Flight Couriers Ltd. Vs. Madan Lal  INSC 373 (5 March 2008)
A.K.MATHUR & ALTAMAS KABIR O R D E R (Arising out of SLP(C) No.6346 of 2006) We have heard learned
counsels for the parties.
This appeal by special leave is directed against the judgment and order
dated 19th December, 2005 passed by the High Court of Punjab and Haryana at
Chandigarh in Civil Writ Petition No.19680 of 2005 whereby the Division Bench
has upheld the Award passed by the Labour Court and found that the respondent
has been wrongly terminated in violation of Section 25-F of the Industrial Disputes Act, 1947.
The Labour Court has granted reinstatement with full backwages by the Order
dated 16th September, 2005.
Aggrieved against this, the appellant challenged the same before the High
Court and the High Court affirmed the order of the Tribunal. Hence the present
A notice was issued by this Court on 17th April, 2006 confined to the
question of payment of full back ...2/- -2- wages. Learned counsel for the
appellant submitted that the respondent is not entitled to full back wages as
he has to plead and prove that he was not gainfully employed. There is no such
averment made by the workmen either before the Labour Court or in any
proceedings that he was not gainfully employed.
Learned counsel for the appellant has invited our attention to the decision
of this Court titled Kendriya Vidyalaya Sangathan and another versus S.C.Sharma
reported in 2005 (2) SCC 363 wherein this Court has held that the initial
burden is on the employee, he has to show that he was not gainfully employed.
It is thereafter that the employer can bring on record the material to rebut
the claim of the employee. In that case also the employee has neither pleaded
nor placed on record any material in that regard. Therefore, this Court has
held that the incumbent is not entitled to full back wages. Similarly in
present case also there is no such averment made by workman.
Learned counsel for respondent invited our attention to the decision of this
Court titled U.P. SRTC Ltd. versus Sarada Prasad Misra and another reported in
2006 (4) SCC 733 in which this Court has observed that what should be the
backwages depends upon case to case and no hard and fast rule can be laid down.
In this case, ...3/- -3- this Court has observed that the incumbent is
entitled to 50% of the back wages from the date of the Award till the date of
Having regard to the facts and circumstances of the case, we are of the
opinion that the ends of justice would be met by giving the respondent 50% of
the back wages from the date of the termination till the date of the Award.
Learned counsel for the respondent submits that the incumbent has not been
reinstated despite his appearing before the authorities. For that relief, he
can approach the appropriate forum.
The appeal is accordingly, disposed of.