# U.P.S.R.T.C. Reg. Office, Meerut v. Presiding Officer, Labour Court, Meerut & Anr

- **Citation:** (2023) 1 ILRA 174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-14
- **Case number:** Writ-C No. 1610 of 2018
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-s-r-t-c-reg-office-meerut-v-presiding-officer-labour-court-meerut-anr-49131
- **Pages:** 11

## Headnote

(A) Labour Law - The Industrial Disputes
Act, 1947 - Section 11-A - Powers of
Labour Courts, Tribunals and National
Tribunals to give appropriate relief in case
of discharge or dismissal of workmen - in
case of wrongful termination of service -
reinstatement with continuity of service
with back wages is a normal rule -
ordinarily, an employee demanding back
wages, is required to either plead or at
least
make
a
statement
before
the
adjudicating authority or at the Court of
first instance that he was not gainfully
employed or was employed on lessor
wages.(Para - 40)

Respondent no.2 appointed as a Bus Conductor
- in U.P. State Road Transport Corporation
('UPSRTC' ) - duty - surprise checking on Bus -
corrupt practices adopted in distribution of
tickets - report - disclosing corrupt practices -
causing loss to UPSRTC and misbehaviour and
obstruction with checking squad - termination
from services - departmental appeal - rejection
- industrial dispute - labour court - award
against respondent - writ petition - remanded
back to labour court - award - published - full
back wages - not gainfully employed - hence
petition.(Para - 3 to 13)

HELD:-Established on record by respondent
no.2 that he was not gainfully employed after
his termination. Labour Court has rightly given
full back wages. Award of labour court affirmed.
(Para - 44,46)

Petition Dismissed. (E-7)

List of Cases cited:

## Text

174 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 1 ILRA 174
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-C No. 1610 of 2018

U.P.S.R.T.C. Reg. Office, Meerut
 ...Petitioner
Versus
Presiding Officer, Labour Court, Meerut &
Anr. ...Respondents

Counsel for the Petitioner:
Sri Sunil Kumar Misra, Sri Vikas Sahai

Counsel for the Respondents:
C.S.C., Sri Om Prakash Saxena, In Person,
Sri Varad Nath

(A) Labour Law - The Industrial Disputes
Act, 1947 - Section 11-A - Powers of
Labour Courts, Tribunals and National
Tribunals to give appropriate relief in case
of discharge or dismissal of workmen - in
case of wrongful termination of service -
reinstatement with continuity of service
with back wages is a normal rule -
ordinarily, an employee demanding back
wages, is required to either plead or at
least
make
a
statement
before
the
adjudicating authority or at the Court of
first instance that he was not gainfully
employed or was employed on lessor
wages.(Para - 40)

Respondent no.2 appointed as a Bus Conductor
- in U.P. State Road Transport Corporation
('UPSRTC' ) - duty - surprise checking on Bus -
corrupt practices adopted in distribution of
tickets - report - disclosing corrupt practices -
causing loss to UPSRTC and misbehaviour and
obstruction with checking squad - termination
from services - departmental appeal - rejection
- industrial dispute - labour court - award
against respondent - writ petition - remanded
back to labour court - award - published - full
back wages - not gainfully employed - hence
petition.(Para - 3 to 13)

HELD:-Established on record by respondent
no.2 that he was not gainfully employed after
his termination. Labour Court has rightly given
full back wages. Award of labour court affirmed.
(Para - 44,46)

Petition Dismissed. (E-7)

List of Cases cited:

1. Kurukshetra University Vs Prithvi Singh ,
(2018) 4 SCC 483

2. Management of Madurantakam Coop. Sugar
Mills Ltd. Vs S. Viswanathan , (2005) 3 SCC 193

3. H.M. Ltd. Vs Tapan Kumar Bhattacharya &
anr., (2002) 6 SCC 41

4. Bhuvanesh Kumar Dwivedi Vs M/s. H.I.L. ,
2014 (142) FLR 20 (SC)

5. Kurukshetra University Vs Prithvi Singh ,
(2018) 4 SCC 483

6. Deepali Gundu Surwase Vs K.J.A.M. , 2013
(139) FLR 541 (SC)

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Vikas Sahai, learned
counsel for the appellant, and Sri Om
Prakash Saxena, respondent no.2, in
person.

