JUDGMENT Bharati Sapru, J.
1. Heard learned Counsel for the petitioner Sri Ranjit Saxena and learned Counsel for the respondent workman Sri Shyam Narain at length.
2. The present writ petition has been filed against an award of the Labour court dated 8.7.1991 published on 30.9.1991 in adjudication case no. 10 of 1991, by which the respondent workman has been reinstated with back wages. The writ petition was filed by the petitioner and an interim order was passed on 28.1.1992, which is quoted hereinbelow:
Issue notice.
Meanwhile the payment of back wages till the date of award are hereby stayed.
3. Interim order passed on 28.1.1992 was discharged by way of order dated 9.9.2002. Thereafter a recovery was issued against the petitioner and the petitioner obtained a stay of the recovery of this Court on 28.4.2005.
4. During the interregnum i.e. between the period 22.2.2003 to 4.8.2004 the respondent workman worked again. This is stated in the supplementary counter affidavit dated 4/6.4.2005 to which no reply has been filed by the petitioner. Therefore it is admitted to parties that the respondent workman had worked between the period from 22.2.2003 to 4.8.2004. The respondent workman has also stated in para 3 of the said affidavit that he was paid salary at the rate of Rs. 2130.54 per month.
5. When the first stay order was passed, the back wages that had become payable to the respondent workman under the award had been stayed but reinstatement had not been stayed. Petitioner corporation however did not reinstate the respondent workman from the year 1992 to the year 2002 and even though this benefit was granted under the award. It deprived the workman on the basis of its unequal strength and did not allow the workman to be reinstated.
6. The facts of the case are that the respondent workman claimed that he was working with the petitioner corporation as casual labourer from the year 1973 onwards and had been wrongly terminated w.e.f. 1.10.1974 in. violation of the provisions of Section 6-N of the U.P. Industrial Disputes Act, as he had completed 240 days of service before the date of termination. The matter was sent for conciliation but conciliation failed. During the course of conciliation, the petitioner corporation raised an objection that the workman had been terminated in the year 1974 but he was raising his claim in the year 1989 and therefore the dispute was being raised belatedly. The conciliation officer, while hearing the conciliation case, passed an order which is appended as Annexure CA-2 to the counter affidavit by which he condoned the delay in filing the industrial dispute that the respondent workman had given a plausible explanation for the delay.
7. Thus, it is clear that the petitioner was aware of the fact that there was a dispute raised by the respondent workman, which he was agitating and the petitioner corporation had duly participated in C.B. case no. 52 of 1969. But the conciliation failed, the matter was referred to the Labour Court for making reference under Section 4-K of the U.P. Industrial Disputes Act. The reference was made in the year 1971 which reads as under:
KYA SEVAYOJKO DWRA APNE SHRAMIK BRAHM SINGH SON OF LATUR SINGH KO DINANK 1.10.74 SE KAYA SE PRATHAK/VANCHIT RAKHNA ANUCHIT TATHA/ATHWA AVAIDHANIK HAI, YADI HA, TO SAMBANDHIT SHRAMIK KYA LAB/ANUTOSH (RELIEF) PANE KA ADHIKARI HAI TATHA ANYA KIS VIVRAN SAHIT.
8. When the matter was initiated before the Labour Court, it was received before the Labour Court on 7.2.1991, which fixed 23.3.1991 as the date for filing the written statement before the Labour Court. On 23.3.1991 the workman filed his written statement but the summons sent to the petitioner corporation by registered post were returned. The next date fixed was 1.5.1991. The workman prayed that the employer be served at the new address. The order-sheet, which is on record as Annexure 3 to the writ petition, records that on 1.5.1991 registered summons were sent at the new address but it was not returned and it was ordered that in respect of respondent no. 2 ex. parte proceedings shall be taken. Respondent no. 1 in the case was U.P. State Electricity Board, Electricity Maintenance, IVth Sub- Division, Shamli, Muzaffarnagar, and respondent no. 2 is U.P. State Electricity Board (Electricity Maintenance), Muzaffarnagar, through its Executive Engineer. It is stated that the petitioner had been working at the Shamli Depot with the respondent No. l.
