JUDGMENT S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. This writ petition is directed against the Labour Court's award dated 16.12.1997 given by Presiding Officer, Labour Court, U.P. Agra in Adjudication Case No. 41 of 1989. Through the said award termination order dated 20.5.1986 was set aside and the reinstatement of the petitioner was directed. However, towards back wages only a lump sum amount of Rs. 5000/- was awarded.
3. The argument of the learned Counsel for the petitioner in this writ petition is that the entire back wages should have been awarded. The Supreme Court in several authorities, including the authority of Haryana State Electronics Development Corporation v. Mamni has held that it is not necessary to award full back wages invariably along with reinstatement. In the instant case very cogent reason have been given by the Labour Court for not awarding full back wages. The most important circumstance is that the Union had agreed with the Management that workmen should report on duty and those who did not report need not be taken back in service. Fortunately or unfortunately petitioner was not member of the Union, hence Labour Court held and, in my opinion, rightly, that the said agreement was not binding upon the petitioner. In view of this, even though petitioner did not report for duty, still Labour Court set aside the termination. However, it was also not shown that petitioner was not meanwhile gainfully engaged else where. Even the award of Rs. 5,000/- was therefore rather on higher side.
4. The learned Counsel for the petitioner in support of his contention has cited an authority of a learned Single Judge of this Court delivered in Civil Misc. Writ Petition No. 12249 of 2001 Nagar Palika Parishad, Farrukhabad and Anr. v. Prescribed authority, Labour Court I and Anr. (decided on 11.11.2005).
5. In the said authority it has been held that the Three Judges Authority of the Supreme Court reported in Hindustan Tin Works Private Limited v. The employees has held that it is upon the employer to prove that employee was gainfully engaged some where else and that in the absence of any evidence in that regard by the employer full back wages shall be awarded as a rule. Learned Single Judge further held that even though in the two subsequent Supreme Court Authorities reported in Allahabad Jal Sansthan v. Daya Shanker Rai 2005 (105)F.LR. 943 and Kendriya Vidyalaya Sangthan v. S.C. Sharma 2005 (104) F.L.R. 863, it has been held that burden to prove this fact is upon the employee, however, the earlier authority of the Supreme Court being of Three Hon'ble Judges was binding upon the High Court in preference to the two subsequent authorities of two Hon'ble Judges. Regretfully I can not agree with the view of the learned Single Judge. In innumerable authorities of the Supreme Court during last five years it has been held that full back wages can not be awarded as a rule and burden to prove that employee was not gainfully engaged after his retrenchment is upon the employee. Seven such authorities of the Supreme Court have been discussed by the Supreme Court in U.P.S.R.T.C. v. Sharda Prasad Misra decided on 13.4.2006 and . In another authority of the Supreme Court decided on 2.5.2006 reported in Haryana State Electronics Development Corporation Ltd. v. Mamni also the same thing has been decided. Of course, all these authorities are by two Hon'ble Judges. However, in the later authority the Three Judge Authority of the Supreme Court in Hindustan Tin Works (supra) has been thoroughly discussed, In Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and Anr. 2002 AIR SCW 3008, the authority of Hindustan Tin Works was considered and observations made in the said authority of 2002 have been quoted with approval in Haryana State Electronics Development Corporation Ltd. (supra) in paragraphs 15 to 19, which are quoted below:
15. This Court in a number of decisions has categorically held that the relief of reinstatement with full back wages is not to be given automatically. Each case must be considered on its own merit.
16. In U.P. State Brass ware Corporation Ltd. and Anr. v. Udai Narain Pandey , it was observed:
Order VII Rule 7 of the Code of Civil procedure confers power upon the Court to mould relief in a given situation. The provisions of the Code of Civil procedure are applicable to the proceedings under the Industrial Disputes Act. Section 11-A of the Industrial Disputes Act empowers the Labour Court.Tribunal and National Tribunal to give appropriate relief in case of discharge or dismissal of workman.
17. lt was further opined:
Industrial Courts while adjudicating on disputes between the management and the workmen, therefore, must take such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law.
A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an industrial court shall lose much of its significance.
The change brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the government in the wake of prevailing market economy, globalization, privatization and outsourcing is evident.
In Hindustan Motors ltd, v. Tapan Kumar Bhattacharya and Anr. this Court noticed Raj Kumar (supra) and Hindustan Tin Works (supra) but held:
As already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatsoever on the aspect whether the respondent was employed elsewhere during this long interregnum. Instead of remitting the matter to the Labour Court or the High Court for fresh consideration at this distance of time, we feel that the issue relating to payment of back wages should be settled finally. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of this particular case including the vicissitudes of long drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement...
18. This Court held:
it is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Indian Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman.
(See also Haryana State Agricultural marketing Board v. Subhash Chand and Anr. .
19. In Nagar Mahapalika (now Municipal Corporation) v. State of U.P. and Ors. Civil Appeal of 2006 @ SLP (c) No. 23732 of 2004, disposed of this date, this Court held that:
In Nilajkar (supra), this Court cannot be said to have Lald down a law having universal application. In that case also back wages had been denied by the learned single Judge of the High Court which order was held to be just and reasonable. Therein the question which arose was whether in fact the Appellants therein were appointed in a project work.
The said decision has been distinguished by this Court in various decisions including Executive Engineer, ZP Engg. Divn. and Anr. v. Digambara Rao and Ors. , which in turn has been followed in a large number of decisions....
6. Unfortunately the authority of Hindustan Motors (supra) was not cited before learned Single Judge. Moreover the subsequent authority of Supreme Court in Haryana State Electronics development Corporation (supra) has further clarified the position.
7. Accordingly I am of the view that the petitioner was not at all entitled to full back wages.
8. Learned Counsel for the workman stated in the end that under Voluntary Retirement Scheme lump sum amounts were being paid to other employees of the Undertaking in question hence it may be directed to pay the same to the petitioner also. This is completely beyond the scope of the writ petition. If the petitioner is entitled to Voluntary Retirement Scheme then he may approach the authority concerned for the said purpose
9. Learned Counsel for the respondent has filed some application for dismissal of the writ petition as infructuous. Copy of the said application is not on record. I have perused the duplicate copy of the said application dated 11.12.2002, which was supplied by the learned Counsel for the petitioner. I do not see any reason to dismiss the writ petition as infructuous.
10. Accordingly there is no merit in the writ petition, hence it is dismissed.