2. The petitioner through the present
writ petition has assailed the impugned
award dated 29.08.2017 (notified by Govt.
Order No.715 dated 29.08.2017 passed by
the Presiding Officer, Labour Court, U.P.
Meerut in Adjudication Case No.173 of
2002.

3. Respondent no.2 Om Prakash
Saxena, was appointed as a Bus Conductor
in U.P. State Road Transport Corporation
1 All. U.P.S.R.T.C. Reg. Office, Meerut Vs. Presiding Officer, Labour Court, Meerut & Anr.
175
(hereinafter referred to as 'UPSRTC').
Respondent no.2 on 25.08.1995 was on
duty on Bus No.UHN-2741 on MeerutSardhana Route. It appears that while the
Bus was on the way, a surprise checking on
the Bus was conducted by the Regional
Checking Squad, Meerut, headed by Sri
Ramesh Chandra, Traffic Superintendent,
who found that certain corrupt practices
had been adopted by respondent no.2 in the
distribution of tickets. He submitted a
report to the Regional Manager, Regional
Officer Meerut, disclosing the corrupt
practices adopted by respondent no.2
thereby causing the loss to the UPSRTC
and misbehaviour and obstruction by
respondent no.2 with the checking squad.

4. The Regional Manager, Meerut,
who is the Disciplinary Authority, by letter
No.833, dated 14.02.1996 issued a charge
sheet to respondent no.2 based on the
report dated 28.08.1995. Later on, certain
correction was made by letter No.2248
dated 09.05.1996 in the charge sheet dated
14.02.1996 whereby denial of the signature
on the waybill was inserted in the charge
sheet to remove the clerical mistake, which
was served upon respondent no.2 and duly
received by him on 13.05.1996.

5. There are seven charges in the
charge sheet dated 14.02.1996. The charges
against the respondent no. 2 are reproduced
herein-below:-

"1-दिन ांक 25.08.1995 को बस सांख्य
यू०एच०एन०-2701 में मेरठ से सरधन म र्ग पर ड्यूटी
करते हुये दकर य लेने के उपर न्त 8 य दियोां के कम
िूरी के दटकट बन न और इन दटकटोां को दितररत न
कर अपनी जेब में रखन ।

2- दटकट सांख्य 3920788 की मूल प्रदत में
मेरठ से न नू, य िी प्रदत में मेरठ सरधन को छः य दियोां
को िर् गकर ज लस जी करन । इसी प्रक र दटकट
सांख्य 3970796 दितीय प्रदत, कोरी रखकर य दियोां को
िो य िी के स मूदिक दटकट िेन और दिभ र् एिां
य दियो को धोख िेन ।

3-म र्गपि में स तिी पांक्ति में रू० 12/- को
रू०10/- िर् गकर रू०2/- िड़प करन । उपरोि
प्रकरण से दिभ र् को ि दन पहुांच न तथ र्म्भीर
भ्रष्ट च र में दलप्त रिन ।

4- दनरीक्षण अदधक ररयोां को अपन कैर् न
चैक करने िेन तथ अभद्रत क व्यिि र ि घोर
अनुर् सनिीनत करन ।

5- दनर्म व्यिस य में कपट एिां बेईम नी
करन ।

6- अपन क यग दनष्ठ पूिगक सम्प दित न
करन ।

7-उत्तर प्रिेर् र ज्य सड़क पररििन दनर्म
कमगच री सेि दनयम िली (अदधक ररयोां से दभन्न) 1981
की ध र - 61 में िदणगत आचरण के प्रदत क यग करने तथ
ध र - 62 के अनुच्छेि 1,5,9,20 एिां 21 में िदणगत
अिच र में दलप्त रिन । "

