# U.P.S.R.T.C. & Anr v. Sri Rizwan Nabi Siddiqui & Ors

- **Citation:** (2021) 10 ILRA 929
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-01
- **Case number:** Misc. Single No. 19906 of 2019
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-s-r-t-c-anr-v-sri-rizwan-nabi-siddiqui-ors-46431
- **Pages:** 7

## Headnote

930 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C., Birendra Prasad Singh

Industrial Disputes Act (14 of 1947) -
Award
-
Wrongful
Termination
-
Reinstatement with full back wages -
in cases of wrongful termination of
service, reinstatement with continuity
of service and back wages is the
normal rule - 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 (Para 11)

Enquiry against employee, conductor held
without any basis & complaint - charges could
not be proved by the employer-Corporation in
the domestic enquiry as well as before the
tribunal
on
opportunity
given.
Charged
employee was forced not to work due to
illegal & arbitrary action of the employercorporation with some ulterior motive, while
the employee had not denied to work-
Corporation could not prove that the charged
employee was gainfully employed anywhere
after removal - Grant of reinstatement with
back wages, proper (Para 15)

Dismissed. (E-5)

List of Cases cited:

## Text

10 All. U.P.S.R.T.C. & Anr. Vs. Sri Rizwan Nabi Siddiqui & Ors.
929
Court to intervene in the facts and
circumstances as adumbrated above.

69. This Court is of the view that
necessary
ingredients
for
grant
of
injunction were present and though it may
not have been elaborately dealt by the trial
court and though it would have been sound
exercise of jurisdiction and discretion if the
trial Court would have considered all the
three ingredients with little more clarity but
nevertheless it was not required for the
lower Appellate Court to enter into the
material available before it in such a
manner that it amounts to holding a mini
trial, [see:Anand Prasad Agarwalla vs.
Tarkeshwar Prasad & Ors., reported in
(2001) 5 SCC 568], hence, this Court is of
the view that the impugned order passed by
the lower Appellate Court cannot be
sustained and is accordingly set aside.

70. The order of injunction dated
07.12.2019 passed by the trial Court is
restored with the condition that the
petitioners shall pay the monthly charges,
for their occupation inclusive of the
charges for the meals and electricity, at a
tentative rate of Rs.12,000/- per month for
both the petitioners, payable at the end of
the every month to the respondents by a
cheque, for which the respondents shall
issue a receipt, and the amount so paid shall
be subject to the final determination made
in this regard by the trial Court who shall
ascertain the amount payable by the
petitioners to the respondents towards room
charges, electricity and for meals for the
period of their stay.

71. Since, the written statement has
already been filed, this Court deems it
appropriate to direct the Court concerned
where Regular Suit No.2938/2019 is
pending to expedite the trial and conclude
the same preferably within a period of one
year from the date a copy of this judgment
and order is placed before the Court
concerned, noticing that no unnecessary
adjournments is to be asked for by the
parties nor to be granted by the Court to
either of the parties except in exceptional
circumstances. In case, if the trial Court
finds that any party is misusing the liberty,
it shall be within the powers of the trial
Court
to
impose
costs
which
is
commensurate
in
the
facts
and
circumstances to ensure that the time line
provided by the Court is scrupulously
adhered.

72. In light of the discussions
hereinabove, the impugned order dated
20.10.2020 passed in Misc. Civil Appeal
No.7/2020 is set aside. The order of the
trial Court dated 07.09.2019 subject to the
above condition in Para-70 shall stand
restored. Resultantly, the petition stands
allowed, however, in the facts and
circumstances, there shall be no order as to
costs.
----------
(2021)10ILR A929
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Misc. Single No. 19906 of 2019

U.P.S.R.T.C. & Anr. ...Petitioners
Versus
Sri Rizwan Nabi Siddiqui & Ors.
 ...Respondents

Counsel for the Petitioners:
Ambika Prasad

Counsel for the Respondents:
930 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C., Birendra Prasad Singh

Industrial Disputes Act (14 of 1947) -
Award
-
Wrongful
Termination
-
Reinstatement with full back wages -
in cases of wrongful termination of
service, reinstatement with continuity
of service and back wages is the
normal rule - 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 (Para 11)

