# Ltd v. Shamim Mirza, 2009 Lab our

- **Citation:** (2013) 1 ILRA 234
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-21
- **Case number:** Civil Misc. Writ Petition No. 9505 of 2013
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ltd-v-shamim-mirza-2009-lab-our-42450
- **Pages:** 2

## Headnote

Constitution of India, Article 226-Award
with direction to reinstatement and in
leu of back wages compensation of Rs.
50,000-received
without
protestwhether can be allowed to challenge?-
held-"no"-apart from finding regarding
successful working during this periodnot
specifically
denied-can
not
be
interfered by Writ Court.

Held: Para-5
The
Court
further
finds
that
compensation in lieu of back wages has
already been received by the petitioner
without any protest. Once the award has
been complied with and the amount of
compensation has been received by the
workman without any protest, it is no
longer open for him to turn around and
approach the writ court questioning the
denial of back wages. Such practice at
the behest of the workman at this
belated stage is deprecated.

Case Law discussed:
2009 Labour Industrial Cases 415; 2005 (5)
SCC 591; 2005 (2) SCC 363

## Text

234 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2013

BEFORE
THE HON'BLE TARUN AGARWALA,J.

Civil Misc. Writ Petition No. 9505 of 2013

Kedar Nath IInd

...Petitioner
Versus
Presiding
Officer,
Labour
Court,
Bareillyand Others ...Respondents

Counsel for the Petitioner:
Sri Satyendra Kumar Pandey

Counsel for the Respondents:
C.S.C.
Sri Samir Sharma
Sri A.K. Saxena

Constitution of India, Article 226-Award
with direction to reinstatement and in
leu of back wages compensation of Rs.
50,000-received
without
protestwhether can be allowed to challenge?-
held-"no"-apart from finding regarding
successful working during this periodnot
specifically
denied-can
not
be
interfered by Writ Court.

Held: Para-5
The
Court
further
finds
that
compensation in lieu of back wages has
already been received by the petitioner
without any protest. Once the award has
been complied with and the amount of
compensation has been received by the
workman without any protest, it is no
longer open for him to turn around and
approach the writ court questioning the
denial of back wages. Such practice at
the behest of the workman at this
belated stage is deprecated.

Case Law discussed:
2009 Labour Industrial Cases 415; 2005 (5)
SCC 591; 2005 (2) SCC 363

(Delivered by Hon'ble Tarun Agarwala,J.)

1. Heard the learned counsel for the
petitioner and Sri A.K.Saxena for the
respondents.

2. The award of the Labour Court was
published in the year 2009 directing
reinstatement of the workman and in lieu of
back wages compensation of Rs.50,000/-
was awarded. The services of the petitioner
workman was terminated in the year 1991,
which was referred for adjudication in the
year 1993. The award was given in the year
2009. The employers have accepted the
award and have reinstated the workman and
has also paid the compensation of
Rs.50000/- in lieu of back wages.

3. The petitioner has now approached
this Court challenging that part of the award
by which back wages has been denied.

4. After hearing the learned counsel
for the petitioner, the Court is of the
opinion, that the petitioner is not entitled
for any relief. In the first instance the
Court finds, that the award was made in
the year 2009. No explanation has been
given by the petitioner as to why he has
approached
the
Court
belatedly.
Consequently, on the ground of laches,
the Court is not inclined to interfere in the
impugned award.

5. The Court further finds that
compensation in lieu of back wages has
already been received by the petitioner
without any protest. Once the award has
been complied with and the amount of
compensation has been received by the
workman without any protest, it is no
longer open for him to turn around and
approach the writ court questioning the
denial of back wages. Such practice at the
behest of the workman at this belated
stage
is
deprecated.
1 All] Kedar Nath IInd Vs. Presiding Officer, Labour Court, Bareilly and Others
235

6. The learned counsel for the
petitioner submitted that the parameter
evolved by the Supreme Court in the case
of Kanpur Electric Supply Company
Ltd. Vs. Shamim Mirza, 2009 Lab our
Industrial Cases 415, has not been taken
into consideration by the Labour Court
while denying the grant of back wages. In
the said decision the Supreme Court held
as under:

"It is true that once the order of
termination of service of an employee is
set
aside,
ordinarily
the
relief
of
reinstatement
is
available
to
him.
However, the entitlement of an employee
to get reinstated does not necessarily
result in payment of full or partial backwages,
which
is
independent
of
reinstatement. While dealing with the
prayer of back- wages, factual scenario,
equity and good conscience and a number
of other factors, like the manner of
selection; nature of appointment; the
period for which the employee has
worked with the employer etc.; have to be
kept in view. All these factors are
illustrative and no precise formula can be
laid down as to under what circumstances
full or partial back-wages should be
awarded. It depends upon the facts and
circumstances of each case."

7. Similarly in General Manager,
Haryana Roadways vs. Rudhan Singh,
2005 (5) SCC 591, the Supreme Court
held that there cannot be a straight jacket
formula for awarding the relief of back
wages and that an order of back wages
should not be passed in a mechanical
manner. A host of factors like manner,
method of selection and appointment and
nature of appointment whether adhoc,
short term daily wages, temporary or
permanent and length of service should be
taken into consideration before granting
back wages.

8. Similarly in Kendriya Vidyalaya
Sanghatan
and
another
vs.
S.C.Sharma,
2005(2)SCC
363,
the
Supreme Court held that applying the
aforesaid
principle
the
inevitable
conclusion is, that the respondent was not
entitled
to
full
back
wages.
For
determining the entitlement of back
wages the employee has to show that he
was not gainfully employed and that the
initial burden was on him.

9. In the instance case the Labour
Court has held that there is a presumption
that the workman was gainfully employed
as he was a driver. No evidence has been
filed by the Workman before the Labour
Court to indicate that he was not gainfully
employed during the intervening period.
Further, there is nothing on record to
show the nature of the appointment of the
workman, the length of appointment and
whether the workman was appointed on a
temporary or a permanent post. In the
absence of all these evidence, this Court
does not find any reason to interfere in the
impugned award.

10. Writ petition fails summarily
and is dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI,J.

Civil Misc. Writ Petition No. 10307 of 2013

Priyanka Pandey And Anr.
...Petitioner
Versus
State Of U.P.Thru Secy & Ors...Respondents