6. Respondent no.2 submitted an
explanation on 24.02.1996 in response to the
charge sheet dated 14.02.1996 denying the
charges levelled against him. The disciplinary
authority
considered
the
explanation
submitted by the respondent no.2 and found
that an enquiry as per law is to be conducted
to find out the truth in the allegations.
Accordingly, he nominated Sri O.P. Karnwal
as
Enquiry Officer
vide
order dated
07.03.1996. Sri O.P. Karnwal conducted the
enquiry, but he did not complete the enquiry.
Thereafter, one Sri Manoj Kumar, Assistant
Regional Manager, Meerut, was appointed as
Enquiry Officer. As per the record, the
substantial enquiry was conducted by Sri
O.P. Karnwal before Sri Manoj Kumar took
over the enquiry. The Enquiry Officer after
conducting the enquiry found the charges
against respondent no.2 proved and submitted
the enquiry report dated 10.08.1998 to the
disciplinary authority.

7.

The
disciplinary
authority,
thereafter, issued a show cause notice to
176 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no.2 by letter no.3250 dated
01.12.1998 enclosing the enquiry report
and asked respondent no.2 to submit his
objection, if any, against the enquiry report.

8. Respondent no.2 in reply to the
said show cause notice, submitted a
detailed reply on 11.01.1999 in which he
categorically stated that he was not
afforded a reasonable opportunity of
hearing by the Enquiry Officer. Besides the
above plea, he has pointed out several
defects in his reply in conducting the
enquiry by the Enquiry Officer.

9. The disciplinary authority found
the charges against respondent no.2 proved.
The disciplinary authority passed an order
of punishment on 11.06.1999 terminating
the service of respondent no.2.

10.
Respondent
no.2,
thereafter,
preferred
a
departmental
appeal
on
25.06.1999
before
the
appellate
authority/Divisional
General
Manager,
UPSRTC, Meerut, who vide order dated
04.07.2000 rejected the appeal.

11. After the rejection of the appeal,
respondent
no.2
raised
an
industrial
dispute, which was referred to the Labour
Court and registered as Case No.173 of
2002. The Labour Court by order dated
12.08.2010
passed
an
award
against
respondent no.2, which came to be
challenged by respondent no.2 before this
Court by filing Writ-C No.24345 of 2011
(Om Prakash Saxena Vs. Presiding Officer,
Labour Court, Meerut & others).

12. This Court by the judgement
and order dated 09.02.2016 allowed the
said writ petition and quashed the
impugned award dated 12.08.2010 and
remanded the matter to the Labour
Court to consider afresh in the light of
the evidence on record. The relevant
extract
of
the
judgement
dated
09.02.2016 is reproduced herein-below:

"The perusal of the award
reveals that the finding with regard to 8
passengers travelling to Meerut to
Sardhana who were issued tickets for
shorter journey from Nanu to Sardhana
is without the consideration of the
statement of the PW1 wherein he
clearly stated that of the aforesaid 8
passengers, 6 of them had asked for
ticket from Meerut to Nanu and then
had requested for extending the journey
from Nanu to Sardhana whereas one
passenger had asked for ticket from
Shantinagar to Nanu and then Nanu to
Sardhana and one another from Nanu
to Sardhana only. The tickets were
issued to them accordingly from Meerut
to Nanu, Shantinagar to Nanu and then
from Nanu to Sardhana. None of them
journeyed in the Bus for any distance
without ticket.

Needless to say that the Bus
Conductor is supposed to issue tickets
to the passengers as demanded and that
there is no prohibition in issuing tickets
in two parts of the journey particularly
when the passengers initially demands
tickets for a shorter journey and then
for extended journey.

The Labour Court has not dealt
with the above aspect of the matter and
failed to find out if these passengers were
issued separate tickets in two parts of the
journey from Meerut to Nanu and then
from Nanu to Sardhana as contended by
the petitioner. It has only gone by the fact
that they were issued tickets from Nanu to
Sardhana without caring to find to if the
record revealed issuance of tickets to them
from Meerut to Nanu or Shantinagar to
1 All. U.P.S.R.T.C. Reg. Office, Meerut Vs. Presiding Officer, Labour Court, Meerut & Anr.
177
Nanu also in which case they would be
having tickets for the full journey from
Meerut to Sardhana.

