R.A.Sharma - (1.) PETITIONER, who was workman working in the factory of respondent no. 2 (hereinafter referred to as the employer), was removed from service with effect from 22-12-1975. A dispute in connection with petitioner's removal from service was referred by the Government to the Labour Court-IV, Kanpur. The Labour Court by its Award dated 12-2-1980, published on 11-3-1980, has held the removal of the petitioner from service by the employer as illegal and has directed his reinstatement. But the back wages with effect from 22-12-1975 to the date of reinstatement have not been awarded. The back wages have been refused to the petitioner on the ground that during the period of forced idleness, from the date of removal from service to the date of reinstatement, the petitioner has not made any attempt for getting employment and thus has failed to reduce the financial burden of the employer is against that part of the Award where by the petitioner has been denied the back wages, that this writ petition has been filed.
(2.) THE impugned part of the Award, denying the back wages to the petitioner, cannot be sustained. Where the service of the workman has been illegally terminated by the employer, the workman is entitled to be reinstated with full back wages, except to the extent he was gainfully employed during the period he remained out of job. THEre is no obligation on the workman to search for or get a job during the period of forced idleness so as to reduce financial burden of the employer. In case removal from service of the workman is found illegal by the Labour Court the workman is entitled to be reinstated with full back wages and the burden is on the party objecting to it to establish the circumstances necessitating the departure from the ordinary rule of re-instatement with full back wages. In this connection reference may be made to the case of Hindustan Tin Works v. Its Employees, AIR 1979 SC 75, where in the Supreme Court laid down as follows : "THE relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself through out the protracted litigation is itself such an awesome factor that he may not service to see the day when relief is granted. More so in our system where the laws's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman, would be subjected to a sort of penalty for no fault of bis and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer." "Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. To the same effect are the decisions of the Supreme Court in the cases of Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha, AIR 1980 SC 1896 and Mohan Lal v. THE Management, 1981 LIC 806. For the reasons given above this writ petition is allowed with costs and that part of the Award where by the petitioner has been denied back wages, is quashed. The petitioner will be paid the full back wages from 22-12- 1975 (the date of termination of service) to the date of reinstatement, within a period of three months from the date of presentation of certified copy of this judgment before the employer. Petition allowed.;