U.P.State Handloom Corporation Ltd v. Dinesh Mishra and Another

Reserved on 24.09.2026 Delivered on 30.09.2026 HIGH COURT OF JUDICATURE AT ALLAHABAD WRIT - C No. - 53967 of 2012 …..Petitioner(s) Versus Dinesh Mishra and another …..Respondent(s) Court No. - 36 HON'BLE SAURABH SHYAM SHAMSHERY, J.

¶1This is a writ petition of the year 2012 being filed by Petitioner-U.P. State Handloom Corporation Ltd. against an award dated 24.05.2012 passed by Presiding Officer, Labour Court, Kanpur in Adjudication Case No. 103 of 2005, whereby it was held that retrenchment list issued by petitioner Employer was defective and retrenchment of contesting-respondent vide order dated 25.04.2004 was declared completely irregular and illegal and it was directed that U.P. State Handloom Corporation Ltd. Counsel for Petitioner(s) : D.P. Singh, Manohar Prasad Gupta, Shiv Nath Singh, Vaibhav Tripathi, Vivek Kumar Birla Counsel for Respondent(s) : B.N. Singh, Krishna Nand, Prakash Chandra Pathak, Rahul Pandey, Rang Nath Pandey, Sandeep Kumar Shrivastava, Satish Chandra Dubey, Shailendra Kumar Gupta, Shashi Kumar Dwivedi he shall be reinstated with continuity and entire back wages and other benefits. Relevant part of award is reproduced hereinafter: "

मैनेपत्रावलीकाअवलोकनकियाएवंपक्षोंद्वाराप्रस्तुततकोंपरविधिवतविचार

कियागया।

पत्रावलीकेअवलोकनवपक्षोंकेतर्कोंसेस्पष्टहैकि वादीश्रमिककीनियुक्ति दि० 12-9-1985

कोदैनिकवेतनभोगीटंकककेपदपरकीगयीथीऔरउसीपदपरआदेश

दि०18-3-1987

केद्वारादि0 1-2-1987

सेउसकीसेवायेंनियमितकरतेहुयेटंककका

वेतनमानदियागयाथाऔरवादीलगातारछटनीकेपूर्वदि०25-4-2004

तकअबाधित

कामकरतारहाहै।नियुक्ति केसंबंधमेंआदेशदि०12-9-1985 व18-3-1987 को

दाखिलकियागयाहै।अबमात्रयहविवादितहैकि वादीकीछटनीउ०प्र०औद्योगिकविवाद

अधिनियम1947

केप्राविधानोंकेतहतकीगयीहैयानहीं।नियमानुसारछटनीकरतेसमय

फस्टकमलास्टगोकाप्राविधानलागूहोताहै।अबयहदेखाजानाहैकि क्याउनलोगोंको

कामपरबनायेरखतेहुयेबादीकीछटनीकरदीगयीहैजोउसकेबादमेंनियोजनमेंआये

हैं।इससंबंधमेंवादीद्वारादाखिलप्रदर्शडब्लू-9

जोकार्यालयज्ञापदि०23-7-1998 है

तथाजिसकेसाथकर्मचारियोंकीबरिष्ठतासूची/

कोटिक्रमभीसंलग्नहैमेंवादीकानाम

क्रमसं04

परहैऔरउसकीनियुक्ति तिथि 1-2-1987

लिखीगयीहैजबकि कार्यालयज्ञाप

केअनुसार"

