Supreme Court of India
Pradeep S/O Rajkumar Jain vs Manganese Ore(India) Limited on 10 December, 2021Author: K.M. Joseph

Bench: K.M. Joseph, Pamidighantam Sri Narasimha




(Arising out of SLP (C)No. 21346 of 2017)






(1) Leave granted.

(2) The appellant is a qualified Chartered Accountant. He

was appointed as Manager (Finance) by order dated

22.10.1997. Thereafter, he was posted in 2005 at the

Balaghat Mines as the Deputy Chief (Finance). In certain

circumstances, which were on account of the death of his

father, he had to report late for work on three days. He

was served with a show cause and it was followed up by yet

another show cause. It was replied to. He came to be

suspended on 05.10.2007. He was served with a charge memo

Signature Not Verified
on 27.10.2007. Thereafter, he was dismissed on 12.08.2008.
Digitally signed by
Nidhi Ahuja
Date: 2021.12.20
15:36:15 IST
The appeal carried by him was dismissed. He filed a writ

petition. The writ petition filed was partly allowed by the


Division Bench and this has resulted in the present appeal.

(3) The controversy lies in a very narrow compass. While

the Division Bench has ordered reinstatement of the

appellant, the Court has denied him the benefit of

backwages. In other words, this Court is called upon to

decide whether there is justification to deny backwages to

the appellant.

(4) We have heard learned counsel for the appellant and

learned counsel for the respondent.

(5) The respondent is, undoubtedly, State under Article 12

of the Constitution. The contention of the appellant is

that the appellant as a Chartered Accountant has been

victimised. There was no justification at all in law, or in

facts in launching the disciplinary proceedings against the

appellant and it has been so held by the High Court as well

in the impugned order. The High Court, however, has

proceeded to take the view that the appellant is not

entitled to backwages. The reason given is as follows

‘specially when the appellant has not worked during the said


(6) Learned counsel for the respondent would oppose the

appeal by pointing out that the burden lay with the

employee, if the appellant wished to show that he had not

worked during the period that he was kept out of the


employment. The appellant’s counsel joins issue with this

proposition. He points out that judgments of this Court

establish the principle that all that is required is that

the workman/appellant must plead that he had not worked

during the period when he was kept out of employment by

illegal termination. In this regard, the appellant drew

support from a large body of case law. In particular, he

drew our attention to the judgment of this Court in Deepali

Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya

(D.Ed.) & Ors. (2013) 10 SCC 324. The Bench of two learned

Judges in the said case has, after reviewing of case law

which included survey of two earlier three Judges Benches of

this Court, concluded as follows:

“38. The propositions which can be culled out from the
aforementioned judgments are:

38.1. In cases of wrongful termination of service,
reinstatement with continuity of service and back
wages is the normal rule.

38.2. 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

38.3. 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 averment about
its existence. It is always easier to prove a positive
fact than to prove a negative fact. Therefore, once
the employee shows that he was not employed, the onus
lies on the employer to specifically plead and prove
that the employee was gainfully employed and was
getting the same or substantially similar emoluments.

38.4. 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 foisted a false charge, then there
will be ample justification for award of full back

38.5. 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
victimising the employee or workman, then the court or
tribunal concerned 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 keep in view that
in the cases of wrongful/illegal termination of
service, the wrongdoer is the employer and the
sufferer is the employee/workman and there is no
justification to give a 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

38.6. In a number of cases, the superior courts have


interfered with the award of the primary adjudicatory
authority on the premise that finalisation 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 (P)
Ltd. v. Employees [(1979) 2 SCC 80 : 1979 SCC (L&S)
53] .

38.7. The observation made in J.K. Synthetics Ltd. v.
K.P. Agrawal [(2007) 2 SCC 433 : (2007) 1 SCC (L&S)
651] 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
[Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2
SCC 80 : 1979 SCC (L&S) 53] , [Surendra Kumar Verma v.
Central Govt. Industrial Tribunal-cum-Labour Court,
(1980) 4 SCC 443 : 1981 SCC (L&S) 16] 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.

