JUDGMENT V.K. Shukla, J.
1. U.P. State Electricity Board, through its Executive Engineer, has approached this Court assailing the validity of the award dated 05.10.1996, directing reinstatement of Mahesh Chandra Sharma with back wages in the petitioners' establishment.
2. Brief background of the case as has been disclosed in the writ petition is that Mahesh Chandra Sharma had worked only for 203 days at petitioners' establishment, and even during this 203 days, he worked for 73 days with Vidyut Vitran Khand, Rural Dehradun with effect from December, 1989 to March 1990, and further he was member of Hydroelectric Employees' union, Dehradun, and through the said union industrial dispute had been raised questioning termination of 57 employees. Said reference was numbered as Adjudication Case No. 10 of 1992, which was decided along with Adjudication No. 9 of 1992 on 22.01.1996. During pendency of aforesaid two references, wherein Mahesh Chandra Sharma was only party, Mahesh Chandra Sharma raised another industrial dispute for same cause of action, and the State Government on 06.05.1992 referred the dispute for adjudication and same was registered as Adjudication Case No. 36 of 1992. In the said proceedings written statements were filed by respective parties, thereafter rejoinder statements were also filed. Mahesh Chandra Sharma deposed before the Labour Court. Muster Rolls for the relevant months were also filed. Respondent workman also wrote letter to the Executive Engineer, Vidyut Vitran Khand for grant of certificate. Thereafter, award in question had been passed, which is subject matter of challenge before this Court.
3. To this writ petition counter-affidavit has been filed, and therein it has been contended that respondent workman had worked for 265 days and details of the said work have also been sought to be disclosed before this Court. Rejoinder affidavit has also been filed, and therein statement of fact mentioned in the counter-affidavit has been disputed and that of writ petition has been reiterated.
4. After exchange of pleadings inter se parties, present writ petition has been taken up for hearing and final disposal with the consent of the parties.
5. Ranjeet Saxena, Advocate, appearing on behalf of petitioners, contended with vehemence that in the present case, there was nothing on record on the basis of which inference could be drawn and conclusion arrived at that respondent workman had worked for more than 240 days, as such award in question is perverse and the same is liable to be set aside. Sri K.R. Singh Jadon, learned Counsel for respondent workman, on the other hand, contended that categorical finding of fact has been returned that respondent workman had worked for more than 240 days, and further juniors have been retained, as such award in question is not at all liable to be interfered with.
6. On the basis of arguments advanced on behalf of respective parties and pleadings available on record, factual aspect which is emerging is to the effect that Labour Court while recording finding to the effect that Mahesh Chandra Sharma had worked for 240 days has placed reliance on the fact that said workman has accepted that he has worked with effect from December, 1989 to March, 1990, and thereafter with effect from March, 1990 to August, 1990, and on the basis of the same finding has been returned that respondent workman has worked for more than 240 days. Labour Court has not adverted on this aspect of the matter that for the months of January, February and March, 1990, said workman had worked with Executive Engineer, Vidyt Vitaran Khand, Rural Dehradun, with which petitioners had no concern at all. Said employment could not have been treated as employment with petitioners' establishment.
7. In paragraph 3 of the writ petition specific statement of fact has been mentioned in this respect that said 73 days could not be treated to be under the employment of petitioners. This statement of fact has not at all been categorically denied that the said employment was under the petitioners by any means. Labour Court at no point of time adverted on this aspect of the matter. Workman himself had written letter (Annexure 10 to the writ petition) asking for certificate and the certificate was also issued to this effect. This fact has not at all been disputed in the counter-affidavit. Award passed by Labour Court proceeds on the presumption that respondent workman had worked for more than 240 days, but at no point of time any finding has been returned that respondent workman had worked for more than 240 days with petitioner's establishment, whereas precise case of the petitioners has been that for 73 days, which has been clubbed, respondent workman had never worked with petitioners' establishment.
8. Hon'ble Apex Court in the case of Range Forest Officer v. S.T. Hadimani, 2002 (3) SCC 25, has taken the view that burden lies on the respondent workman to establish and substantiate that he has completed 240 days in the year preceding his termination. Here, in the present case said burden has not been discharged, but in spite of this Presiding officer, Labour Court by clubbing the service, which was not performed under the petitioner's establishment, said benefit has been extended, which is not at all justifiable, as such award to that extent is perverse. As far as question of grant of retrenchment compensation is concerned, it was not necessary in the facts of the present case; as such finding that respondent workman had completed 240 days is not correct finding.
9. Now the other aspect of the matter is that impugned award in question reflects that finding of fact has been recorded in respect of issue No. 5 is to the effect that persons, viz. Vir Singh, Dharma Singh, Ashar Jafar Miyan, who are junior qua the respondent workman, have been retained. Hon'ble Apex Court in the case of Central Bank of India v. S. Satyam, 1997 (1) UPLBEC 329, has taken the view, in context to Section 25G of the Industrial disputes Act, 1947 which is analogous to Section 6-P of the U.P. Industrial Disputes Act, 1947 that Section 25G prescribes the principle of retrenchment and applies ordinarily, the principle of last come first go which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25F. This fact no where has been disputed in the body of the writ petition. Impugned award of the Labour Court also reflects that this fact was not even disputed before the Labour Court that when services of Mahesh Chandra Sharma were disengaged, juniors to him had been functioning; as such finding on issue No. 5 is being upheld and retrenchment of respondent workman, though would not contravene the provisions of Section 6-N, but same would contravene the provisions of Section 6-P of the U.P. Industrial Disputes Act, 1947, as such respondent workman is entitled to reinstatement as juniors to him had been retained.
10. Back wages in full has been awarded by Labour Court as a matter of course Hon'ble Apex Court in the case of Hindustan Motors Ltd. v. Japan Kumar Bhattacharya, (2002) 6 SCC 41 has taken the view that Industrial Tribunal, while setting aside order of discharge or dismissal and directing reinstatement must examine, whether in the circumstances of case back wages should be awarded and to what extent. This view has been reiterated by Hon'ble Apex Court in the case of M.P. State Electricity Board v. Smt. Jareena Bee, 2003 (98) FLR 595 and in the case of Indian Railways Constructions Company Ltd. v. Ajay Kumar, (2003) 4 SCC 579.
11. Touched on these principles, it has to be seen that no reasons whatsoever have been assigned for awarding full back wages. In this case disengagement of respondent workman was made in August, 1990, award was given in 1996 and writ petition is being decided in the year 2004. Thus, more than fourteen years have passed, as such ends of justice would be more served and same would be doing justice to both the parties by modifying the award to the extent that 50% of the back wages would be payable to respondent workman.
12. Consequently, writ petition is disposed of with the direction that impugned award is modified to the extant that 50% of the back wages would be payable to him Rest of the award is maintained.