Enquiry against employee, conductor held
without any basis & complaint - charges could
not be proved by the employer-Corporation in
the domestic enquiry as well as before the
tribunal
on
opportunity
given.
Charged
employee was forced not to work due to
illegal & arbitrary action of the employercorporation with some ulterior motive, while
the employee had not denied to work-
Corporation could not prove that the charged
employee was gainfully employed anywhere
after removal - Grant of reinstatement with
back wages, proper (Para 15)

Dismissed. (E-5)

List of Cases cited:

1. H.V.P.N. Ltd & ors. Vs Bal Govind AIR 2017
SC 617

2. Smt. Kewlapati Vs U.P.Lok Sewa Adhikaran,
Indira Bhawan Lko & ors. 2918 (2) ALJ 516

3. Deepali Gundu Surwase Vs Kranti Junior
Adhyapak Mahavidyalaya (D.Ed) & Ors (2013)
10 SCC 324

4. Raj Kumar Vs. Director of Education & ors.
(2016) 6 SCC 541

5. Marwari Balika Vidyalaya Vs. Asha Srivastava
& ors. (2020) 14 SCC 449

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

1. Heard, Shri Ambika Prasad,
learned counsel for the petitioners and Shri
Birendra Prasad Singh, learned counsel for
the opposite party no.1. Learned Standing
Counsel is present for the opposite parties
no.2 and 3.

2. This petition has been filed
challenging the award dated 31.01.2019
passed by the Presiding Officer, Industrial
Tribunal (2), U.P., Lucknow i.e. the
opposite party no.3, in adjudication Case
No.97 of 2015.

3. Learned counsel for the petitioners
submitted that there were several charges
against the opposite party no.1, which were
proved
in
the
inquiry
but
without
considering the same the award has been
passed and the opposite party no.1 has been
directed to be reinstated with full back
wages, which could not have been done.
The full back wages could not have been
allowed on the principle of 'No Work No
Pay'. He relied on H.V.P.N. Ltd and
Others Versus Bal Govind; AIR 2017
Supreme Court 617 and Smt. Kewlapati
Versus U.P.Lok Sewa Adhikaran, Indira
Bhawan Lko and Others; 2918 (2) ALJ
516.

4. Learned counsel for the respondent
no.1 submitted that the action was taken
against the opposite party no.1 without any
basis or complaint with mala fide intention
after the opposite party no.1 had deposited
the amount collected by him. The inquiry
was not conducted in accordance with law.
Therefore the Tribunal had rejected the
inquiry report of the respondents by means
of order dated 03.08.2016 and provided
opportunity to the petitioners to prove the
charges on merit. Even thereafter the
petitioners could not prove the charges
before the Tribunal also. Therefore the
10 All. U.P.S.R.T.C. & Anr. Vs. Sri Rizwan Nabi Siddiqui & Ors.
931
award
has
rightly
been
passed
in
accordance with law. There is no illegality
or error in the award and full back wages
have rightly been allowed in accordance
with law because the opposite party no.1
was forced not to work by the action taken
by the petitioners illegally and without any
basis or complaint whereas the opposite
party no.1 was ready and willing to work.
He relied on Deepali Gundu Surwase Vs.
Kranti Junior Adhyapak Mahavidyalaya
(D.Ed) and Others; (2013) 10 SCC 324,
Raj Kumar Vs. Director of Education
and Others; (2016) 6 SCC 541 and
Marwari Balika Vidyalaya Vs. Asha
Srivastava and Others; (2020) 14 SCC
449.