“42. In the result, the appeal is allowed, the
impugned order [Kranti Junior Adhyapak Mahavidyalaya
v. State of Maharashtra, (2012) 1 Mah LJ 370] is set
aside and the order passed by the Tribunal is
restored. The management shall pay full back wages to
the appellant within four months from the date of
receipt of copy of this order failing which it shall
have to pay interest at the rate of 9% per annum from
the date of the appellant’s suspension till the date
of actual reinstatement. It is also made clear that in
the event of non-compliance with this order, the
management shall make itself liable to be punished
under the Contempt of Courts Act, 1971.”


(7) Learned counsel for the respondent, on the other hand,

sought support from another line of decisions which

represent the later view adopted by this Court in Talwara

Cooperative Credit and Service Society Ltd. v. Sushil Kumar

(2008) 9 SCC 486. He also sought support from the judgment

in Rajasthan State Road Transport Corporation, Jaipur v.

Phool Chand (Dead) Through Legal Representatives (2018) 18

SCC 299.

(8) Learned counsel for the appellant on being faced with

this line of decisions, would, in the first place, point out

that this Court in Talwara Cooperative Credit and Service

Society Ltd. (supra) has adverted to Section 106 of the

Evidence Act and therefore, the burden lay on the employee

for which reference was made to an earlier judgment and he

would point out that, in fact, in the earlier judgment,

there is no reference to Section 106 of the Evidence Act.

(9) We notice that it is true that in Talwara Cooperative

Credit and Service Society Ltd. (supra), this Court has held

inter alia:

“13. This Court in a large number of cases noticed the
paradigm shift in the matter of burden of proof as
regards gainful employment on the part of the employer
holding that having regard to the provisions contained
in Section 106 of the Evidence Act, the burden would be
on the workman. The burden, however, is a negative one.
If only the same is discharged by the workman, the onus
of proof would shift on to the employer to show that the
employee concerned was in fact gainfully employed. In
Surinder Kumar [(2006) 5 SCC 173 : 2006 SCC (L&S) 967] ,
this Court held : (SCC p. 177, paras 12-14)


“12. The Labour Court and the High Court also
proceeded wrongly on the premise that the burden
of proof to establish non-completion of 240 days
of work within a period of twelve months
preceding the termination, was on the management.
The burden was on the workman. (See U.P. State
Brassware Corpn. Ltd. v. Uday Narain Pandey
[(2006) 1 SCC 479 : 2006 SCC (L&S) 250 : JT
(2005) 10 SC 344] and State of M.P. v. Arjunlal
Rajak [(2006) 2 SCC 711 : 2006 SCC (L&S) 429].)
13. Equally well settled is the principle that
the burden of proof, having regard to the
principles analogous to Section 106 of the
Evidence Act that he was not gainfully employed,
was on the workman. (See RBI v. S. Mani [(2005) 5
SCC 100 : 2005 SCC (L&S) 609].)
14. It is also a trite law that only because some
documents have not been produced by the
management, an adverse inference would not be
drawn against the management. (See S. Mani
[(2005) 5 SCC 100 : 2005 SCC (L&S) 609].)””

In fact, the said judgment has made reference to the

judgment reported in Manager R.B.I. Bangalore v. S. Mani &

Ors. (2005) 05 SCC 100 for what is stated in para 13.

(10) We do not find, in fact, any reference to Section 106

of the Evidence Act being made in Manager R.B.I. Bangalore

(supra). It is true, however, that in the judgment reported

in Municipal Council Sujanpur v. Surinder Kumar (2006) 5 SCC

173, there is a reference made to Section 106 of the

Evidence Act and in the manner in which it is stated in

paragraph 13 it is quoted also in Talwara Cooperative Credit

and Service Society Ltd. (supra).

