nedungadi Bank Ltd. vs. K.P. Madhavankutty
and Ors. (2000 (2) SCC 455) it was noted at
paragraph 6 as follows:

"6. Law does not prescribe any
time-limit for the appropriate Government to
exercise its powers under Section 10 of the
Act. It is not that this power can be exercised
at any point of time and to revive matters
which had since been settled. Power is to be
exercised reasonably and in a rational
manner. There appears to us to be no rational
basis on which the Central Government has
exercised powers in this case after a lapse of
about seven years of the order dismissing the
respondent from service. At the time reference
was made no industrial dispute existed or
could
be
even
said
to
have
been
apprehended. A dispute which is stale could
not be the subject-matter of reference under
Section 10 of the Act. As to when a dispute
can be said to be stale would depend on the
facts and circumstances of each case. When
the matter has become final, it appears to us
to be rather incongruous that the reference be
made under Section 10 of the Act in the
circumstances like the present one. In fact it
could be said that there was no dispute
pending at the time when the reference in
question was made. The only ground
advanced by the respondent was that two
other employees who were dismissed from
service
were
reinstated.
Under
what
circumstances they were dismissed and
subsequently
reinstated
is
nowhere
mentioned. Demand raised by the respondent
for raising an industrial dispute was ex-facie
bad and incompetent."

17. A workman working in a
government department if retiring from his
services, he cannot be in a bargaining
436 INDIAN LAW REPORTS ALLAHABAD SERIES
position. A poor daily rated worker is fired
suddenly in one fine morning can only
lament for his sorry tale for the treatment
given to him. Matter if remained pending
with Conciliation Officer and State took its
own time in making reference, the
workman concerned should not be denied
adjudication only for delay, more especially
in the circumstances when no time limit is
prescribed for making reference. In my
equitable jurisdiction under Article 226, I
do not intend to interfere with the award on
this ground and hence argument raised by
the petitioner is rejected.

18. Coming to the second aspect that
the Tribunal ought not to have directed for
reinstatement with backwages and interest
and should have ordered for payment of
one-time compensation as the department
does not have any history of unfair labour
practice, I find the present case is of the
Forest Department and it is an open secret
that in the department of forest, there is a
practice of engaging people for the forest
work on a daily wage basis. Thousands of
daily wagers/casual labours have sought
regularisation by moving to this Court
through writ petitions under Article 226 of
the Constitution and still number of writ
petitions are pending for absorption. The
case of State of Uttarakhand vs. Raj
Kumar (supra) relates to department of
Bharat Sanchar Nigam Ltd. whereas the
petitioner's case is of the forest department
where the history has been to hire casual
labourers or daily rated workers on a
regular basis and then illegally fire them. A
series of reference has been made in respect
of
various
such
workers
where
reinstatement has been ordered with 50%
backwages and, therefore, in my considered
view, the judgment cited by the learned
Additional Chief Standing Counsel, Mr.
Amit Manohar is distinguishable on the
facts of the case and is of no help to him.
The case of Abhiumnayu and others
(supra) , State of UP & ors vs. Ram
Swarup & anr (supra) and State of UP &
ors vs. Shri Prahalad & ors (supra) are all
related to forest department. So, the history
is otherwise what has been argued by the
learned
counsel
appearing
for
the
department. As a matter of fact, department
failed to produce any officer as witness
who might have worked either at Nichlaul
Range or Sohagibarwa Unit now range.
The departmental witness referred to some
plantation scheme of World Bank in which
daily rated workers used to be engaged but
failed to even state that respondentworkman was engaged there. He admitted
list of workers of the concerned range but
said he did not know the workman so he
would not say anything. It is quite obvious
that if an officer had never worked in the
concerned range during relevant period, he
would not be knowing any thing about
engagement of daily rated workers there.
This officer admitted to be working at
Ballia at relevant time and so he should not
have been produced. The department
virtually failed to rebut the claim set up and
their claim led by the respondent-workman.
On a pointed query being made, learned
Additional Chief Sanding Counsel could
neither dispute the documentary evidence
led, nor could dispute that the workman's
witness who supported the working of the
workman at the barrier of the range, was
not employee of the department. The
learned Additional Chief Standing Counsel
also could not dispute history of litigation
by such workers with the forest department
as cited by learned counsel for the
respondent-workman. Thus, I do not find
any such flaw like manifest error of law
and flaw in the award of the Industrial
Tribunal directing for reinstatement of the
workman in the department.
3 All. State of U.P. & Anr. Vs. Komal Yadav @ Ram Komal & Anr.
437

19. As far as the payment of
backwages is concerned, in all these cases,
50% of the backwages has been directed
and the matter relates to the forest
department. In the case of Abhiumnayu
and others (supra) also, 50% of the
backwages was ordered against which SLP
was dismissed, may be on the ground of
delay only but on the legal proposition
relating to the backwages, I find that in the
case of Allahabad Bank & ors (supra), the
this High Court had directed for payment of
50% of backwages upon reinstatement of
officer/employee of the bank. The SLP was
filed before the Supreme Court. The
Supreme Court in the said case, referred to
a number of judgements and then justified
payment of 50% of the backwages as an act
of striking balance between the department
and its employee. In the said case, the
officer-employee was found to be out of
employment for an illegal and wrongful act
of the department in terminating his
services.