सर्वप्रथमवर्तमानपदपरकार्यभारग्रहणकरनेकीतिथि केअनुसार" ही

नियुक्ति तिथि मानेजानेकाप्राविधानदियागयाहै।इसकेअनुसारवादीकीनियुक्ति टंकक

पदपरदैनिकवेतनपरदि०12-09-1985

कोहुईथीजिसकेअनुपालनमेंवादीद्वारादि० 17-9-1985

कोयोगदानआख्याप्रस्तुतकीगयीथीउसकेपश्चातवादीद्वाराकभीभी

योगदानआख्यानहींप्रस्तुतकीगयीहै।वादीनियोजनकीतिथि सेसेवासमाप्ति कीतिथि

तकटंकककेपदपरहीरहाहैऔरटंकककाहीकार्यकरतारहाहै,

अतःप्रदर्शडब्लू-9 के

आधारपरवादीकीप्रथमनियुक्ति तिथि 17-9-1985

हीमानीजानीचाहिये।प्रदर्शडब्लू-9

हीप्रदर्शडब्लू-21

हैजिसेसेवायोजकसाक्ष्यद्वारास्वीकारकरनेकेबादप्रदर्शितकियागया

है।वादीकीसेवायेंसमाप्तकरपुनःउसेनयानियोजननहींप्राप्तकरायागयाथाबल्कि

18-3-1987

केआदेशसेलगभगडेढमाहपूर्वसेहीदि०1-2-1987

सेनियमितकिया

गयाहै,

इससेभीस्पष्टहैकि वादीकानियोजनदिनाँक17-9-1985

सेआदेशदि०18-3-1987

तकअबाधितरहाहै।

सेवायोजकोंकायहतर्कहैकि वादीद्वाराकोईकोटिक्रमसूचीयाछटनीसूचीके

आधारपरकोईआपत्तिनहींप्रस्तुतकीगयीथीऔरछटनीकोउसकेद्वारास्वीकारकरते

हुयेछटनीकीधनराशि प्राप्तकरलीगयीहै।इससंबंधमेंसेवायोजकोंद्वाराकोईऐसा WritoCoNo.o53967oofo2012 प्र मै �णoने है 9oप्र स् तु �तु oकि का या �oगया �oकि का oव�दी �oद्वा �रा �oका �कि टं oक्र मै oसे 3चा �oवoछटं ने �oसे 3चा �oका �oका �ईoकि वरा ��o ने है 9oकि का या �oगया �oजा बा कि का oव�दी �oद्वा �रा �oका �कि टं oक्र मै oसे 3चा �oका �oकि वरा ��oवoछटं ने �oसे 3चा �oका �oकि वरा ��oपत्रा o तु थी �oछटं ने �oका � oबा �दी oभो �oछटं ने �oका �oकि वरा ��oपत्रा oदि दी या �oगया �oथी �oजा �oप्र दी शo4 इब् ली 3-o14,o15,o16,o17o व.o18oहै �।oअपने �oका थी ने oका � oसे मै थी ने4 oमै �oव�दी �oद्वा �रा �oसे �व�या �जा का �oसे �oप्र �प्ति Mतु oरा जि जा स् टं रा oतु ली बा oका रा �या � o गया �oथी �oजि जा से �oउन् है ��ने �oरा जि जा स् टं रा oने oबा ने �या �oजा �ने �oका � oआ��रा oपरा oप्र स् तु �तु oने है 9oकि का या �oजा बा कि का oउने का � o गव�है oद्वा �रा �oया है oस् व�का �रा oकि का या �oगया �oहै �oकि का oएमै ०डY०oका � म् पoका �या �ली4 या oमै �oड�का oप्र �Mतु oका रा ने �oका �o रा जि जा स् टं रा oहै �तु �oथी �oऔरा oड�का oरा जि जा स् टं रा oपरा oचा ढका रा oहै �oएमै ०डY०oका � oप�से oजा �तु �oथी �।oव�दी �oदि दी ने �Uका o 21-4-2004oका �oव्य क्ति 'तु गतु oरू पoसे �oआपलि Voप्र �Mतु oका रा �या �oथी �oऔरा oरा जि जा स् टं रा oपरा oक्र मै oसे �085o परा oउसे �oप्र �Mतु oकि का या �oगया �oथी �।oसे �व�या �जा का ��oद्वा �रा �oया है oभो �oस् व�का �रा oकि का या �oगया �oहै �oकि का oव�दी �oका �o आपलि Voप्र �थी ने4 �oपत्रा oश�से ने oसे �oप्र �Mतु oहु आoथी �oजि जा से का �oउVरा oश�से ने oका �oभो �जा oदि दी या �oगया �oथी �o परा न् तु �oउने का � oद्वा �रा �oव�दी �oका � oकि वरा ��oपत्रा oका �oदी �खि 7ली oने है 9oकि का या �oगया �oहै �।oउपया '�4 तु oल्कि स् थी धि तु oमै � o से �व�या �जा का ��oका �oया है oका है ने �oकि का oव�दी �oद्वा �रा �oआपलि Voने है 9oका %oगया �oथी �oअसे �त् या oएवoकि ने रा ���रा oहै �।