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State Of U.P. v. P.O/Labour Court, U.P.Agra & Another - WRIT - C No. 40812 of 2001  RD-AH 3758 (16 February 2006)
HON. SHISHIR KUMAR, J.
The present writ petition has been filed by the State-petitioner for quashing the order dated 16.3.2000 published on 11.1.2001 passed by respondent no.1, Annexure-7 to the writ petition by which in the dispute raised by respondent no.2 before the Labour Court, an award of reinstate-ment with 50% back wages has been given.
The facts arising out of the writ petition is that the State Government has referred the matter under Section 4-K of the Industrial Disputes Act to the Labour Court on 5.2.1997 for deciding the question whether the retrenchment of respondent no.2 from 26.11.1991 was illegal and if so, to what relief the workman is entitled under the law.
A written statement was filed on behalf of the petitioner duly supported by an affidavit on 28.4.1997 stating therein that the workman was never given appointment on 1.7.90. The factum to this effect regarding working of respondent no.2 for more than 514 days has also been denied. It has also been submitted that there is no post of Beldar in the government offices as alleged by the workman. But the Labour Court after considering the affidavit, as the witness who has appeared on behalf of the petitioner was not able to state whether respondent no.2 was in the employment or not and has stated that he is not aware regarding the aforesaid fact, and the person under whom the respondent no.2 was working may have been alleged, in such circumstances, granted an award of reinstatement with 50% back wages. Aggrieved by the award-dated 16.3.2001 the petitioner has approached this Court.
This Court while entertaining the writ petition passed an order that operation of the award will remain stayed provided half of the amount awarded be deposited by the petitioner in the office of respondent no.1 and the workman respondent no.2 be reinstated with the back wages last drawn. As the counter and rejoinder affidavits have been exchanged, with the consent of the parties, the writ petition is disposed of finally. It has been informed by the counsel for the parties that on the basis of the interim order of this Court, respondent no.2 has been reinstated. But as regards the payment of back wages the standing counsel submits that now in view of the well settled principle of law, 50% back wages also cannot be awarded unless and until a pleading to this effect and in support of the pleading it has to be proved that the workman concerned was not gainfully employed from the date of termination till the date of award unless and until a pleading to this effect is made before the Labour Court, the Labour Court is bound to record a finding on the basis of the evidence, then only the Labour Court has jurisdiction to award the back wages. In case there is no finding, no back wages can be awarded. The Supreme Court has brought to the notice of the Court and has submitted that the Labour Court has not recorded any finding regarding payment of back wages to the workman.
On the other hand Sri Y.K. Sinha who appears for respondent no.2- workman has submitted that taking into consideration the aforesaid fact, the Labour Court has only awarded back wages to the tune of 50% though the workman was entitled in case of reinstatement with full back wages. But taking into the facts circumstances of the case only 50% back wages have been awarded. As such, it needs no interference by this Court and the writ petition is liable to be dismissed.
I have heard the learned counsel for the petitioner and Sri Y.K. Sinha who appears for the respondent and perused the record. Now the Apex Court in the case of Kendriya Viddya Sansthan Vs. S.C. Sharma (2005 SCC (L& S) Page 270 has held that unless and until there is a pleading and a proof to this effect has been submitted before the Labour Court that the workman was not financially and gainfully employed anywhere and a finding to that effect has to be recorded by the Labour Court, no back wages should be awarded. It has further been held in the said judgment that in lieu of reinstatement, there is no straightjacket formula for awarding back wages in case of reinstatement.
In view of the aforesaid fact as there is no pleading by the workman concerned and no finding has been recorded by the Labour Court, as such, in my opinion, awarding 50% back wages is not correct and the same is liable to be set aside.
The writ petition is partly allowed to the extent that respondent no.2 will not be entitled to any back wages. No order as to costs.
W.P. 40812 of 2001
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