In regard to the entry of Rs.12/-
which was converted into Rs.10/- the
explanation and the statement of the
petitioner was that 5 passengers were
shown travelling from Shantinagar to
Dabatwa and were charged @ Rs.2/-a total
of Rs.10/- and this was mentioned in the 7th
line of column 1 and 2 of the Marg Patra
whereas one another passenger was shown
as travelling from Shantinagar to Dabatwa
in line 8 column 1 and 2 in this way the
total
passengers
travelling
from
Shantinagar to Dabatwa remained 6 and a
sum of Rs.10/- plus Rs.2/- was shown to
have realised. There was no manipulation
of the entry of Rs.12/- to Rs.10/- so as to
cause any loss to the roadways.

This statement of the petitioner
was not controverted by any piece of the
evidence but the Labour Court failed to
take it into account and returned the
finding only on the basis of the record of
the enquiry.

It is well settled that any finding
which is recorded without consideration of
the material evidence is nothing but
perverse. The statement of the petitioner
recorded before the Labour Court was a
material piece of evidence vis-a-vis the
charges levelled against him.

The non-consideration of the said
statement or the explanation given by the
petitioner therein regarding the charges
levelled against him vitiates the entire
award.

Accordingly, the impugned award
dated 12.08.2010 is hereby quashed and
the Labour Court is directed to reconsider
the matter afresh in the light of the
evidence on record especially in relation to
the above two aspects of the matter. The
writ petition is allowed as above."

13. After the matter was remanded,
the Labour Court passed an award dated
29.08.2017,
published
on
11.10.2017,
which has been assailed by the UPSRTC in
the present writ petition.

14. Challenging the award, learned
counsel for the petitioner Sri Vikas Sahai,
has raised threefold submissions; that the
finding of the Labour Court that the
punishment order has been passed in
violation of the principle of natural justice
is perverse and erroneous inasmuch as it is
manifest from the record that ample
opportunity of hearing was afforded to the
respondent no.2 by the Enquiry Officer
during the enquiry, and as such, the finding
of the Labour Court holding the enquiry
vitiated on the ground of non-compliance
of the principle of natural justice is not
sustainable in law. Secondly, he submits
that the UPSRTC in para-16 of the written
statement has categorically stated that the
Labour Court has not allowed the petitioner
to lead further evidence which establishes
that the charges against respondent no.2 are
true and correct. It is submitted that it is
settled in law that if there are some
shortcomings in the enquiry, the employer
can
demonstrate
by
leading
cogent
evidence before the Labour Court that the
charges against respondent no.2 are proved.
In support of the said contention, he has
placed reliance upon the judgement of the
Apex Court reported in (2018) 4 SCC 483
Kurukshetra University Vs. Prithvi Singh.

15. Thirdly, he submits that the
Labour Court is under obligation to record
reasons before granting full back wages,
whereas in the instant case, respondent no.2
has not demonstrated that he was not
gainfully employed, thus, the Labour Court
has erred in awarding full back wages. In
support of this contention, he has placed
178 INDIAN LAW REPORTS ALLAHABAD SERIES
reliance upon the two judgments of the
Apex Court reported in (2005) 3 SCC 193
Management of Madurantakam Coop.
Sugar Mills Ltd. Vs. S. Viswanathan &
(2002) 6 SCC 41, Hindustan Motors Ltd.
Vs.
Tapan
Kumar
Bhattacharya
and
Another.

16. Per contra, respondent no.2, who
appeared in person, has submitted that a
detailed finding has been returned by the
Labour Court that enquiry is vitiated for
non-compliance with the principle of
natural justice. He submits that the Labour
Court has recorded a categorical finding
that after the change of enquiry officer, the
petitioner demanded the cross-examination
of the departmental witnesses and on the
request of the petitioner, several dates were
fixed by the Enquiry Officer, but the
departmental witnesses did not appear and
the Enquiry Officer had proceeded with the
enquiry. It is submitted that in the facts of
the case, it was incumbent upon the
Enquiry Officer to ensure the presence of
the departmental witnesses so that he could
have cross-examined them and truth would
have come out in the cross-examination of
the departmental witness as regards the
veracity of the charges levelled against the
respondent no.2. It is submitted that in
absence of proper opportunity to the
respondent no.2 to cross-examine the
departmental
witnesses,
the
Enquiry
Officer has acted illegally in relying upon
the departmental witnesses to hold that the
charges against him are proved. He submits
that learned counsel for the petitioner could
not demonstrate from the record any
perversity in the finding of the Labour
Court.