o से �व�या �जा का �oका �oया है oका थी ने oकि का oव�दी �oद्वा �रा �oछटं ने �oमै आ� वजा �oप्र �Mतु oका रा oलि ली या �oगया �oथी �oइसे लि ली या � o उसे का � oप्र �थी ने4 �oपत्रा oपरा oकि वचा �रा oकि का या �oजा �ने �oका %oआवश् या का तु �oने है 9oथी �।oया है oका थी ने oप�धि ष्ट oका रा तु �oहै � o कि का oव�दी �oद्वा �रा �oछटं ने �oका �oकि वरा ��oकि का या �oगया �oथी �oऔरा oव�दी �oने �oप्र दी श4oडब् ली 3-15,16oद्वा �रा �oछटं ने �o का �oभो �oकि वरा ��oका रा तु �oहु या �oभो ग� तु �ने oका %o�ने रा �लि शoव�पसे oकि का या �oजा �ने �oका %oबा �तु oभो �oका है �oहै �। व�दी �oद्वा �रा �oया है oतु थ् या oभो �oउजा �गरा oकि का या �oगया �oहै �oकि का oएका oहै �oसे मै या oमै �oका �या �ली4 या o से है �या का oवoसे �Sसे oमै �ने oका �oव�तु ने मै �ने oने है �oदि दी या �oजा �oसे का तु �oहै �,o'या ��कि का oदी �ने ��oअली ग-अली गo व�तु ने मै �ने oका � oपदी oहै �oऔरा oका �कि टं oक्र मै oसे 3चा �oका � oक्र � मै �का o42oपरा oअवने �शoचा न् द्र oश्र �व�स् तु वoका �o का �या �ली4 या oसे है �या का oदी श�4या �oगया �oहै �oऔरा oकि ने या क्ति� 'तु oधि तु धि थी o1-2-1987oलि ली 7�oहै �।oइसे oसे 3चा �oका � o प्र दी श4oडब् ली -3 9oवoप्र दी श4oडब् ली 3-21oसे �oस् पष्ट oहै �oकि का oश्र �oअकि वने �शoचा न् द्र oश्र �व�स् तु वoका %oकि ने या क्ति� 'तु o1-2-1987oका �oहु ईoथी �oजा बा कि का oव�दी �oदि दी ने �Uका o17-09-1985oसे �oली ग�तु �रा oका �या रा4 तु oहै �,oउपया '�4 तु o कि वव�चा ने �oसे � oप�ष्ट oहै �तु �oहै �।oसे �व�या �जा का �oद्वा �रा �oअपने � oका थी ने oका � oसे मै थी ने4 oमै � oया �oसे 3चा �oका %o प्र मै �जि णका तु �oका � oसे �बा � oमै �oका �ईoभो �oअलि भो ली �7oया �oमै aखि 7का oसे �क्ष या oने है 9oप्र स् तु तु� oकि का या �oगया �oजा बा कि का o व�दी �oद्वा �रा �oया है oका है �oगया �oहै �oकि का oअवने �शoचा न् द्र oश्र �व�स् तु वoका %oछटं ने �oने oका रा oका � oउन् है �oका �या 4oपरा o बा तु �या �oरा 7�oगया �oहै �।oइसे oका �कि टं oक्र मै oसे 3चा �oका �oसे �श�धि �तु oका रा ने �oया �oप�ने Noवरि रा ष्ठ तु �oसे 3चा �oने oजा �रा Yo कि का या �oजा �ने �oका %oबा �तु oसे �व�या �जा का oसे �क्ष या oद्वा �रा �oस् व�का �रा oकि का या �oगया �oहै �oजा बा oकि का oकि ने या मै �ने �से �रा o फ�इने ली oवरि रा ष्ठ तु �oसे 3चा �oकि वभो �गoद्वा �रा �oतु �या �रा oका %oजा �ने �oचा �कि है या �oथी �।oसे �व�या �जा का ��oद्वा �रा �oछटं ने �oका %o से 3चा �oत्रा कि� टं प3ण4oहै �।oछटं ने �oसे 3चा �oत्रा कि� टं प3ण4oहै �ने �oका %oबा �तु oइसे �oन् या �या �ली या oद्वा �रा �oप3व4oमै � oमै �रा � o प3व�4धि �का �रा Yoद्वा �रा �oप�रि रा तु oअलि भो कि ने णया4 oव�दी oसे �0319/2005oवo94/2006oका � oएव�ड4oमै �oभो �oका है �o गया �oहै �।oव�दी �oश्र धि मै का oमै �०oउच् चा oन् या �या �ली या ,oइली �है �बा �दी oद्वा �रा �oदी �oगया �oकि वधि �oव्य वस् थी �oजा �oउ०प्र ०o औ०कि व०अधि �01947oका %o��रा �o6प�oका �oकि वधि �वतु coप�ली ने oकि का या �oकि बा ने �oका %oगया �oछटं ने �oअव� o