5. I have considered the submissions
of learned counsel for the parties and
perused the record.

6. The opposite party no.1 Shri
Rizwan Nabi Siddiqui was employed as
Conductor on temporary basis in the
petitioners corporation. He was placed
under suspension by means of the order
dated 19.03.2004 and a charge sheet was
served requiring him to submit the
explanation / reply. Assistant Regional
Manager
(Finance)
Gorakhpur
was
appointed as Inquiry Officer. The opposite
party no.1 had submitted his reply on
01.05.2004 in which he denied all the
charges and submitted that the charges
have been levelled against him with mala
fide intention. Thereafter an inquiry was
conducted. On the the basis of which the
opposite party no.1 was removed from
service by means of the order dated
27.10.2006. The opposite party no.1 had
filed an appeal which was dismissed by
means of the order dated 17.04.2007.
Thereafter he preferred a representation on
16.08.2007
to
the
Chief
Manager,
Headquarters,
Lucknow
which
was
dismissed by means of the order dated
02.04.2009. Thereafter the opposite party
no.1 preferred a Writ Petition No.49049 of
2009 which was dismissed by means of the
order dated 28.07.2010 on the ground of
availability of alternative remedy before the
Industrial
Tribunal.
Thereafter
an
application
was
preferred
to
the
Conciliation Officer and the dispute was
referred to the Industrial Tribunal. After
filing of the written statement by the parties
and considering the preliminary issues of
the validity of enquiry, it was found that the
inquiry is not proper and legal therefore it
is vitiated and the petitioners were afforded
opportunity to prove the charges on merit.
But even thereafter the charges could not
be proved before the tribunal. Therefore by
means of the impugned award the opposite
party no.1 has been directed to be
reinstated with all consequential benefits.
Hence the present writ petition has been
filed challenging the same.

7. The order dated 03.08.2016, by
means of which the inquiry held by the
petitioners, was held to be vitiated, has not
been challenged, therefore the inquiry held
by the petitioners can not be looked into.
The petitioners also could not prove the
charges on merit before the tribunal.
Perusal of the pleadings in the writ petition
and the arguments advanced before this
Court, it is apparent that the inquiry before
the tribunal, in which also the charges
could not be proved, has not been
challenged. The impugned award has been
challenged mainly on the ground that the
opposite party no.1 is not entitled for back
wages on the principles of ''No Work No
Pay'. The charges levelled against the
opposite party no.1 were levelled in regard
to the operation of the bus on Delhi-Sonauli
route on different dates. The first charge
932 INDIAN LAW REPORTS ALLAHABAD SERIES
was in regard to 04.10.2003. The charges
were to the effect that the total number of
passengers and the amount has not been
entered in words and the stamp has not
been put on Khalilabad and Harraiya check
post. The income is very less than the
target. A charge has also been levelled that
there is difference in colour of stamp as it is
dark in middle and light in the side. The
similar charges have been level for
different dates i.e. 14.10.2003, 03.12.2003,
28.09.2003,
07.10.2003,
22.11.2003,
30.10.2003 and 22.10.2003.

8. The petitioners have failed to prove
the charges in domestic inquiry as well as
before the tribunal on opportunity given by
the tribunal to prove the charges on merit.
It could also not be disclosed as to what
was the target of income which could not
be achieved. The petitioners also could not
produce any evidence or rule to show that
putting of stamp on the check post was
necessary. A plea was taken by the
opposite party no.1 that when the bus used
to pass from the Harraiya and Khalilabad
check post, the check post used to close due
to late night and to avoid the jam on main
high way, the employees of the check post
used to allow the vehicles to pass without
checking. The petitioners also failed to
prove by any evidence or show any rule
that mentioning of the amount in numbers
and words was necessary, whereas it was
proved by the PW-2 that after checking at
various levels the cash was deposited and
no complaint was registered at the time of
depositing the amount.

9. Perusal of the record also does not
indicate as to how the inquiry was
instituted against the petitioners and he was
placed under suspension. It also could not
be clarified by learned counsel for the
petitioners. Therefore, it is apparent that the
inquiry was instituted against the opposite
party no.1 without any basis and complaint
with some ulterior motive and he was
removed from service on 7.10.2006 in
arbitrary and illegal manner without
application of mind. Therefore, this Court
is of the view that the order of removal has
rightly been set aside by the tribunal
holding that the opposite party no.1 is
entitled
for
reinstatement
with
all
consequential benefits.

10. Adverting to the plea of the
petitioners regarding non entitlement of full
back wages on the principle of ''No Work
No Pay', this court finds that the inquiry
was instituted against the opposite party
no.1 without any basis and complaint with
some ulterior motive and the charges could
not be proved twice and he was not
employed anywhere after removal. It was
stated by the opposite party no.1 in his
written statement in paragraph-14. During
inquiry before the Industrial Tribunal also
he has stated in his evidence and no
evidence
could
be
adduced
by
the
petitioners or culled out in the crossexamination of the opposite party no.1
which may show that the opposite party
no.1 was employed anywhere. Therefore
the opposite party no.1 has rightly and in
accordance with law has been held entitled
for reinstatement with all consequential
benefits.