20. Elaborating the principle for
payment of backwages in the case of
Deepali Gundu Surwase vs. Kranti Junior
Adhyapak Mahavidyalaya (D.Ed.) and
ors.; 2013 (10) SCC 324, vide paragraph
33, the Court has held thus:

"33. The propositions which can
be culled out from the aforementioned
judgments are:

i)
In
cases
of
wrongful
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 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 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 averments
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.

iv) 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
438 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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 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 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 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 Private
Limited v. Employees of Hindustan Tin
Works 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 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."

(emphasis added)

21. Relying upon the above judgment,
the Supreme Court in the case of Jeetubha
Khansangji Jadeja vs. Kutchh District
Panchayat decided on 23.09.2022, vide
paragraph 12 has held thus:

"12. In a more recent decision,
Deepali Gundu Surwase v. Kranti Junior
Adhyapak Mahavidyalaya and Others,3
this court highlighted the need to adopt a
restitutionary approach, when a court has
to consider whether to reinstate an
employee and if so, the extent to which
backwages is to be ordered. The court
observed:

"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
3 All. State of U.P. & Anr. Vs. Komal Yadav @ Ram Komal & Anr.
439
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. 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.""

22. Applying the above principle
where neither the department could dispute
the working of the petitioner with it, nor
could produce any witness to dispute the
testimony of a fellow workman who had
deposed in his favour, the approach of the
department was rightly held to be unlawful
in firing the workman suddenly on one fine
morning. I, therefore, do not find any
unreasonableness or perversity in the order
of the Labour Court directly for payment of
backwages.

23. So also I find here to be case
where a poor Class-IV employee, say a
daily
wage
worker/casual
employee,
working at a barrier in the forest range
concerned nearly for about four years
without any complaint regarding his work
and conduct and yet he was fired for
demanding regular pay. This approach of a
government
department
cannot
be
approved of absolutely. Government is a
model employer. I find that in a number of
judgments not only the workmen have been
directed to be reinstated in the department
of forest with backwages but a number of
petitions is before this Court where the
daily rated workers, those who were to
absorbed in service, have been directed to
be paid for minimum of the pay scale.

24. The findings having been returned
that the respondent-workman was out of
employment ever since he was fired from
the department and had no gainful
employment and nothing shown in rebuttal,
the labour Court could not be said to have
faulted in issuing direction for backwages.
Under the circumstances, direction for 50%
of the backwages cannot be said to be
totally
irrational
so
as
to
warrant
interference in exercise of power under
Article 226 of the Constitution of India.
However, I do not find any special reason
to be assigned for payment of interest upon
the backwages by the Tribunal under its
award.
440 INDIAN LAW REPORTS ALLAHABAD SERIES

25. Therefore, the interest part of the
award dated 04.11.2011 is held to be
unsustainable.

26. In view of the above, while I
decline to interfere with the award dated
04.11.2011
passed
by
the
Industrial
Tribunal directing for reinstatement of the
respondent-workman with backwages, I set
aside the award in so far as it directs for
payment of interest upon the back wages.

27. The cost part of the award is also
not interfered with.

28. Thus, writ petition stands partly
allowed as above with no order as to cost.
----------
(2023) 3 ILRA 440
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ C No. 1000609 of 2003

Hari Narain Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
G.M. Kamil

Counsel for the Respondents:
C.S.C., Pt. S. Chandra

A. Civil Law - Indian Stamp Act, 1899 -
Section 33 (1), (4), and Proviso to Clause
(5) - Proceeding initiated after four years
- Maintainability - Instrument of Saledeed
was
impounded
u/s
33(1)
-
Applicability
of
limitation
period
-
Distinction between proceeding of S.
33(1) and 33(4) - Effect - Held, in cases
where an instrument is produced as
evidence which is not duly stamped and is
impounded u/s 33(1) of the Act of 1899,
the provision required to be followed is
only under Section 38 and not under
Sections 33(4) & (5) of the Act of 1899. As
such, the limitation period provided under
Section 33(5) of the Act would not be
applicable in case proceedings are drawn
under Section 33(1) of the Act and would
be available only if proceedings are drawn
by Collector under Section 33(4) of the Act
of 1899. (Para 16)

B. Civil Law - Indian Stamp Act, 1899 -
Section 33 (1), (4), (5) and Proviso to
Clause (5) - Limitation period of four
years - Date of its applicability - Held,
where an instrument of transfer is not
produced before any designated court or
authority as envisioned under Sections 33
or 47-A of the Act of 1899, the aforesaid
period of limitation would run from the
date
when
such
an
unregistered
instrument of transfer is first produced
before any such designated authority -
Further held, limitation can only run from
the date when a person becomes aware of
any proceedings against such a person
and not from the date of such proceedings
or instrument. (Para 18 and 20)

C. Civil Law - Indian Stamp Act, 1899 -
Ss. 33, 40 and 47A - Proceeding -
Maintainability - No benefit was derived
by
petitioner
from
the
unregistered
instrument - Effect - Held, there is no
provision under the Act of 1899 that
proceedings under Section 33/40/47A can
be initiated only in case a person derives
benefit from an unstamped or undervalued
instrument
of
transfer
-
Proceedings under Section 33/40/47A of
the Act of 1899 are maintainable even if
no benefit has been derived from the
unregistered instrument of transfer. {Para
23 and 29(iii)}

D. Civil Law - Indian Stamp Act, 1899 - S.
33
-
Calculation
of
deficiency
-
Appropriate date, on which calculation can
be drawn - Held, valuation of undervalued or unstamped instrument and
deficiency thereof is to be calculated as on