मानीजायेगीकेसंबंधमेंहै,

प्रस्तुतकीगयीहैजोमा०उच्चन्यायालय,

इलाहाबादकी

लखनऊबेंचद्वारा2009 (121)

एफ०एल०आर०पृ०79

चन्द्रपालसिंहबनामउ०प्र०राज्य

एंवअन्यरिटपिटीशननं06484/02

है।इसीप्रकारअपनेकथनकेसमर्थनमेंमा०बाम्बे

उच्चन्यायालय2007 (114)

एफ०एल०आर०पृ०990

बाबूभीकाजीशिन्देबनाममहाराष्ट्र

स्टेटहैन्डलूमकारपोरेशनलि०एंवअन्यरिटपिटीशनसं०678/1991

वमा०उच्चतम

न्यायालय2009 (120)

एफ०एल०आर०पृ०143

कानपुरइलेक्ट्रिकसप्लाईकं०लि०बनाम

शमीममिर्जासिविलअपीलसं06585/2008

मेंप्रतिपादितविधि व्यवस्थाउद्धृतकीहै

जिससेमैसहमतहूँ।

उपर्युक्तविवेचनाकेआधारपरमैंइसनिष्कर्षपरपहुँचताहूँकि सेवायोजकोंद्वारा

जारीछटनीसूचीत्रुटिपूर्णहैऔरइससूचीकेआधारपरवादीकीनियुक्ति तिथि 1-2-1987

मानतेहुयेकीगयीछटनीअवैधानिकहै,

अतःदिनॉक25-4-2004

सेछटनीकेरूप

मेंवादीदिनेशकुमारमिश्राकीकीगयीसेवासमाप्ति पूर्णतयाअनुचितएंवअवैधानिक

घोषितकीजातीहै।सेवायोजकवादीश्रमिककोसेवाकीअखण्डताकेसाथबेकारीअवधि

कासम्पूर्णवेतनवअन्यहितलाभोंसहितकार्यपरबहालकरें।सेवायोजकवादीकोभुगतान

कीगयीछटनीकीधनराशि मेंबेकारीअवधि केवेतनवअन्यहितलाभोंकोसमायोजित

करतेहुयेभुगतानकरनासुनिश्चितकरें।इसकेअतिरिक्तसेवायोजकवादीप्रतिनिधि को रू01000/-

वादपरिव्ययकेरूपमेंपृथकसेभुगतानकरें।"

¶2Sri Vaibhav Tripathi, learned counsel for petitioner and Sri Satish Chandra Dubey, learned counsel for contesting-respondent, have submitted various arguments as well as referred pleadings, however, the Court is of the view that similar nature of awards were challenged before this Court earlier wherein two different types of orders were passed.