17. He submits that the Labour Court
has further recorded a categorical finding
that perusal of the statement of Sri Subhash
Chandra,
Assistant
Traffic
Inspector
discloses that the statement given by him is
based on surmises and conjectures and is
not supported by any material on record
and the learned counsel for the petitioner
also could not demonstrate from the record
that the said finding of the Labour Court is
perverse.

18. He further submits that none of
the passengers who were alleged to have
been travelling without proper tickets were
produced to prove the charge against
respondent no.2 and in such view of the
fact, the inquiry is vitiated. It is contended
that as the learned counsel for the petitioner
could not point out any perversity in the
finding of the Labour Court, thus, the
finding of the Labour Court being a finding
of fact does not call for any interference by
this Court in the exercise of its power under
Article 226 of the Constitution of India.

19. Regarding the second submission
of the learned counsel for the petitioner, he
submits that a wrong statement has been
made before the Court that an application
has been submitted by the petitioner before
the Labour Court to produce the documents
which proved the charges against the
respondent no.2. He submits that neither
any application nor any document had been
produced by the petitioner before the
Labour Court which could prove the charge
against the respondent no.2. Thus, he
submits that this ground in the absence of
any material on record is not sustainable.

20. In respect to the submission of
learned counsel for the petitioner with
respect to the back wages, he submits that
in para-22 of his written statement, it has
been categorically stated that despite his
best
efforts
he
could
not get
any
employment and he is unemployed to date.
1 All. U.P.S.R.T.C. Reg. Office, Meerut Vs. Presiding Officer, Labour Court, Meerut & Anr.
179
He submits that the aforesaid fact has again
been reiterated by him in para-7 of his
reply to the objection dated 22.10.2022 of
the petitioner. He further submits that he
has stated before the Labour Court in his
statement on oath that despite his best
effort he could not get any employment and
he is not employed anywhere since the date
of his termination till date.

21. He further submits that the
petitioner in reply to the specific case of
respondent no.2 that he has not been
gainfully employed since the date of
termination till date did not lead any
evidence to demonstrate that he has been
gainfully employed after termination. He
submits that it is settled in law that once an
employee has categorically stated in his
written statement as well as in his statement
before the Labour Court that he has not
been
employed
from
the
date
of
termination till the date of the award, the
onus is upon the employer to demonstrate
that he was gainfully employed and once
such onus is discharged by the employer,
the burden will shift upon the employee to
demonstrate that he has not been gainfully
employed.

22. He further submits that the
departmental
witnesses
in
their
statements before the Labour Court have
not stated that respondent no.2 has been
gainfully employed after termination.
Thus, he submits that even if the Labour
Court has not given any reason in
concluding that he is entitled to full back
wages, this Court may consider this
aspect of the matter in the exercise of
power
under
Article
226
of
the
Constitution of India since there was
enough
material
on
record
which
establishes that he has not been gainfully
employed after termination. In support of
this argument, he has placed reliance
upon the judgement of the Apex Court in
the case of Bhuvanesh Kumar Dwivedi
Vs. M/s. Hindalco Industries Ltd, 2014
(142) FLR 20 (SC). Accordingly, it is
contended that the writ petition lacks
merit and deserves to be dismissed.

23. I have heard learned counsel for
the petitioner, respondent no.2 in person
and perused the record.

24. The facts which emerge from
the record, it is evident that seven charges
were leveled against respondent no.2
which
have
been
extracted
above.
Respondent no.2 denied the charges
levelled
against
him.
Consequently,
disciplinary authority vide order dated
07.03.1996 appointed Sri O.P. Karnwal
as Enquiry Officer, who conducted the
enquiry and recorded the testimony of the
departmental witnesses. However, later
on, he withdrew from the enquiry and Sri
Manoj Kumar was nominated as the new
Enquiry Officer.