There is an earlier judgment of this Court rendered by

a Bench of three learned Judges which is reported in Shambhu


Nath Goyal v. Bank of Baroda and Others (1983) 4 SCC 491

which has dealt with the issue in the following words:

The management is thus seen to have been taking
steps periodically to see that the dispute is not
disposed of at an early date one way or the other.
The blame for not framing an issue on the question
whether or not the workman was gainfully employed in
the intervening period cannot be laid on the
Tribunal alone. It was equally the duty of the
management to have got that issue framed by the
Tribunal and adduce the necessary evidence unless
the object was to rake up that question at some
later stage to the disadvantage of the workman as in
fact it has been done. The management appears to
have come forward with the grievance for the first
time only in the High Court. There is no material on
record to show that the workman was gainfully
employed anywhere. The management has not furnished
any particulars in this regard even before this
Court after such a long lapse of time. The workman
could have been asked to furnish the necessary
information at the earliest stage. The management
has not resorted to that course. The workman was not
expected to prove the negative. In these
circumstances, we do not think that it would be in
the interest of justice to prolong any further the
agony of the workman whose power to endure the
suffering of being out of employment for such a long
time and to oppose the management Bank, a
nationalised undertaking with all the money power at
its disposal in this prolonged litigation is very
limited by allowing the Bank to have the advantage
belatedly sought in the application dated February
8, 1979 in an industrial dispute which arose so
early as in 1965.

It is, undoubtedly, true when the question arises as

to whether the backwages is to be given and as to what is to

be the extent of backwages, these are matters which will

depend on the facts of the case as noted in Deepali Gundu


Surwase (supra). In a case where it is found that the

employee was not at all at fault and yet, he was visited

with illegal termination or termination which is actually

activised by malice, it may be unfair to deny him the fruits

of the employment which he would have enjoyed but for the

illegal / malafide termination. The effort of the Court

must be to then to restore the status quo in the manner

which is appropriate in the facts of each case. The nature

of the charges, the exact reason for the termination as

evaluated and, of course, the question as to whether the

employee was gainfully employed would be matters which will

enter into the consideration by the Court.

(11) As far as the present case is concerned, the reason

given by the High Court in the impugned order for denying

backwages clearly does not appeal to us. According to the

appellant, the appellant has indeed stated that he was not

working. The case of the respondent is that he was a

Chartered Accountant and that he was indeed earning. The

learned counsel for the appellant does not deny that the

appelant was indeed earning some amount from doing

accountancy related work and he had filed returns under the

Income Tax Act. This means as things stand before us, it is

a case where the appellant must be treated as not having

been without any income at all during the period. He was

earning. We have also, however, noticed that there was


hardly any worthwhile reason for the respondent to terminate

the services. The impugned order itself shows that there

was no basis for termination of the services of the

appellant. When the appellant was qualified and

particularly, when the appellant also has a case that all

this was done for the reason that he had taken up certain

issues relating to the manner in which the affairs of the

respondent was being run, we would think that the High Court

was in error in not making appropriate order relating to


(12) As regards the quantum of backwages, there are

conflicting claims. According to the respondent, if what is

described as performance allowance is not added, 100 per

cent of the backwages which the appellant would be entitled

to would be in the region of about Rs.66 lakhs. The

appellant’s claim is for over Rs.3 crores. However, he

would, after getting instructions from his client state that

the appellant may be given a sum of Rs.1.5 crores. He,

particularly, points out that this is without taking into

consideration the benefits of notional promotion.

We are not delving more into this issue as it is

stated that litigation relating to right to notational

promotion is pending consideration before the High Court.

(13) On a conspectus of all facts and circumstances, we are

of the view that the interest of justice would be


sufficiently served if we direct the appellant be paid a

total sum of Rs.80 lakhs as the backwages for the entire

period for which the termination operated. Accordingly, the

appeal is partly allowed. The impugned order is modified

and we direct the respondent to pay a sum of Rs.80 lakhs to

the appellant within a period of six weeks from today.

No orders as to costs.

…………………………………………………………………., J.

…………………………………………………………………., J.

New Delhi;
December 10, 2021.



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