Hon'ble Supreme Court while dealing with the subject in the matter of Airport Authority of

India and Others Vs. Shambhu Nath Das reported as 2008 III-LLJ-353 SC had held that
there was no justification whatsoever to grant any back wages on the general principle that
nobody could be directed to claim wages for the period that he remained absent without leave or
without justification

U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey 2005, the two Judge Bench
observed:
“No precise formula can be laid down as to under what circumstances payment of entire back
wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case.
It would, however, not be correct to contend that it is automatic. It should not be granted
mechanically only because on technical grounds or otherwise an order of termination is found to
be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act.”

Deepali Gundu Surwase vs Kranti Junior Adhyapak & Ors on 12 August, 2013
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 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).
 Shri Ish Kumar Pruthi Versus The DGM - LCA No. 17/2018 THE CENTRAL
GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT DELHI - 1 NEW
DELHI.
3. The management assailed the aforesaid award of the CGIT, before the Hon’ble High Court of
Delhi, in W.P. (C) No.9341/2004 & CM Application No. 8330/2004, 1972/2005 & 6726/2014.
The Hon’ble High Court of Delhi, passed therein its order dated 14.12.2017 and made it clear in
para 55 & 56 of the judgement that the workman is entitled to receive 75% of his back wages,
which is reproduced below :
“55. The question, then arises as to the quantum of “lump-sum compensation” that should be
awarded to the respondent. Given the fact that the respondent has not been serving the petitioner,
since the date of his dismissal from service, I am of the view that the interests of justice would be
subserved if the respondent were awarded 75% of the back wages to which he would be entitled
till the date of his superannuation (which, I am informed is 2 years hence). The wages payable to
employees of the petitioner – Bank are governed by the Bipartite Settlements, arrived at, from
time to time, between the Bank and the employees. In working out the back wages that would
have been payable to the respondent and consequently, 75% thereof periodical revisions of
wages payable, on the basis of Bipartite Settlement arrived at from time to time, would be taken
into account. At the same time, pursuant to interim orders passed by this court under Section 17-
B of the Act, a certain monthly amount has been paid to the respondent, by the petitioner.
Though the respondent has expressed his dissatisfaction therewith, in various interlocutory
applications that have been filed by him from time to time, it is not necessary to enter into the
said application now, in view of the order that is being passed today. Sufficient it to state that the
payment to be made to the respondent, as per this judgment, would be so made after deducting
the amounts paid to the respondent under Section 17-B of the Act. Further, in case the petitioner
is able to establish that the respondent has, at any point of time after his dismissal from service
by the petitioner, been in gainful employment, the amount earned by the respondent in the course
of such employment would also be deductible, while making payment to him in terms of this
judgment.
56. No further amount (including retiral benefits) would be payable to the respondent, apart from
the above”.