9. On 1.5.1991 an order was also passed that for the employer no. 1 summons had been sent by registered post but was not returned. For the respondent no. 2 proceedings were to commence ex. parte. The order also records that service for the employer no. 1 was awaited and therefore a date was fixed for 30.5.1991.
10. On 30.5.1991 the workman was present but the employer no. 1 i.e. Shamli Maintenance Department, was not present. On 30.5.1991 again summons were sent by the ordinary post and a date was fixed on 4.7.1991.
11. On 4.7.1991 the employer did not turn up again and an order was passed to proceed against the employer ex. parte. A date was fixed on 8.7.1991.
12. On 8.7.1991 the workman was heard ex parte and he also produced his evidence on that date; the award was reserved and was delivered on 8.7.1991 and published thereafter.
13. Learned counsel for the petitioner corporation Sri Ranjit Saxna has argued axial his usual vehemence and has is stated that the entire award has been passed in a most arbitrary and hurried manner and has been passed ex. parte against the employer without giving to the employer any opportunity of hearing. He has argued that from the order sheet it appears that notice was never received by the petitioner corporation. This argument raised by Sri Ranjit Saxena is in the teeth of the document, which has been placed by him on record as Annxure 1 to the writ petition, which is a letter dated 14.3.1991. This letter dated 14.3.1991 is a letter which has been sent from one department of the petitioner corporation to Shamli Depo apprising them the pendency of the present industrial dispute.
14. Therefore, the very first argument of the petitioner corporation cannot stand on the face of its own document. There is no dispute that the petitioner corporation had knowledge of the pendency of industrial dispute.
15. The second argument as raised by Sri Ranjit Saxena is that there was an inordinate delay infilling of this reference. The termination order was of 1974 and there reference was made in the year 1991.
16. The facts of the case are that the respondent workman was agitating his claim before the petitioner corporation and the industrial dispute was raised in C.B. case. Since all these years have been spent by the respondent workman in agitating his claim before the petitioner corporation itself, the conciliation officer condoned the delay during the course of conciliation. Petitioner corporation had been participating in the conciliating proceedings and also had knowledge that conciliation failed. It cannot be said that petitioner corporation did not have knowledge of the pendency of the industrial dispute. Petitioner corporation has also not stated in any para of the petition that delay in raising of the reference has prejudiced their case in any way i.e. that either evidence is not possible or defence documents are not available.
17. On the other hand Sri Shyam Narain has drawn attention of the Court to Sub-rules (4) and (5) of Rule 12 of U.P.I.D. Rules which are quoted below:
(4) The hearing shall ordinarily be continued from day to day, and arguments shall follow immediately after the closing of evidence.
(5) The Labour Court or the Tribunal, as the case may be, shall not ordinarily grant an adjournment for a period exceeding one week at a time, and not more than three adjournments at the instance of any one of the parties to the dispute shall be granted: Provided that in a very special case only the Labour Court or the Tribunal, as the case may be, may for reasons to be recorded in writing, grant an adjournment exceeding a week, or more than three adjournments at the instance of any one of the parties to the dispute.
18. He has also referred to the amended provisions that C.P.C. i.e. Rule 19A while arguing that the summons which were issued by the Labour Court would be deemed to have sufficient if there was evidence in favour to show that it was properly served. In support of his contention, he has relied on a decision of this Court rendered in the case of U.P. Avas Evam Vikas Parishad v. Presiding Officer, Industrial Tribunal (4), U.P. Agra and Ors. decided on 7.10.2005.
19. It is argued by Sri Shyam Narain that in any case there is sufficient material on record to show that twice registered summons were sent and once it was sent by ordinary post. This argument of Sri Shyam Narain supported by fact that the petitioner himself has appended a document dated 14.3.1991 before the matter proceeded ex parte, which shows hat indeed they had the knowledge of case but deliberately did not appear before the Labour Court.
