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The Executive Engineer C.P.W.D. v. Presiding Officer & Another - WRIT - C No. 17409 of 1993 [2006] RD-AH 9561 (15 May 2006)


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The Executive Engineer,

C.P.W.D. Food Storage Division,

113/11 Swarup Nagar, Kanpur.                         .........Petitioner


The Presiding Officer, Labour Cour, Central Govt.

Industrial Tribunal Pandu Nagar, Kanpur and

others.                                                                .....Respondents


Hon'ble Bharati Sapru, J.

Heard learned counsel for the petitioner Shri A.K. Sinha and Shri G.K. Srivastava, learned counsel for the respondent workman.

The present petition has been filed against the award of the Labour Court dated 23.4.92 in I.D. Case No.237 of 1990.  The reference sought in the present case was whether the termination of the respondent workman with effect from 5.7.85 was proper or not and what was the relief that he was entitled.  

During the course of the proceedings before the Industrial Tribunal, the petitioner employee filed his written statement but did not appear thereafter.  As a result of which, the proceedings continued exparte against the management.  On 10.3.92 a date was fixed for argument after the workman already led his evidence.  The management applied for setting aside the order to proceed ex-parte and on an application made by the management, 23.4.92 was fixed for disposal.    On that date, however, the management again failed to appear.  As a result of which, the application made by the Management on 10.3.92 to hear the matter was also dismissed in default.  This is a clear case where the management was negligent in its approach in pursuing the matter before the Labour Court.  The Labour Court on its part has given the employer an opportunity to pursue their case but they did not do so.  Consequently, the Labour Court had no option but to proceed the case  ex-parte.  

It is also clear from the record that once an application of the management dated 10.3.92 was dismissed in default, they made no further attempt to get the matter heard on merits.  On the other hand, the Labour Court, while examining the matter on merits, recorded the finding of fact that the workman had worked continuously from 29.8.84 to 5.7.85.  Such being the case, the Labour Court came to the conclusion that the provisions of Section 25 F of the Industrial Disputes Act were attracted.  The Labour Court also recorded a finding that there was nothing on record to show that before terminating his service, management had given any notice to the workman or had paid him compensation which was due to him under Section 25 F of the Industrial Dispute Act.  Consequently, the Labour Court came to the conclusion that the action of the management in terminating the service of the workman with effect from 5.7.85 was not only illegal but unjustified and reinstated him with full back wages.  

An interim order was passed by this Court on 19.5.93 by which, this Hon'ble Court directed that the workman shall be reinstated but the back wages will remain stayed. The learned counsel for the petitioner has argued that the grant of full back wages to the workman concerned by the Labour Court was not justified.  He argues that the Labour Court, before granting full back wages to the workman should have applied its mind to the question and he has argued that in the absence of their being any evidence of finding in this regard that the workman was not gainfully employed during the period of termination, full back wages ought not have been given to him.

Learned counsel for the petitioner has argued that in the written statement filed by the workman, there is not even a whisper about the fact that he was not gainfully employed.  

Learned counsel for the petitioner has relied on recent decision of the Hon'ble Apex Court wherein the Apex Court has held that the grant of full back wages is not a natural consequence of an order of reinstatement.  Learned counsel for the petitioner has cited the case of U.P. State  Brassware  Corporation Ltd. and another Versus Uday Narain Pandey (2006) 1 Supreme Court cases 479 . Quite apart from this fact, the burden to prove lies on the workman himself to show that he is not gainfully employed.  He has not even raised the claim of back wages.

Such being the position, he is not liable to the grant of

any back wages.  The contention raised by the learned counsel for the petitioner is that the order granting back wages in this case was unjustified has substance and is accepted as correct by this Court.

 I hold that the grant of back wages in this particular case was wholly unjustified and the award of the Labour Court has to be modified in so far as it grants full back wages to the respondent workman.  I, accordingly, modify the award of the Labour Court and hold that no back wages shall be paid to the respondent workman.  Rest of the award will remain as it is and shall also be complied by the petitioner employer within a period of three months from the date of production of a certified copy of this order.  

In the end result, the writ petition is partly allowed.  Thee will be no order as to costs.

Dated : 15.5.06



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