JUDGMENT Rakesh Tiwari, J.
1. Heard learned counsel for the parties and perused the record.
2. This writ petition has been filed challenging the validity and correctness of the award dated 13.5.1997, passed by the Central Government Industrial Tribunal-cum-Labour Court, Kanpur. By the impugned award, C.G.I.T. has held that the order of removal of the workman/respondent No. 2 dated 4.6.1986 was quashed and that the workman is entitled for reinstatement in service with back wages from the date of reference.
3. The petitioner is an Insurance Company in which respondent No. 2 was working as Inspector Grade-II. He was charge-sheeted for the following misconducts :
(a) Failure to maintain absolute integrity thus committed breach of Rule 3 of the General Insurance (Conduct, Discipline and Appeal) Rules, 1975.
(b) Dishonesty in connection with the business of the Company.
(c) Acting in a manner prejudicial to the interest of the Company.
(d) Wilful insubordination or disobedience of lawful and reasonable order of his superior.
4. The brief facts of the case are that respondent No. 2 was authorised to accept the premium from the parties and to issue the certificate in insurance. The workman/respondent No. 2 issued certificate of Insurance No. 111/6302089/029863/12303/ India, dated 20.1.1980 for comprehensive insurance in respect of Tractor bearing Engine No. 35696 Escort 335, Model 1980, belonging to one Kabiruddin son of Late Abdul Majeed resident of village and post Ahmadpur Asrauli, district Allahabad. He did not deposit the premium receipts of the aforesaid insurance documents issued by him. He thus collected Rs. 700 in cash as premium from the aforesaid insurer. The Branch Officer/Company was thus completely unaware about the aforesaid risk. As per General Insurance (Conduct, Disciplinary and Appeal) Rules, 1975, no insurance document can be issued to any part without prior receipt. Respondent No. 2, who received the amount, was required to deposit the office copy or copy of certificate of insurance as well as the amount with the branch office on the very date of the receipt of premium or latest by the following working day.
5. When the aforesaid facts came to the notice of the officers of petitioner's company, respondent No. 2 was directed vide letter No. 111/HSS/Vig/82, dated 13.3.1982 to return all used/unused certificates of insurance and cover notes lying with him, but inspite of clear directions, he did not do so.
6. The respondent No. 2 was charge-sheeted and after domestic enquiry, charges levelled against him were found proved. The Disciplinary Authority looking into seriousness of charges proved against respondent No. 2 passed the penalty order removing him from service. Aggrieved by the order, respondent No. 2 filed an appeal against the order of removal dated 4.6.1986, which was dismissed by the appellate authority. Thereafter, he submitted a memorial on 5.6.1989 before the Chairman-cum-Managing Director of Insurance Company and the competent authority under Rule 40 of the General Insurance (Conduct, Discipline and Appeal) Rules, 1975, rejected the memorial of respondent No. 2 dated 5.6.1989 and upheld the decision of the removal passed by the competent authority. Aggrieved, the workman/respondent No. 2 raised an industrial dispute after six years, which was referred by the State Government for adjudication before the C.G.I.T., Kanpur, by making following reference :
"Whether action of the management of the Regional Manager, National Insurance Co. Ltd., Allahabad, in removing Sri Anant Ram Saxena son of Late Sri Badri Prasad Saxena, Inspector Grade-II from the service vide order dated 4.6.1986 was just and legal? If not, to what relief is the workmen concerned entitled to?"
7. On the pleadings of the parties, a preliminary issue regarding fairness and propriety of the domestic enquiry was framed. By finding dated 7.11.1996 C.G.I.T., Kanpur, held that the enquiry was not fair and proper and the management was given an opportunity to prove misconduct on merits.
8. Several dates were fixed by the labour court, but the management failed to adduce any evidence on 4.12.1996, 21.1.1997, 21.2.1997 and 26.3.1997. Ultimately, the management was debarred from giving evidence and the arguments were heard on 28.4.1997.
9. By the impugned award, the labour court held that the burden of proving the misconduct as given in the charge-sheet rests with the management. It has further held that the management has failed to adduce evidence and as such the charges have not been proved. Consequently, the order of removal of respondent No. 2 from service dated 4.6.1986 is bad in law. C.G.I.T., Kanpur, further held that the workman/respondent No. 2 is entitled for reinstatement in service with back wages from the date of reference because of belated claim.
10. The counsel for the petitioner submits that the burden to prove the case lies on the workman and the C.G.I.T. has committed illegality in shifting the burden of proof on the Insurance Company. He states that the initial burden is on the workman, who has to discharge the same and only then the onus would shift on the employer. When workman raised industrial dispute and invoked the jurisdiction of the Court, he seeks relief of setting aside the order of removal from service and reinstatement with full back wages. The workman after deciding the preliminary issues that the enquiry was not fair and proper. The burden of proof was upon the workman to prove his case, but he did not produce any evidence, hence he has not discharged his burden. In the case of V.K. Raj Industries v. Labour Court and Ors., 1979 (39) FLR 70, a Division Bench of this Court held that if a party challenges the illegality of an order, the burden lies on him to prove the illegality of the order. Reliance has been placed on Airtech India Ltd. v. State of U. P, and Ors., 1984 (4,9) FLR 38 and Shankar Chakravarti v. Britannia Biscuit Co. Ltd., 1996 (74) FLR 2004. In the aforesaid cases also, it has been held that the burden of proof lies on the party, who invokes the jurisdiction of the Court. "The test would be, who would fail if no evidence is led". The Court answered that the person, who invokes jurisdiction and raises the dispute, has to discharge his burden of proof and the onus shift on the other party. Thus, when the whole case was open before the Tribunal, the burden to prove that the order of removal was wrong, was on the workman, who was challenging the order. It appears that the workman did not examine himself neither at the time of decision of preliminary issue nor thereafter. The pleadings are not proved, hence there was no evidence before the Tribunal to prove that the order of removal was illegal and the award is not based on any evidence.
11. The second contention of termination is covered by Section 25F of the U. P. Industrial Disputes, Act, 1947. The Apex Court in Himanshu Kumar Vidhyarthi v. State of Bihar, 1997 (76) FLR 237, has held that the services of a workman are regulated by the statutory Rules, concept of industry is excluded and as such the award passed by the labour court is also without jurisdiction.
12. Lastly, it has been submitted that in para 11 of his written statement the workmen had stated that he was out of employment for merely 19 years and has prayed for lesser punishment, hence the award of reinstatement with full back wages was illegal. The reason has been given by the labour court in awarding full back wages.
13. In the writ petition, there was an interim order. From the counter-affidavit, it appears that the workman was aged about 55 years. He must have retired by now. No purpose would be served by the order of his reinstatement at this stage.
14. For the reasons stated above, the writ petition partly succeeds and is allowed. The petitioner is directed to pay 50% of the back wages to respondent No. 2 from the date of reference to the date of his retirement with 10% interest, as the workman had not worked during the period, within two months from the date of production of this order. The interim order dated 10.3.1998 is vacated. No order as to costs.