20. It is also strange that although the objection had been filed saying that the award was passed ex parte against the petitioner, yet no application was filed by the petitioner corporation to get the matter restored or to get the order recalled as provided under Rule 16 (2) of Rules of 1947. In the present writ petition also, the petitioner corporation has not disclosed when they gained knowledge of the award passed against them. This is also a circumstance, which lends credence to the belief of the court that in fact the pendency of the industrial dispute was within the knowledge of the petitioner corporation which chose not to participate in the proceedings before the Labour Court.
21. In reply to the arguments of Sri Shyam Narain, Sri Ranjit Saxena has argued that apart from other contentions as raised by him, the award of full back wages to the respondent workman is also bad, arbitrary and without application of mind and proper consideration of facts and circumstances of the case and without any application of mind to the issue as to whether the workman was actually gainfully employed or not. Sri Saxena has argued that full back wages has been granted to the respondent workman without recording any finding that he was not gainfully employed during the entire period or any part of the said period.
22. Having heard learned Counsel for the parties at length and have perused the record, I am of the opinion that the Labour Court granted adequate opportunity to the petitioner corporation to contest the case but the petitioner corporation chose not to do so as has been recorded earlier. They did not even file any application for the recall of the award. Even in the present writ petition, there is no whisper about the date of knowledge of the award and they challenged the award in the present writ petition and obtained stay order of the back wages.
23. Petitioner corporation, in fact, denied the benefit of reinstatement to the workman despite the fact that reinstatement had not been stayed by this Court and when the interim order was discharged on 9.9.2002, they however permitted the respondent workman to work between the period 22.2.2003 to 4.8.2004. When the matter had been dismissed in default, it was subsequently restored and thereafter they kept the workman out of work.
24. However the submissions as made by the learned Counsel for the petitioner on account of back wages have substance. Labour Court has not discussed anywhere whether the workman was actually employed or not but has simply granted full back wages to the respondent workman. It is well-settled that before granting full back wages, even where the workman is reinstated, the Labour Court must apply its mind before granting full back wages or partial back wages. The grant of full back wages in the present case is wholly unjustified.
25. Trudy on the case of Kendriya Vidyalaya Sangathan v. S.C. Sharma 2005 SC C (L&S) 270, wherein the apex court has held that the payment of back wages involves a discretionary relief and each case has to be dealt with on its own peculiar facts and circumstances. The Labour Court must apply to its mind to the question while determining the entitlement of a person to back wages. It is not for the employer to show that the employee is gainfully employed, rather it is a burden on the employee to show that he was not gainful employed.
26. In another decision of the Hon'ble Supreme Court as reported in the case of General Manager, Haryana Roadways v. Rudhan Singh 2005 SCC (L & S) 716 wherein the Full Bench of the apex court has held that order for payment of back wages should not be passed in a mechanical manner but a host of factors such as the method and nature of appointment, qualifications of workman, length of service and availability of alternative work have to be considered.
27. The apex court has reiterated its view in the case of U.P. State Brassware Ltd. v. Udai Narain Pandey reported in JT 2005 (10) SC 344.
28. Thus, the sum and substance of the matter is that it is not the absolute consequence of reinstatement that in every case, full back wages are to be granted, but that the issue of grant of back wages must be gone into and the grant, if any, of back wages must be given proper consideration which shall of course very from case to case.
29. Taking into consideration the entire facts and circumstances of the case and in view of the law laid down by the apex court, I modify the impugned award of the Labour Court in so far as it relates to the back wages and hold that no back wages shall be paid to the workman. However the award of the reinstatement passed in favour of workman shall remain as it is. The award of reinstatement shall be complied with by the petitioner corporation within a period of two months.
30. In the result, the writ petition is partly allowed but there will be no order as to costs.