¶3The first judgment was passed by a Coordinate Bench of this Court in U.P. State Handloom Corporation Ltd. Kanpur Thru M.D. and another vs. Presiding Officer Labour Court U.P. Lucknow and another, 2023:AHC-LKO:19838 whereby the writ petition filed by petitioner was partly allowed and award challenged therein was modified to the extent that order of setting aside retrenchment was not interfered but a direction of lump sum compensation of Rs. 2 lacs towards back wages, instead of full back wages, was passed. The relevant part of said judgment is reproduced hereinafter: "19. This Court on consideration of the award passed by the respondent no.1, finds that it is cryptic in nature. However, on looking to the evidence before the respondent no.1, this Court is of the opinion that the retrenchment order was incorrectly passed without following the principle as given under Section 6(P) of the U.P. Industrial Disputes Act. The State Government had issued an order on 18.03.2004 directing the principle of 6(P) of ''last come and first go' to be strictly followed by the Corporation while preparing the list of employees to be retrenched. It had also been specifically mentioned that the quota of reserved category candidates/ Roster must be maintained and only the juniors employees and unreserved category incumbents may be retrenched. As such, this Court finds that the reasoning as given in the Award dated 27.08.2018 to be unimpeachable.

¶20This Court has however also found from a perusal of documents filed before the Tribunal that the respondent no.2 had not stated anywhere that he was not gainfully employed. He had been given retrenchment compensation also for rendering almost thirty years of service. The Corporation was in a pitiable financial condition and therefore had to retrench its employees. At present less than 94 employees are working in the Corporation and it is on the verge of closure. The claim petition was filed in 2010 and has been decided in 2018. Before filing of the claim, the petitioner had filed a complaint before the U.P. State Backward Classes Commission and thereafter filed a Writ Petition and Special Appeal and also Claim petition before the U.P. State Public Services Tribunal. He may have had to do so and this Court cannot take any adverse view only because the respondent no.2 had approached different fora before approaching the Labour Court, but since there was no pleading on record on the basis of which it could be said that the respondent no.2 was entitled to entire back wages on setting aside of the retrenchment order, the direction for setting aside the retrenchment order with consequential benefits reinstatement with full back wages appears to be unreasoned and against the law settled by the Hon'ble Supreme Court. The ordinary principle of grant of retrenchment with full backwages, when termination is found to be illegal is not to be applied mechanically in all cases while what may be the position where services of a regular / permanent workman are terminated illegally and / or malafide and / or by way of victimisation, unfair labour practice etc. However, the Labour Court has wide discretion in granting relief when setting aside termination. It may look into the surrounding circumstances.

¶21The direction issued by the respondent no.1 for reinstatement with back wages could not have been issued as the Corporation was already incurring losses and this fact had come to the notice of the respondent no.1 and the respondent no.1 could have set aside the retrenchment order and structured the relief in such a manner as not to create additional financial burden of reinstatement when the Corporation was on the verge of closure. On facts, lump sum compensation for wrong retrenchment would have been the appropriate relief. (Reference, Hari Nandan Prasad and another vs. Employer FCI - 2014 (7) SCC 190; BSNL vs Bhurumal - 2014 (7) SCC 177; Incharge Office and another vs. Shankar Shetty - 2010 (9) SCC 126)

¶22Hence, this writ petition is partly allowed and the Award dated

27.08.2018 is modified to the extent that while the order of setting aside retrenchment is not being interfered with, a lump sum compensation of Rupees Two lakhs may be given to the respondent no.2 by the Corporation instead of back wages and reinstatement.

¶23The lump sum compensation shall be given by the petitioner to the respondent no.2 within a period of three months from today. In case of failure to do so, the respondent no.2 shall be entitled to get interest @ 6% per annum with effect from today till the date of actual payment of compensation."

¶4Second judgment was passed by another Coordinate Bench of this Court in M/D UP State Handloom vs. Smt. Meena Devi, 2024:AHC:6695 whereby impugned award was set aside but instead to grant one time lump sum compensation matter was remanded to Labour Court to decide afresh. It appears that above referred judgment in U.P. State Handloom Corporation Ltd. Kanpur Thru M.D. (supra) was not placed before Coordinate Bench, who has decided matter in Meena Devi (supra). Relevant part of judgment in Meena Devi (supra) is reproduced hereinafter: "8. The Court has perused the records.