Prem Chand Versus The Management of M/s The Joint Director,

Writ Petition (Civil) No.950/2008, delhi high court
6. The same position has been reiterated by the Supreme Court in paragraph 56 of its decision in
U.P. State Brasware Corporation Ltd. Vs. Uday Narain Pandey 2006 1(SCC) 479). Reference
may also be made to a decision of a Division Bench of this Court in Pramod Kumar and Anr. Vs.
The Presiding Officer and Anr. 123 (2005) DLT 509 where also a plea taken by the petitioner that
the learned Single Judge ought to have directed reinstatement instead of merely awarding
compensation to the workman, was considered only to be rejected. It is in the light of these
pronouncements that the learned Labour Court has looked at the circumstances of the petitioner's
case. A reading of paragraphs 26 and 27 of the impugned award shows that in deciding to award
compensation instead of reinstatement, while the learned Labour Court was conscious of the fact
that compensation in lieu of reinstatement and back wages is now the norm, at the same time, it
has also considered the fact that the petitioner had worked with the management on a part time
basis for two hours on monthly wages of Rs.500/- per month for about six years. The Labour
Court has felt that since the petitioner was only a part time employee, working for only two
hours in a day with the management, therefore instead of reinstatement, compensation would be
a better alternative. It has therefore decided to award compensation of Rs.20,000/- to be paid to
the petitioner within one month of publication of the award failing which interest @ of 10%
would be payable to the workman. According to the Labour Court, this amount would be
sufficient to meet the ends of justice. A rough calculation will show that the Labour Court has in
fact directed payment of compensation equivalent to 40 months of earnings. To put it differently,
it has given him compensation amounting to the salary drawn over a period of three years, which
is also more than half of his tenure with his employer. It is noteworthy that Supreme Court in the
case of O.P. Bhandari Vs. Indian Tourism Development Corporation Ltd. (1986) 4 SCC 337 held
that compensation equivalent to 3.33 years' salary (including allowances) as admissible on the
basis of last pay and allowances would be a reasonable amount to award in lieu of reinstatement.
In that case, the Court has taken into consideration the fact that the corpus, if invested at
prevailing rate of interest, will yield 50% of the annual salary and allowances and the workman
would get 50% of what he would have earned by way of salary and allowances with four
additional advantages: (i)He will be getting this amount without working
(ii)He can work somewhere else and can earn annually whatever he is worth over and above,
getting 50% of the salary he would have earned.
(iii)If he had been reinstated, he would have earned the salary upto the date of superannuation
(upto 55, 58 or 60 as the case may be) unless he died earlier. As against this, he would be getting
the aforesaid 50% annually till he dies, regardless of his superannuation, after his demise, his
heirs would keep getting it in perpetuity.
(iv)The corpus of lump sum compensation would remain intact, in any event. This was also
reiterated in the case of Workmen Vs. Bharat Fritz Werner (P) Ltd. And Anr. (1990) 3 SCC 565.
Thus, I do not find that the decision taken by the Labour Court in this regard is in any way
perverse or arbitrary nor do I feel that it has occasioned any failure of justice. A Writ Court is not
exercising appellate jurisdiction and the scope for interference is very limited. Reference in this
regard may also be had to the cases of Syed Yakoob Vs. K.S.Radhakrishnan AIR 1964 SC 477
where it was observed that; There is, however, no doubt that the jurisdiction to issue a writ of
certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an
appellate court. This limitation necessarily means that findings of fact reached by the inferior
Court or Tribunal as a result of appreciation of evidence cannot be reopened or questioned in writ
proceedings. In the case of State Bank of Bikaner and Jaipur Vs. Om Prakash Sharma (2006) 5
SCC 123, the Supreme Court held that the High Court cannot sit in appeal over the award of the
Labour Court, but jurisdictional errors can be corrected while exercising power of judicial
review. Similarly, in Apparel Export Promotion Council Vs. A.K.Chopra (1999) 1 SCC 759 it
was observed that since the High Court does not sit as an appellate authority over the factual
findings recorded during departmental proceedings, while exercising the power of judicial
review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to
the guilt of the delinquent for that of the departmental authorities. Furthermore, in the case of
Govt. of A.P. And Others Vs. Mohd. Nasrullah Khan (2006) 2 SCC373 paragraph 11 states as
follows: 11. By now it is well established principle of law that the High Court exercising power
of judicial review under Article 226 of the Constitution does not act as an appellate authority. Its
jurisdiction is circumscribed and confined to errors of law or procedural error, if any, resulting in
manifest miscarriage of justice or violation of principles of Natural Justice. Judicial review is not
akin to adjudication on merit by re-appreciating the evidence as an appellate authority.

In U.P. State Brassware Corporation Ltd & others Vs. Uday Narain Pandey, (2006) 1 SCC
479 in peculiar facts and circumstances of the case only 25% total back wage was held to be
payable for a period w.e.f. 1.4.1987 to 26.3.1993. In para 63 of the aforesaid decision the
Apex Court held as under:
"63. The only question is whether the Respondent would be entitled to back wages from the date
of his termination of service till the aforementioned date. The decision to close down the
establishment by the State of Uttar Pradesh like other public sector organizations had been taken
as far back on 17.11.1990 wherefor a GO had been issued. It had further been averred, which has
been noticed hereinbefore, that the said GO has substantially been implemented. In this view of
the matter, we are of the opinion that interest of justice would be subserved if the back wages
payable to the Respondent for the period 1.4.1987 to 26.3.1993 is confined to 25% of the total
back wages payable during the said period."

Shri Rumal Singh vs Delhi Transport Coporation & Ors. on 19 November, 2020
10. The counsel for the appellant, in the memorandum of appeal has inter alia pleaded that the
respondent DTC did not comply with the award dated 7th January, 2000 and reinstated the
appellant in service only with effect from 1st March, 2002 and that the appellant has received
25% back wages as awarded by the Labour Court till the date of the award and 100% wages
from the date of the award till the date of reinstatement, from the respondent DTC.