Is a government servant entitled to 100% back wages if acquitted for cruelty upon his wife upon compromise?

 

 In the present case, respondent is not acquitted on merits. His

acquittal is attributable to compromise with his wife. Petitioner-State therefore cannot be saddled with the liability to pay salary and allowances during the period when respondent remained under dismissal. He incapacitated himself from performing duties owing to his conviction. It is also pertinent to note that respondent’s conviction was upheld even by the appellate court. This further prolonged the period of his dismissal. in such

circumstances it is highly debatable whether any back wages were payable to Respondent. Nonetheless the State Government decided to pay 50% salary and allowances to him during the intervening period. However, to expect payment of 100% salary and allowances during that period would be highly undesirable. Respondent had involved himself in a criminal case arising out of his private affairs unconnected with performance of his duties.

He kept himself away from his duties on account of his conviction. In such circumstances there is no question of payment of full salary and allowances to the respondent. {Para 16}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE CIVIL JURISDICTION

WRIT PETITION NO. 2470 OF 2018

The State of Maharashtra  Vs Shri Surendra G. Ghodake 

CORAM : S. V. GANGAPURWALA, ACJ &

SANDEEP V. MARNE, J.

DATE : 8th MARCH, 2023.

JUDGMENT : (PER - SANDEEP V. MARNE, J.)

Citation: 2023 Lawweb (Bom HC ) 14.

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What are basic principles for determining backwages to be paid to workman?

Add caption

 Further, in General Manager, Haryana
Roadways v. Rudhan Singh [(2005)5 SCC
591], the three Judge Bench of this
Court considered the question whether
back wages should be awarded to the
workman in each and every case of
illegal retrenchment. The relevant
paragraph reads as under:
“There is no rule of thumb that in
every case where the Industrial
Tribunal gives a finding that the
termination of service was in
violation of Section 25-F of the Act,
entire back wages should be
awarded. A host of factors like the
manner and method of selection and
appointment i.e. whether after
proper advertisement of the vacancy
or inviting applications from the
employment exchange, nature of
appointment, namely, whether ad
hoc, short term, daily wage,
temporary or permanent in character,
any special qualification required for
the job and the like should be
weighed and balanced in taking a
decision regarding award of back
wages. One of the important factors,
which has to be taken into
consideration, is the length of
service, which the workman had
rendered with the employer. If the
workman has rendered a
considerable period of service and his
services are wrongfully terminated,
he may be awarded full or partial
back wages keeping in view the fact
that at his age and the qualification
possessed by him he may not be in a
position to get another employment.
However, where the total length of
service rendered by a workman is
very small, the award of back wages
for the complete period i.e. from the
date of termination till the date of
the award, which our experience
shows is often quite large, would be
wholly inappropriate.
Another important factor, which
requires to be taken into
consideration is the nature of
employment. A regular service of
permanent character cannot be:60:
compared to short or intermittent
daily- wage employment though it
may be for 240 days in a calendar

year.”

IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 40 OF 2004
The Goa Urban Co-op. Bank Ltd.,
V e r s u s
Mr. Rui A. E. Ferreira
CORAM : F. M. REIS, J
DATE : 21st July, 2014
Citation;2015(7) ALLMR 388

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Basic principles for grant of back wages in case of setting aside of wrongful termination of employee

 In the case of Deepali (Supra) the appellant was working as a
teacher in a primary school, who was proceeded against departmentally on

charges of insubordination etc. and was placed under suspension and was
subsequently terminated. The School Tribunal found action of the
Management wholly arbitrary and vitiated due to violation of principles of
natural justice. The School Tribunal also took cognizance of the fact that
the appellant was not gainfully employed and this aspect was not
controverted by the Management. The School Tribunal, in such
circumstances, ordered her reinstatement with full back wages. That order
was modified by a learned Single Judge of this Court as regards payment of
the back wages. That was the order which was subject matter of challenge
before the Hon'ble Supreme Court. It has been inter alia held that, as a
normal rule an employee becomes entitled to reinstatement with back
wages, once the dismissal/termination, is found to be illegal. After taking
survey of the various decisions, the Hon'ble Apex Court has culled out the
following principles on the question of grant of back wages.
“(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 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.
(iv) The cases in which the Labour
Court/Industrial Tribunal exercises power under
Section 11A
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 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 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 Article 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 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
wages.
(vi) 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
visavis
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 illafford
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. (1979) 2 SCC 80.
(vii) The observation made in J.K. Synthetics
Ltd. case, (2007) 2 SCC 433 that on reinstatement the
employee/workman cannot claim continuity of service as of
right is contrary to the ratio of the judgments of threeJudge
Benches and cannot be treated as good law. This part
of the judgment is also against the very concept of
reinstatement of an employee/workman.”
It can thus be seen that it is the normal rule to grant back
wages/salary once the Court/Tribunal awards reinstatement. However, this
normal rule is subject to wellknown
exceptions and there is a discretion in
the matter of grant of back wages/salary. Albeit such a discretion is judicial
in nature and has to be exercised in the facts and circumstances of each
case and no straitjacket
formula can be laid down. In the case of Upekshit
Samaj Kalyan Samiti, Ballarpur...Versus...Education Officer (Secondary)
and others, reported in (2009) 15 SCC 194, the Hon'ble Apex Court had
restricted the back wages to 50%, while in the case of South Bengal State
Transport Corporation...Versus...Ashok Kumar Ghosh and others,
reported in (2010) 11 SCC 71 it was held that, where the punishment was

set aside on a technical ground, the back wages could not be granted and

were accordingly denied.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.4732/2003

 Dnyanshwar  Vithuji Ghude Vs  State of Maharashtra,
CORAM
: A.P. BHANGALE AND
C.V. BHADANG, JJ.
Date of pronouncing the judgment : 01.10.2014
Citation;2015(2) ALLMR 647

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