¶9Admittedly, it is not in dispute that respondent-workman was appointed in the petitioner's corporation and the stand of the petitioner is that the respondent was appointed vide letter dated 30.08.1994 and on perusal of the said letter, it reveals that the appointment was not made in dying in harness basis, but the respondent-employee was appointed as a regular employee. It is also not in dispute between the parties that due to financial crunch as well as withdrawal of the subsidy by the Government on control items, the financial position of Handloom Corporation was gone to the extent that it was not in a position to pay the salary to its employees. It is also not in dispute that the State Government as well as Central Government took a decision to rehabilitate the Handloom Corporation by implementing the 'Deen Dayal Hathkargha Protsahan Yojana' and in pursuance of the said rehabilitation scheme, decision was taken for retrenchment of its employees, including the respondent-employee. A tentative seniority list was prepared and the objection was called, if any, and thereafter, the final seniority list was prepared, which was also published in the daily newspaper. Further, the principle of last come first go' for retrenchment was adopted after following the due process of retrenchment, the respondent-workman was retrenched.

¶10The record further reveals that the respondent-workman has accepted their compensation of retrenchment as well as other dues and the same was credited to her bank account without raising any objection, but subsequently, the dispute has been raised taking other ground as well as one of the grounds was that the respondent-workman was appointed in dying in harness and therefore, her services cannot be terminated within ten years of the appointment, hence in view of the said ground, the impugned order was passed. The fact that the appointment letter was issued on 30.04.1994, which has not been considered while passing the award wherein no such condition has been mentioned that the appointment of the respondent-workman has been made in dying in harness and this vital appointment letter has been overlooked by the authorities while passing the impugned award and therefore, the impugned award cannot sustain in the eye of law.

¶11In view of the facts as stated above, the impugned award is set aside the matter is remanded to decide afresh within four months after hearing all the stakeholder, without granting any unnecessary adjournment to either of the party. 12. Accordingly, the writ petition is allowed."

¶5In the present case also, contesting-respondent has accepted retrenchment compensation without any protest or objection. An issue, whether said respondent has opposed seniority list was dealt by Labour Court and a finding was returned that objections were filed. The contesting-respondent was initially appointed as a Daily Wager on 12.09.1985 and regularized vide order dated 18.03.1987 and according to him he has continuously worked thereafter till

25.04.2005 when he was retrenched after accepting retrenchment compensation.

¶6The case of respondent-workman was that since objections were made to seniority list and workmen who were junior were not retrenched, therefore, only on ground that he has accepted retrenchment compensation, his retrenchment cannot be justified.

¶7Contesting-respondent has declared his age as 52 years when a counter affidavit was filed on his behalf in the month of November, 2012, therefore, presently he has already crossed age of superannuation. As such, the order of reinstatement cannot be implemented and now the only issue is with regard to monetary benefit, if any.

¶8In this regard the Court takes note of a judgment passed by this Court in the case of Uttar Pradesh State Road Transport Corporation vs. Sri Chhotelal and another, 2026:AHC:168675 and relevant part thereof is reproduced hereinafter: "9. Supreme Court in a recent judgment of Maharashtra State Road Transport Corporation vs. Mahadeo Krishna Naik, 2025 INSC 218 has considered above referred issue wherein after taking note of various earlier judgments on the issue, held as follows :- "43. We cannot but endorse our wholehearted concurrence with the views expressed in the aforesaid decisions. Taking a cue therefrom, it can safely be concluded that ordering back wages to be paid to a dismissed employee - upon his dismissal being set aside by a court of law - is not an automatic relief; grant of full or partial back wages has to be preceded by a minor fact-finding exercise by the industrial adjudicator/court seized of the proceedings. Such exercise would require the relevant industrial court or the jurisdictional high court or even this Court to ascertain whether in the interregnum, that is, between the dates of termination and proposed reinstatement, the employee has been gainfully employed. If the employee admits of any gainful employment and gives particulars of the employment together with details of the emoluments received, or, if the employee asserts by pleading that he was not gainfully employed but the employer pleads and proves otherwise to the satisfaction of the court, the quantum of back wages that ought to be awarded on reinstatement is really in the realm of discretion of the court. Such discretion would generally necessitate bearing in mind two circumstances : the first is, the employee, because of the order terminating his service, could not work for a certain period under the employer and secondly, for his bare survival, he might not have had any option but to take up alternative employment. It is discernible from certain precedents, duly noticed in Deepali Gundu Surwase (supra), that the courts are loath to award back wages for the period when no work has been performed by such an employee. Such a view is no doubt debatable, having regard to the ratio decidendi in Hindustan Tin Works (P) Ltd. (supra), Surendra Kumar Verma (supra) and Deepali Gundu Surwase (supra). Though the latter decision was cited before the coordinate bench when it decided Phool Chand (supra), any thoughtful discussion appears to be absent.