11. The Hon'ble Supreme Court in the
case of Deepali Gundu Surwase Vs.
Kranti Junior Adhyapak Mahavidyalaya
(D.Ed) and Others (Supra), has held that
in cases of wrongful termination of service,
reinstatement with continuity of service and
back wages is the normal rule. It has been
further held that if the employer wants to
avoid payment of full back wages, then it
has to plead and also lead cogent evidence
10 All. U.P.S.R.T.C. & Anr. Vs. Sri Rizwan Nabi Siddiqui & Ors.
933
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
relevant paragraphs 22 and 38 are extracted
below:-

"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 concerned
employee, 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. Denial of back wages to
an employee, who has suffered due to an
illegal act of the employer would amount to
indirectly
punishing
the
concerned
employee and rewarding the employer by
relieving him of the obligation to pay back
wages including the emoluments..

38. 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
934 INDIAN LAW REPORTS ALLAHABAD SERIES
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 inquiry 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.

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 Li minted 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
10 All. Smt. Saeeda Ashraf & Anr. Vs. V A.D.J., Faizabad & Ors.
935
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."

12. The Hon'ble Supreme Court, in the
case of Raj Kumar Vs. Director of Education
and Others (Supra), has held that the
respondents have been unable to produce any
evidence to show that he was gainfully
employed during that period and therefore he is
entitled to back wages and other consequential
benefits in view of the law laid down by this
Court in the case of Deepali Gundu Surwase
Vs. Kranti Junior Adhyapak Mahavidyalaya
(D.Ed) and Another; (2013) 10 SCC 324.

13. The Hon'ble Supreme Court, in the
case of Marwari Balika Vidyalaya Vs. Asha
Srivastava and Others (Supra), has held that
the manner in which termination had been
made was clearly arbitrary and the order was
illegal and void and thus back wages should
follow.

14. The Hon'ble Supreme Court in the
case of H.V.P.N. Ltd and Others Versus Bal
Govind (Supra), relied by the petitioners, has
denied the back wages because the respondent
therein was out of service on account of his
involvement in a criminal case as warranted by
the service rules and the request in the notice
sent by the respondent was only for the salary
of the month of August, 1992. This Court also
in the case of Smt. Kewlapati Versus U.P.
Lok Sewa Adhikaran, Indira Bhawan Lko
and Others (Supra), relied by learned counsel
for the petitioners denied the back wages
because the punishment order and the appellate
order were set-aside by the tribunal on the
ground that the inquiry conducted by the
Inquiry Officer was in utter violence of
principles of natural justice i.e. on technical
ground. So as per the settled proposition of law
the matter should have been remanded to the
Punishing Authority but the Tribunal had
reinstated the petitioner with all consequential
service benefits denying the back wages.
Therefore these case laws are not applicable on
the facts and circumstances of the present case
and of no assistance to the petitioners.

15. In view of above, this Court is of the
considered opinion that there is no illegality or
error in the impugned award and allowing all
consequential benefits because the enquiry was
held without any basis and complaint and the
charges could not be proved by the petitioners
in the domestic enquiry as well as before the
tribunal on opportunity given. Therefore the
opposite party no.1 was forced not to work due
to illegal and arbitrary action of the petitioners
with some ulterior motive, while he had not
denied to work. The petitioners also could not
prove that the opposite party no.1 was gainfully
employed anywhere after removal. Therefore
the writ petition has been filed on misconceived
ground and lacks merit and it is liable to be
dismissed.

16. The writ petition is dismissed. No
order as to costs.
----------

(2021)10ILR A935
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.10.2021

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Misc. Single No. 72 of 1993

Smt. Saeeda Ashraf & Anr. ...Petitioners
Versus
V A.D.J., Faizabad & Ors. ...Respondents

Counsel for the Petitioners:
M.A. Siddiqui