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State Of U.P. v. Labour Court & Another - WRIT - C No. 2016 of 1996  RD-AH 5645 (8 March 2006)
Court no. 31
Civil Misc. Writ Petition No. 2016 of 1996
State of U.P. vs. The Labour Court and anr.
Hon'ble Bharati Sapru, J.
Heard learned standing counsel Sri A.K. Mishra and learned counsel for the respondent workman Sri Akhilesh Chandra Singh.
This petition has been filed against an award of the Labour court dated 27.4.1995 passed in adjudication case no. 102 of 1990 by which the Labour Court had reinstated the respondent workman Masooria with all benefits.
Under an interim order granted by this Court on 6.1.1997, this Court had reinstated the workman with an order that he should be paid regular salary month to month.
Learned standing counsel appearing on behalf of the petitioner states that the order dated 6.1.1997 has been complied with by the State and the respondent workman has been reinstated. However the learned standing counsel has argued that while giving full benefits to the respondent workman, the award was not returned any finding on the gainful employment of the respondent workman and has granted him full back wages without any discussion in this regard.
Learned standing counsel has argued that the grant of full back wages without any application of mind by the Labour Court is bad and vitiated particularly in view of the law laid down by the apex court in the case of Kendriya Vidyalaya Sangathan vs. S.C. Sharma, 2005 SC C (L&S) 270, wherein the apex court has held that the payment of back wages involves a discretionary relief and each case has to be dealt with on its own peculiar facts and circumstances. The Labour Court must apply to its mind to the question while determining the entitlement of a person to back wages. It is not for the employer to show that the employee is not gainfully employed, rather it is a burden on the employee to show that he was not gainfully employed.
In another decision of the Hon'ble Supreme Court as reported in the case of General Manager, Haryana Roadways vs. Rudhan Singh, 2005 SCC (L & S) 716 wherein the Full Bench of the apex court has held that order for payment of back wages should not be passed in a mechanical manner but a host of factors such as the method and nature of appointment, qualifications of workman, length of service and availability of alternative work have to be considered.
The apex court has reiterated its view in the case of U.P. State Brassware Ltd., vs. Udai Narain Pandey, reported in JT 2005 (10) SC 344.
Thus, the sum and substance of the matter is that it is not the absolute consequence of an order reinstatement that in every case, full back wages are to be granted, but that the issue of grant of back wages must be gone into and the grant, if any, of back wages must be given proper consideration which shall of course vary from case to case.
The learned counsel for the respondent workman has also appeared and argued that the award of the Labour Court is concluded by the finding of fact which should not be interfered by this Court under Article 226 of the Constitution. He has also brought to the notice of this Court a decision dated 19.8.2002 passed in the writ petition no. 2022 of 1996 by Hon'ble Anjani Kumar, J. which is a decision in the bunch of cases referred in the present award where the award has been upheld in toto.
In view of the above, I am modifying the impugned award of the Labour Court to the extent that only 50% of the back wages shall be paid to the respondent workman pursuant to the impugned award and the rest of the award shall remain as it is.
In the result, the writ petition is partly allowed but there will be no order as to costs.
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