¶44There is one other aspect that would fall for consideration of the court. In certain decisions, noticed in Deepali Gundu Surwase (supra), it has been opined that whether or not an employee has been gainfully employed is within his special knowledge and having regard to Section 106 of the Evidence Act, 1872, the burden of proof is on him. What is required of an employee in such a case? He has to plead in his statement of claim or any subsequent pleading before the industrial tribunal/labour court that he has not been gainfully employed and that the award of reinstatement may also grant him back wages. If the employee pleads that he was not gainfully employed, he cannot possibly prove such negative fact by adducing positive evidence. In the absence of any contra-material on record, his version has to be accepted. Reference in this connection may be made to Section 17-B of the Industrial Disputes Act, 1947, which confers a right on an employee to seek "full wages last drawn" from the employer while the challenge of the employer to an award directing reinstatement in a higher court remains pending. There too, what is required is a statement on affidavit regarding non-employment and with such statement on record, the ball is in the court of the employer to satisfy the court why relief under such section ought not to be granted by invoking the proviso to the section. We see no reason why a similar approach may not be adopted. After the employee pleads his non-employment and if the employer asserts that the employee was gainfully employed between the dates of termination and proposed reinstatement, the onus of proof would shift to the employer to prove such assertion having regard to the cardinal principle that 'he who asserts must prove'. Law, though, seems to be well settled that if the employer by reason of its illegal act deprives any of its employees from discharging his work and the termination is ultimately held to be bad in law, such employee has a legitimate and valid claim to be restored with all that he would have received but for being illegally kept away from work. This is based on the principle that although the employee was willing to perform work, it was the employer who did not accept work from him and, therefore, if the employer's action is held to be illegal and bad, such employer cannot escape from suffering the consequences. However, it is elementary but requires to be restated that while grant of full back wages is the normal rule, an exceptional case with sufficient proof has to be set up by the employer to escape the burden of bearing back wages.

¶45We hasten to add that the courts may be confronted with cases where grant of lumpsum compensation, instead of reinstatement with back wages, could be the more appropriate remedy. The courts may, in such cases, providing justification for its approach direct such lumpsum compensation to be paid keeping in mind the interest of the employee as well as the employer."

¶10In aforesaid circumstances and taking note of above referred position of law and rival submissions, Court finds that an order of granting full backwages since reinstatement was not possible would not be justified considering that respondent-workman has not provided any affidavit or declaration that he was not gainfully employed for period of 30 years when award proceedings remained pending."

¶9According to contesting-respondent's case he has worked from 1985 to 2004, i.e., for about 19 years, initially as a Daily Wager and subsequently as a Typist, therefore, also taking note of aforesaid judgments, especially para 20 of judgment in U.P. State Handloom Corporation Ltd. Kanpur Thru M.D. (supra) and the judgment passed by this Court in Sri Chhotelal (supra), the award can be modified by payment of a lump sum compensation instead of reinstatement and full back wages, as already referred reinstatement is not possible now.

¶10In aforesaid circumstances, considering the period for which contesting-respondent has worked, time took before Labour Court as well as before this Court, a lump sum compensation of Rs. 3 lacs would be reasonable.

¶11In view of above, impugned award dated 24.05.2012 is modified that instead of reinstatement with full back wages, petitioner will pay a lump sum compensation of Rs. 3 lacs to contesting-respondent within a period of four weeks from today.

¶12The writ petition is accordingly disposed of. (SAURABH SHYAM SHAMSHERY, J.) September 30, 2026 AK High Court of Judicature at Allahabad