25. After the nomination of the new
Enquiry Officer, the petitioner submitted an
application before him for further crossexamination of the departmental witnesses.
On the application of the petitioner, the
Enquiry
Officer
fixed
19.12.1996,
19.02.1997, 15.05.1997, and 24.10.1997
for
cross-examination
of
Department
Witnesses. Respondent no.2 was present on
all the dates, but Departmental witnesses
did not appear before the Enquiry Officer.
The Enquiry Officer fixed 10.08.1998 as
the last date and summoned respondent
no.2 and the petitioner's Officers who
submitted the report, but despite summon,
the concerned Officer did not appear.
Thereafter, respondent no.2 gave his
statement before the Enquiry Officer
180 INDIAN LAW REPORTS ALLAHABAD SERIES
denying the charges levelled against him
and requested for his reinstatement along
with back wages.

26. The Labour Court considered in
detail aforesaid facts and held that as
respondent
no.2
demanded
crossexamination of the departmental witnesses,
therefore, it was incumbent upon the
Enquiry Officer to ensure the presence of
the departmental witnesses to enable
respondent no.2 to cross-examine them, so
that the principle of natural justice may be
complied with.

27. The Labour Court found that as
the Enquiry Officer did not ensure the
presence of departmental witnesses and
respondent no.2 has been denied the
opportunity
to
cross-examine
them,
therefore, there was a violation of the
principle of natural justice and the enquiry
was vitiated on this ground. The Labour
Court further held that Sri Subhash
Chandra, Assistant Traffic Inspector in his
cross-examination made the following
statement:-

" न नू पर जो य िी उतर िोर् उससे
य िी दटकट लेकर सरधन ि ले य िी को िे दिय र्य
िोर् । यिी िर् सांख्य 88 के य िी की भी रिी िोर्ी।
"

28. Similarly, Sri Vinod Kumar,
Assistant Traffic Inspector made the
following statement before the Labour
Court, which reads:-

"आरोपी ने प्रश्न दकय दक यदि दटकट
सांख्य 788 और 797 य दियोां के प स प ये र्ये थे तो
उनके दटकट ध री न नू में िी क्ोां निीां उतर र्ये थे?
उत्तर में श्री र्म ग ने बत य दक िि य िी मेरठ से
सरधन के थे उनकी सन्तुदष्ट के दलये आरोपी ने उन्हें
अपने िस्तलेख में स मुदिक दटकट सांख्य 788 िे
रख थ जो आरोपी ि र पूिग में बन हुआ दटकट थ ,
आरोपी ने न नू में उतरने ि ले दकसी य िी को
सम्भितः य तो दटकट निीां दिय िोर् अथि य िी
ि र फैंक र्य दटकट आरोपी ने उठ कर िूसरे
य दियोां को तसल्ली िेतु उन्हें िे दिय िोर् ।"

29. After considering the aforesaid
statements, the Labour Court held that the
statements of the investigation team reveal
that the statements have been made on
surmises and conjectures and there was no
material on record in support of the said
statement. The Labour Court further held
that the investigation team did not record
the name and address of any of the
passengers
who
were
said
to
have
possessed incomplete tickets, whereas the
statement taken by the investigation team
from
the
passengers
during
the
investigation
was
submitted
to
the
concerned Officer who submitted the
investigation report. Consequently, the
labour Court held that in the absence of any
detail of the passengers and their addresses
and placing reliance on the statement of
such passengers by the Enquiry Officer
also vitiate the enquiry proceeding as they
were not produced before the Enquiry
Officer to verify as to whether they had
given any statement to the spot checking
squad.

30. The facts delineated above,
clearly reveal that the Labour Court has
given elaborate and cogent reasons based
upon the appreciation of facts and evidence
on record to conclude that the enquiry was
vitiated for non-compliance with the
principle of natural justice.

31. Learned counsel for the petitioner
though vehemently tried to submit that the
finding of the Labour Court is perverse and
erroneous, but could not demonstrate from
the record that the said finding is perverse
or erroneous or against any provision of
1 All. U.P.S.R.T.C. Reg. Office, Meerut Vs. Presiding Officer, Labour Court, Meerut & Anr.
181
law. In such view of the fact, since the
finding with respect to the violation of the
principle of natural justice returned by the
labour Court is a finding of fact, therefore,
this Court is not inclined to interfere with
the same in the exercise of power under
Article 226 of the Constitution of India.

