JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. This petition has been filed challenging the validity and correctness of the award rendered by the Presiding Officer, Industrial Tribunal (IV). Agra (hereinafter referred to as the Tribunal) in an industrial dispute between (i) Tubewell Construction Sub-Division below Railway Bridge, Etah C/o Assistant Engineer, and (ii) Tubewell Construction Division, Agra C/o. Executive Engineer and their workmen represented through Shinchai Mazdoor Sangh, U. P. Mathura Nagar, Aligarh.
3. Under Section 4K of the U. P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act) ; the following matter of dispute was referred by the State Government for adjudication to the Tribunal vide reference order dated 22.5.1989 :
^^D;k lsok;kstdksa }kjk ifjf'k"V esa vafdr vius rhu Jfedksa dks fu;fer u fd;k tkuk mfpr [email protected] oS/kkfud gS \ ;fn ugha] rks lacaf/kr Jfed D;k [email protected]"k ikus dk vf/kdkj gS fdl frfFk ls rFkk vU; fdu fooj.kksa lfgr \** Appendix (Parishist) (1) Sri B. L. Prasad. son of Mathura Prasad, Mechanic Workshop.
(2) Sri Harl Niwas, son of Sri Radha Ballabh driller on rig machine.
(3) Sri Surendra Singh Tyagi, son of Kamal Singh.
4. Before the Tribunal, the petitioners employers Tubewell Construction Sub-Division, Etah and Tubewell Construction Division Agra did not put in appearance through their representatives. The case of the workmen, represented by Sri B. L. Prasad before the Tribunal was that they were in continuous service of the employers without any break in service as under :
Name Period of continuous service Date of retirement
1. B. L. Prasad 1.3.1969 to 30.9.1992 30.9.1992
2. Hari Niwas 1.12.1972 till date
3. Surendra Singh Tyagi 1.4.1969 till date Further, the case of the workmen was that there were 5 permanent posts in the Department and employees juniors to them have been regularised in service on those posts.
5. It appears from the perusal of the award of the Tribunal that the case proceeded ex parte against the employers under Rule 12 of the U. P. Industrial Disputes Rules, 1957 (hereinafter referred to as the Rules) as the employers did not put in appearance before the Tribunal despite information. The Tribunal, in the aforesaid circumstances, relied upon the evidence produce by the workmen in regard to the continuity of service and their employment with the petitioners/employers. The workmen by their oral evidence proved the documents and the pleadings in their written statement taken before the Tribunal.
6. From a combined reading of Section 5C (1) of the Act and Sub-rules (8) and (9) of Rule 12 of the Rules, it is established that where a workman files an affidavit in support of his claim, the same would constitute primary evidence. If the employer does not care to controvert the evidence, nothing further is needed to be proved by the workman or done by the Court and the labour court/Industrial Tribunal is duty bound to accept the averments contained in the affidavit. Section 5C (1) of the Act and the Rules aforesaid indicate that the burden of proof in regard to the dispute referred for adjudication by the State Government to the Tribunal lies on the workmen. The burden of proof having been discharged by the workmen in the instant case, onus of proof shifted on the employers.
7. In Airtech Private Ltd. v. State of U. P. and Ors., 1979 (39) FLR 79, relying upon the decision of the Apex Court in Shankar Chaudhary v. Britannia Biscuits, held that the obligation to lead evidence to establish an allegation is on the party making the allegation and the test would be, who would fail if no evidence is led.
8. Once the burden of proof was discharged by the workmen, the onus shifted on the employers and the case of the employers failed as they did not discharge their onus. Reference in this regard may also be had to V.K. Raj Industries v. Labour Court Ist and Ors. 1981 (43) FLR 194.
9. It is admitted on behalf of the State that in spite of information, no one appeared in the case on their behalf. Thus, this is a case of no evidence in so far as employers petitioners are concerned.
10. In view of the fact that the Tribunal has given a finding of fact on the basis of evidence adduced before it and has held that all the concerned workmen are to be treated in continuous service of the department and are entitled to full pension, gratuity, group insurance and other benefits available under the Rules as if they were regularised employees on the date and at the time of superannuation along with leave encashment benefit as admissible under the Rules, the award cannot be said to be per se illegal or suffering from any legal infirmity.
11. No other point has been argued before me.
12. At the time of admission of the writ petition, this Court had passed the following order on 12.8.1997 :
"Admit.
Issue notice to respondent Nos. 2 to 4.
Meanwhile it is provided that the order of the labour court pertaining to regularisation of the respondents with effect from 6.5.1969, shall remain stayed but the respondents would be entitled to the same wages and other benefits which are given to the persons belonging to the respondents' cadre.
Dated : 12.8.1997.
Sd. S. H. A. Raza, J."
13. Since the workmen have already been granted same wages and other benefits by this Court, which are given to the persons belonging to the respondents' cadre, by the aforesaid interim order and as no illegality could be pointed out in the findings of the Tribunal by the counsel for the petitioners, it would, therefore, be appropriate in the interest of justice to direct the employers to regularise the respondents w.e.f. 1969 and to pay to the workmen their full back wages and other retirement benefits along with 12 percent interest from the date from which these reliefs became due to the workmen under the award to the date of actual relief granted.
14. In view of the above discussions, it is not a fit case for interference under Article 226 of the Constitution. The petition is liable to be dismissed and is dismissed accordingly. No order as to costs.