JUDGMENT Anjani Kumar, J.
1. The petitioner-employers U.P. Avas Evam Vikas Parishad, approached this Court by means of present writ petition under Article 226 of the Constitution of India, questioning the award of the Labour Court, U.P., Agra dated 31st October, 1995, passed in Adjudication Case No, 7 of 1985, copy whereof is annexed as Annexure-'I' to the writ petition.
2. The following dispute was referred to by the State Government in exercise of power under Section 4-K of the U.P. Industrial Disputes Act, 1947 (In short 'Act'), to the Labour Court for adjudication :
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3. After receipt of the reference, case was registered and notices were sent to both the parties, namely, the employers as well as the workman concerned, who have exchanged the pleadings and adduced their respective evidence. On the basis of the pleadings of the parties, the Labour Court framed the following additional issues :
"(1) Whether the respondent is 'Workman' within the meaning of the word used under the provision of U.P. Avas Vikas Parishad?
(2) Whether the Labour Court has jurisdiction to hear the reference made to it?
(3) Whether U.P. Avas Vikas Parishad is covered by the definition of an 'Industry'? and (4) Whether the domestic enquiry conducted by the employers against the workman concerned was fair and proper and in accordance with principles of natural justice?"
4. The Labour Court has decided preliminary issues by the order dated 15th April, 1993 in favour of the workman, which is part of the award, except the Additional Issue No. 4. With regard to Additional Issue No. 4, the Labour Court has recorded a finding that inspite of the time being granted to the employers to established before the Labour Court by adducing evidence that the charges levelled against the workman concerned stand proved after holding that the domestic enquiry conducted by the employer was not fair and proper and also not in accordance with the natural justice, but employers have not availed the aforesaid opportunity given by the Labour Court. No evidence has been adduced and even representative of the employers were absent, thus, the Presiding Officer on 3rd September, 1993, have closed the right of the employers to adduce the evidence to prove the charges against the workman concerned and directed the workman to adduce the evidence, but neither of the parties have adduced any evidence, therefore, on the basis of the evidence already on record, the matter was argued and the Labour Court has taken the decision. The Labour Court has found that since it has already found that the charges which were found to be established in the domestic enquiry, which is neither fair, nor proper and in accordance with the principles of natural justice. Time and again, opportunity was given to the employers to prove the charges before the Labour Court, but the same was not availed by the employers. Thus, in these circumstances, the findings has been recorded that since, the charges against the workman concerned have not been established, the termination of the services of the workman concerned with effect from 3rd May, 1983 is neither legal, nor justified and the workman concerned is entitled for the reinstatement with continuity of service and full back wages. Since, the employers have not established that the workman was gainfully employed elsewhere during the period of pendency of the present dispute, therefore, the Labour Court answered the reference in favour of the workman. In its earlier order, the Labour Court has found that the workman is covered by the definition of 'Workman' and that the U.P. Avas Vikas Parishad is covered by the definition of an 'Industry'. It has been also found by the Labour Court that the Labour Court is under statutory obligation to answer the reference and this way the Labour Court answered the reference in favour of the workman. Aggrieved thereby, the employers approached this Court by means of this writ petition as already stated above.
5. Learned Counsel appearing on behalf of the petitioner-employers could not demonstrate that the findings recorded by the Labour Court on any of the issues, referred to above are illegal. They have submitted that in view of the fact that admittedly the workman has not worked during the pendency of the matter before the Labour Court, therefore, on the principles of 'No Work No Pay', the award of the Labour Court is liable to be set-aside so far payment of full back wages is concerned. Learned Counsel for the petitioner has relied upon a recent decision of the Apex Court in Civil Appeal No. 4601 of 2003 (arising out of SLP (C) No. 3092 of 2003), M.P. Electricity Board v. Smt. Jarina Bee, decided on 15th July, 2003, wherein the Apex Court in the background of the case and after following the principle of law laid down by the Apex Court in the case reported in (2002) 6 Supreme Court Cases 41 : 2002 AIR SCW 3008, Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and Anr. and JT 2003 (2) SC 295, Indian Railway Construction Co. Ltd. v. Ajay Kumar, have held that "Considering the background of the case and the fact that the order of dismissal was found to be defective as the principles of natural justice were not properly followed and an opportunity was granted to the Board to proceed in accordance with law and the fact that the employee has expired in the meantime, we feel the payment of Rs. 85,000/- towards back wages would meet the ends of justice. The payment is to be made within a period of 8 weeks from today. If any, amount has been paid pursuant to the directions given by the Industrial Court and/or the High Court, the same shall be adjusted from the aforesaid sum."
6. Learned Counsel for the workman has relied upon a decision in support of this contention reported in 2003 (97) FLR 1020 and 2002 (95) FLR 315 and also (2002) 6 Supreme Court Cases 41 (supra), wherein the Apex Court has found that the quantum of payment of back wages is the question and the pendency by the various factors and as held in Para 16 of the Tapan Kumar Bhattacharya's case (supra), that "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 service the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement. The amount already paid as wages or subsistence allowance during the pendency of the various proceedings shall be deducted from the back wages now directed to be paid. The appellant will calculate the amount of back wages as directed therein and pay the same to the respondent within three months, failing which the amount will carry interest at the rate of 9% per annum. The award of the Labour Court which has been confirmed by the Division Bench of the High Court stands modified to this extent."
7. Learned Counsel for the contesting respondent-workman contended that the facts of the present case are similar to that of the case of Tapan Kuma Bhattacharya's (supra), than the case of M.P. State Electricity Board v. Smt. Jarina Bee, (supra). As in the case of M.P. Stale Electricity Board, the workman concerned has already died during the pendency of the litigation, whereas in the present case of Tapan Kumar Bhattacharya as well as in the present case, there is no such instance. In my opinion, the principles laid down by the Apex Court in the case of Tapan Kumar Bhattacharya based on the earlier decision of the Apex Court are to be followed and therefore, the award of the Labour Court is modified to the extent that the workman concerned is entitled for reinstatement with continuity of service, but with regard to the payment of back wages, he will be entitled only for half of the back wages and any other amount that has been paid under the interim order of this Court or under any orders by any authority shall be adjusted towards the calculation of half wages payable to the workman under this order. The employers are directed to pay the aforesaid amount to the workman concerned within a period of three months from the date of presentation of a certified copy of this order before them, failing which the workman concerned is entitled interest at the rate of 9% (nine) per annum. With the aforesaid modification, the award of the Labour Court is upheld.
8. In the result, the writ petition is allowed in part. The award of the Labour Court is modified to the extent, referred to above.