JUDGMENT Anjani Kumar, J.
1. By mans of present writ petition under Article 226 of the Constitution of India, the petitioners-employers have challenged the award dated 9th June, 1995 of Labour Court, U.P., Varanasi passed in Adjudication Case No. 304 of 1988, copy whereof is annexed as Annexure-'1' to the writ petition. The following dispute was referred for adjudication by the Labour Court:
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2. The Labour Court issued notices to the workman as well as the employers. Both the parties have exchanged their pleadings filed documentary as well as oral evidence. In brief the case set up by the workman was that he was appointed in February, 1978 as Beldar and later on he was asked to perform the duties of Truck Driver and ultimately as Pump Operator. That the workman has worked for more than 240 days in each calendar year and his services were terminated w.e.f. 30.4.1980 without complying with the provision of Section 6-N of U.P. Industrial Disputes Act, 1947. On the other hand the petitioner-employers have taken up the case the workman was only a daily wager appointed in June, 1978 as Pump Operator, the workman himself abandoned the service after March, 1980. That the case is barred by limitation and further that Public Works Department is not an Industry. In rejoinder workman has said that he was not abandoned the job, but his services were illegally terminated. Labour Court after considering the respective case and evidence on record found that the termination of the services of the workman was illegal by award dated 23.10.1990. The employers have challenged the aforesaid award before this Court by means of Writ Petition No. 19603 of 1999. This Court while remanding back the matter to the Labour Court directed the Labour Court to decide as to whether the workman himself abandoned the service or he was removed from service. Thus, for this limited question the matter was remanded back before the Labour Court. The Labour Court has considered the respective case and the evidence of the parties and ultimately found that the workman has been able to establish his case that he was employed by the employers and worked more than 240 days. A finding has also recorded by the Labour Court that the workman himself has not abandoned the services. The employers before terminating the services of the workman have not complied with the provisions of retrenchment i.e., Section 6-N of the U.P. Industrial Disputes Act, 1947, nor paid any compensation in lieu thereof. Thus, the Labour Court answered the reference in favour of the workman and particular issue for which the matter was remanded. Since the workman has not himself abandoned the services, a statutory duty cast upon the employer to comply with the provisions of Section 6-N of U.P. Industrial Disputes Act before terminating services of the workman and Labour Court gave award that the workman is entitled for reinstatement with continuity of services and full back wages. It is this award, which is questioned before this Court by means of this writ petition.
3. Learned Counsel for the petitioner, has argued that the findings recorded by the Labour Court suffer from error of law but could not point out any such error. On the other hand, the Labour Court came to the conclusion, in my opinion, rightly that the workman was employed with the employer and he continued in service and his services were terminated without complying the provisions of Section 6-N of U. P. Industrial Disputes Act, 1947. He further argued that since the workman was a muster roll employee, therefore, the Labour Court erred in granting reinstatement with continuity of service, which is not supported by any law. learned Counsel for the petitioner has relied upon a decision of the Apex Court reported in (1998) 8 Supreme Court Cases 733; State of Haryana v. Om Prakash and Anr.; and a decision of mine reported in 2003(1) Education and Service Cases (Alld.) 548; UP. State Electricity Board and Ors. v. Presiding Officer, Industrial Tribunal (I), Allahabad and Anr. In view of the aforesaid law relied upon by the employers, which need not be reproduced in this Judgment as the same considers the cases of the Apex Court. Paragraph 4 of the Judgment reported in Education and Service Cases, which are relevant arc reproduced below:
"4. Sri K.P. Agarwal, learned Senior Counsel appearing on behalf of the workman concerned has relied upon a decision of the Apex Court, reported in AIR 1960 Supreme Court 610, The State of Bombay and Ors. v. The Hospital Mazdoor Sabha and Ors., which is a judgment of three Judges Bench. The Apex Court has held :
"On a plain reading of Section 25F(b) which is pari materia of Section 6-N of U.P. Industrial Disputes Act, it is clear that the requirement prescribed by is a condition precedent for the retreatment of the workman. The section provides that workman shall be retrenched until the condition in question has been satisfied. It is difficult to accede to the argument that when the section imposes in mandatory terms a condition precedent, non-compliance with the said condition would not render the impugned retrenchment invalid........................Therefore, we see no substance in the argument that the Court of Appeal has misconstrued Section 25F(b). That being so, failure to comply with the said provision renders the impugned orders invalid and inoperative."
4. The next decision relied upon by Sri Agarwal is reported in AIR 1976 SC 1111, The State Bank of India v. Shri N. Sundara Money, which is equivalent to 1976 (Vol. 32), FLR 197, State Bank of India v. Shri N. Sundara Money, wherein the Apex Court has approved the Judgment reported in AIR 1960 SC 600. The Apex Court has held as under :
"Without further ado, we ready the conclusion that if the workmen swims into the harbour of Section 25F, he cannot be retrenched without payment, at the time of retrenchment, compensation computed as prescribed therein read with Section 25B(2). But argues the appellant, all these obligations flow only out of retrenchment, not termination outside that species of snapping employment. What, then, is retrenchment? The key to this vexed question is to be found in Section 2(oo), which reads thus:
"2(oo)" retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by. way of disciplinary action, but does not include-
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or
(c) termination of the service of a workman on the ground of continued ill-health."
5. learned Counsel for the petitioners lastly submitted that admittedly from the date of termination i.e., 30th April, 1980 till today, the workman has not worked for a single day and the direction for payment of full back wages without workman having done the work is per se arbitrary and against the principle of "No Work No Pay".
6. From the chequered history of the litigation I find that the interest of justice will meet if I direct that the workman shall be entitled for 3/4th of the wages that the workman was drawing on the date of termination till the date of award. The award in question is modified to the aforesaid extent. Rest of the award is upheld.
7. In view of the above, the writ petition is dismissed. The interim order, if any, stands vacated.