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State Of U.P.Thru' Soil Conservation Officer Jhansi v. The P.O. Kanpur & Another - WRIT - C No. - 10460 of 2002 [2007] RD-AH 18229 (22 November 2007)

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Court no. 23

Civil Misc. Writ Petition No. 10460 of 2002

State of U.P. versus The Presiding Officer/Labour Court

U.P. Kanpur and another.

Hon'ble Rakesh Tiwari,J.

Heard counsel for the parties and perused the record.

This writ petition has been filed for quashing the impugned award dated 21.9.2000 published on 5.1.2001 passed in Adjudication No. 236 of 1999 by the Labour Court, U.P. Kanpur.

Respondent no.2 workman was appointed as Chaukidar in the office of Soil Conservation Officer, National Water Shed, Jhansi since 1.1.1987 and had worked till 9.11.90 but was illegally restrained from working since 19.11.90 and prayed for his reinstatement as a Chaukidar.

A dispute was raised by the workman before the Regional Conciliation Officer. On conciliation proceedings having failed, the following matter of dispute was referred to the Labour Court, Kanpur where it was registered as Adjudication Case No. 236 of 1999.

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The Labour Court after appreciation of evidence held that the services of the workman were terminated without complying with the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947, which is illegal and directed the reinstatement of the workman in service with full back wages with effect from the date of termination of his services vide order dated 21.9.2000.

Aggrieved by the impugned award dated 21.9.2000 the petitioner has filed the instant writ petition.

At the time of admission this Court on 11.3.2002 passed the following order:-

" Heard learned Standing counsel and perused the material on record.

Learned Standing counsel has submitted that while awarding full back wages by the impugned award dated 21.9.2000, the Labour Court has not considered whether during the period between the termination of the service of the workman and making of the award, the workman had not been gainfully employed. In the circumstances issue notice to the respondent no.2. List after expiry of notice period.

Meanwhile under the impugned award dated 21.9.2000, the workman will be entitled to reinstatement and only half of the back wages will be paid to him and the remaining half of the back wages will remain stayed and will abide the final result of the writ petition."

The counsel for the petitioner submits that the workman has been reinstated in pursuance of order dated 11.3.2002 above and 50% have also been paid to him. He has again urged that since the workman had been gainfully employed elsewhere after termination of his services and that the workman had worked only for 161 days in leave vacancy, hence there is no question of application of provisions of Section 6 N of the U.P. Industrial Disputes Act 1947.

It is urged that as the workman had not continuously worked for 240 days or more the award making the worker appointed in leave vacancy permanent was illegal and liable to be set aside. The counsel for the petitioner relied upon the decision of the Apex Court in Allahabad Jal Sansthan versus Daya Shankar Rai and others,(2005) 2 UPLBEC,1405 wherein the Labour Court had directed reinstatement of the workman with full back wages and the writ petition filed by the employer against the award was dismissed. The Supreme Court while allowing the appeal held that though the award of full back wages was usual result of reinstatement but with the passage of time a pragmatic approach need be developed. Since the workman has never raised any plea or adduced evidence that he was unemployed from the date of termination till the date of reinstatement thus 50% back wages of the workman shall serve the interest of justice.

The relevant portion of the judgment as given in paragraphs 17 and 18 are as under:-

"17. We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at.

18. In view of the fact that the respondent had been reinstated in service and keeping in view the fact that he had not raised any plea or adduced any evidence to the effect that he was remained unemployed throughout from 24.1.1987 to 27.2.2001, we are of the opinion that the interest of justice would be sub-served if the respondent is directed to be paid 50% of the back wages. "

Per contra the counsel for the workman has urged that the workman had continuously for 240 days and a finding of fact in this regard has been recorded by the Labour Court, hence the award of reinstatement with full back wages was fully justified in the facts and circumstances of the case.

No other point has been argued by the counsel for the parties.

The limited question before this Court in view of the contention of the parties in this case is therefore is therefore, confined to whether (a) the findings of Labour Court that workman has completed 240 days or more suffers from any perversity or error apparent on face of record, AND (b) whether the normal relief of full back wages on reinstatement granted by the Labour Court requires and moulding by the High Court in exercise of powers under Article 226 of the Constitution.

From the perusal of award it is evident that after the parties had filed the respective statements. The employers neither submitted any documents before the Labour Court nor produced any witness to prove in support of their pleadings whereas the workman entered the witness box and discharged his burden of proof.

A finding of fact has been recorded by the Labour Court that the employers had been granted a number of opportunities for filing documentary and oral evidence, which they did not avail. The employers also pressed their pleadings and continued to remain away from arguments. In these circumstances the Labour Court has answered the reference in favour of the workman holding the action of the employers in terminating the services of the workman illegal and reinstating the workman in service with full back wages.

The contention of the employers that the Labour Court has not considered the question of gainful employment of the workman therefore, has no force as they had neither taken this plea nor had discharged their burden of proof in support of their case whereas the workman had fully discharged his burden of proof by entering the witness box and proving the documents filed in support of his case.

The result of not even arguing the case by the employers is that they have not even pressed their pleadings, which amounts to waiver of their defence in the facts and circumstances of this case.

There is no illegality or infirmity in the findings of the Labour Court and hence, no interference is required in the findings. However, in view of the judgment in the case of Jal Sansthan ( supra) the relief of back wages is modified to extent of 50% already paid to him. The balance 50% wages shall be permitted to be withdrawn by the employers.

The writ petition is accordingly, disposed of moulding of the relief part of the award.

No order as to cost.

Dated 22.11.2007



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