32. In respect of the second
contention advanced by the learned counsel
for the petitioner, noted above, a query was
put to the learned counsel for the petitioner
to place the application that the department
had filed before the Labour Court to
produce the documents on record which
could prove the charge against the
respondent no.2. In response, he submits
that no such application was submitted
before labour court and the said statement
has been made on the basis of averments
made in para-16 of the written statement.

33. He submits that no document had
been supplied by the Officer of UPSRTC to
him which the UPSRTC wanted to file
before the Labour Court to demonstrate
that the charge against respondent no.2 was
proved nor he could place any document
from the record that was filed before the
labour court by UPSRT which could
establish that the charges leveled against
the respondent no. 2 were correct. In such
view of the fact, the second contention of
the learned counsel for the petitioner is
misconceived and deserves to be rejected
and is hereby rejected. This court is of the
view that the judgment of the Apex court in
the case of (2018) 4 SCC 483 Kurukshetra
University
Vs.
Prithvi
Singh
is
distinguishable on facts and does not come
in aid to the petitioner.

34. So far as the third submission of
the learned counsel for the petitioner about
back wages is concerned, this Court may
note that the Labour Court while awarding
full back wages has not given any reason,
but in the facts of the present case, this
Court is not inclined to remand the matter
as a poor employee has spent his golden
years of life in contesting his rightful claim.
He succeeded once before this Court and
the matter was remanded, thereafter, again
he succeeded before the Labour Court in
year 2017 and since then more than 5 years
have passed, and he has not yet reaped the
fruits of the award.

35. It is pertinent to mention that
respondent no.2 in para-2 of the written
statement has categorically stated that
despite his best effort, he could not get any
employment,
and
he
is
without
employment
since
the
date
of
his
termination till date. Para-22 of the
objection dated 10.09.2022 appearing on
page 92 of the paper book is reproduced
herein below: -

"22. यि दक सांबांदधत श्रदमक अपनी सेि
से पृथक िोने की दतदथ से आजतक बेरोजर् र िै और
सांबांदधत श्रदमक ने अपनी बेरोजर् री को सम प्त
करने के दलए क फी प्रय स दकए, दकन्तु उसे कोई
नौकरी निीां दमली।"

36. He again in para-9 (page 106 of
the paper book) in his reply dated
22.10.2002 to the objection of UPSRTC
has categorically stated that he has not been
gainfully employed after his termination.
Para-9 is reproduced herein-below:-

"यि दक ध र 16,17,18 क कथन भी
र्ैरक नूनी एिां आध रिीन िोने के क रण स्वीक र
निीां िै क्ोांदक सेि योजकोां ने ज ांच करके ि सांबांदधत
श्रदमक के दिरूद्ध आरोपोां को दसद्ध करके पूणग
अिसर ले दलय िै और पुनः आरोप दसद्ध करने क
अिसर दलय ज न न तो न्य योदचत िै और न िी
म ननीय श्रम न्य य लय को ऐस कोई क्षेि दधक र िी
182 INDIAN LAW REPORTS ALLAHABAD SERIES
प्र प्त िै। सांबांदधत श्रदमक सेि सम क्तप्त की दतदथ से
आज तक बेरोजर् र िै और दकसी भी ल भप्रि
दनयोजन में निीां िै तथ सांबांदधत श्रदमक अपनी सेि
सम क्तप्त दतदथ से पूणग िेतन ि अन्य िेय ल भोां को प ने
क पूणग रूप से अदधक री िै।"

37. respondent no.2 in his statement
before the Labour Court has categorically
stated on oath that he has not been
gainfully employed after his termination
from service. The relevant extract of the
statement of respondent no.2 from page 30
of the supplementary counter affidavit is
reproduced herein below:

" --- मै सेि सम क्तप्त की दतदथ से आज
तक बेरोजर् र हूँ। मैने नौकरी की क फी कोदर्र् की
लेदकन नौकरी किी निी दमली।"

38. Though in the written statement
dated 18.10.2002 of the UPSRTC, it has
been stated in para-17 that respondent no.2
has been gainfully employed but no
evidence was filed by the UPSRTC to
prove that respondent no.2 was gainfully
employed after termination. It is settled law
that once it has been pleaded and stated by
the employee that he has not been gainfully
employed after his termination, the onus is
upon the department to prove that the
employee has been gainfully employed
after termination, and only then the burden
will shift upon the employer to prove that
he was not gainfully employed.

39. In this context, it would be apt to
refer to the judgement of the Apex Court in
the case of Deepali Gundu Surwase Vs.
Kranti
Junion
Adhyapak
Mahavidyalaya, 2013 (139) FLR 541
(SC) has held as under:

"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
1 All. U.P.S.R.T.C. Reg. Office, Meerut Vs. Presiding Officer, Labour Court, Meerut & Anr.
183
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 Limited v.
Employees of Hindustan Tin Works Private
Limited (supra)."

40. From the aforesaid judgement, it is
evident that it is settled in law that in case of
wrongful
termination
of
service,
the
reinstatement with continuity of service with
back wages is a normal rule. The Apex Court
in the said case has further laid down that
ordinarily, an employee demanding back
wages, is required to either plead or at least
make a statement before the adjudicating
authority or at the Court of first instance that
he was not gainfully employed or was
employed on lessor 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 workman was
gainfully employed during the period of
termination and was drawing wages equal to
the wages he was drawing prior to the
termination of service.

41. In the instant case, as has been
delineated above that a specific case has
184 INDIAN LAW REPORTS ALLAHABAD SERIES
been set up by respondent no.2 that he was
not employed gainfully anywhere which
fact though has been denied in the
objection by the UPSRTC, none of its
witnesses before the Labour Court have
denied the statement of respondent no.2
before Labour Court that he was not
gainfully employed and was not drawing
any wage which he was getting before the
termination. The UPSRTC did not lead any
evidence to demonstrate that respondent
no.2 was gainfully employed and was
getting the same wages as he was getting
before the termination.

42. It is settled in law that Court should
endeavor to do substantial justice. This court
has ample power under Article 226 of the
Constitution of India to do substantial justice,
and in doing so, it can supplement the reason
in support of a finding of a subordinate court
if it finds that there is enough material on
record that justifies the finding of the
subordinate court or tribunal though no
reason has been given by the subordinate
court or the tribunal ins support of said
finding.

43. In the instant case as there was
ample material on record that proved that
respondent no.2 was not gainfully employed
after his termination, therefore, this Court is
not inclined to remand the matter on this
technical ground before the Labour Court that
no reason was assigned by the Labour Court
before awarding back wages.

44. In such view of the fact, this Court
finds that as it is established on record by
respondent no.2 that he was not gainfully
employed after his termination, the Labour
Court has rightly given full back wages.

45. Thus, the judgment of Apex Court
in
the
case
of
Management
of
Madurantakam Coop. Sugar Mills Ltd.
(supra)
&
Hindustan
Motors
Ltd.
(supra) on which reliance has been placed
by the learned counsel for the petitioner on
the point that since the tribunal has not
given any reason while awarding back
wages vitiates the award are not applicable
in the facts of the present case as in those
cases, it seems that there was material on
record
which
established
that
the
employees were gainfully employed after
termination.

46. Thus, for the reasons given above,
the petition lacks merit. It is accordingly
dismissed and the award of the labour
court is affirmed. There shall be no order as
to costs.
----------
(2023) 1 ILRA 184
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Writ-C No. 3297 of 2020

Adil Khan ...Petitioner
Versus
V.C., A.M.U., Aligarh & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Prabhakar Dwivedi, Sri Jitendra Kumar,
Sri Mohd Zubair, Nasir Adil, Sri Prashant
Rai, Sri Rakesh Pandey, Sr. Advocate

Counsel for the Respondents:
Sri Shashank Shekhar Singh

(A)
Civil
Law
-The
Aligarh
Muslim
University Act, 1921 - Section 13(6) - The
Aligarh Muslim University (Amendment)
Act, 1981 - Section 36 (B) , Aligarh Muslim
University
Students
Conduct
and