# State of U.P. & Ors v. The Labour Court Gorakhpur & Anr

- **Citation:** (2023) 5 ILRA 1421
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-08
- **Case number:** Writ-C No. 3192 of 2017
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-the-labour-court-gorakhpur-anr-50114
- **Pages:** 13

## Headnote

Labour Laws - Constitution of India, 1950
- Article 14, 15, 226 - U.P. Industrial
Dispute Act, 1947 - Sections 6-N, 6-P & 6Q, 11)(a) - Evidence Act, 1872 - Sections
114 & 114(g) : - Writ Petition - challenging
the impugned Award - Termination of Services -
Industrial dispute - Labour Court, declares the
order of termination of services as improper and
illegal with directions to reinSt. the workman
along with 50% of back-wages and further, he is
entitled for full salary from the date of
publication of Award - court finds that,
petitioner/employer by not producing oral or
documentary evidence to rebut the contention
of the workman and also failed either to plead
or to prove in any manner that the workman
was gainfully employed so as to deny him backwages - would be subject to adverse inference
which has rightly been drawn by the Labour
court - held, on this score, no interference is
required in the impugned Award - and - it could
be a case of full back-wages, but the Court is
not inclined to enhance the same since writ
petition has not been filed by the workman -
directions issued to for execution of Award
within four months accordingly - writ petition
dismissed.

Writ Petition Dismissed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,973 of 42,595. This is a partial read: ask again with offset=39973 for what follows._

5 All. State of U.P. & Ors. Vs. The Labour Court Gorakhpur & Anr.
1421
concerned, in the present bunch of cases
would be entitled to draw wages at the
minimum of the pay scale (at the lowest
grade, in the regular pay scale), extended
to regular employees holding the same
post."

13. The Supreme Court after
considering all the earlier law settled on the
issue has again reiterated that principle of
'equal pay for equal work', which has
emerged by interpretation of different
provision
of
the
Constitution
and
expounded through a large number of
judgments of Supreme Court, continues to
be the law declared by Supreme Court. The
same is binding upon all. The same is
extended to temporary employees including
work charge, daily wage, casual, adhoc,
contractual etc. Thus, it held that they are
entitled to draw wages on minimum of pay
scale (at the lowest grade, in the regular
pay scale), extended to regular employees
holding the same post.

14. In the aforesaid circumstances,
petitioner, who is continuously working since
2013 except for artificial breaks, is also entitled
for payment of minimum of pay scale, that is
being given to regular employees providing
same work in respondent department.

15. The respondents again try to hide
behind the argument that they have not engaged
any Class-IV employee in the Laboratory. The
Laboratory itself is part of Horticulture and Food
Processing department. It is not in dispute that
regular Class-IV employees are working in
Horticulture department. It is also not in dispute
that in absence of petitioner, other Class-IV
employees of the department would be bound to
perform duties that are being performed by
petitioner. Therefore, petitioner is entitled to
minimum of pay scale that any Class-IV
regularly appointed employee would be entitled
to, in case petitioner is not available for
performing his duties.

16. Submission of respondent-State that
petitioner is engaged through a service provider
agency, therefore, he is not entitled for minimum
of pay scale also does not have any force as in
Para-60 of the aforesaid judgment, Supreme
Court has held that the said benefit is available to
all
temporary
employees
whatever
their
nomenclature may be.

17. Merely by engaging daily wage
employees through a service provider agency,
State Government cannot shy-away from its
responsibility of providing minimum of pay
scale which it is bound to pay in accordance with
law.

18. Hence, impugned order dated
15.7.2019 cannot stand and is set aside.
Respondents are directed to pay minimum of pay
scale to petitioner as is being paid to similarly
situated employees performing the same work in
respondent department forthwith without any
delay.

19. Accordingly, writ petition stands
allowed.
----------
(2023) 5 ILRA 1421
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 3192 of 2017

State of U.P. & Ors. ...Petitioners
Versus
The Labour Court Gorakhpur & Anr.
 ...Respondents

Counsel for the Petitioners:
1422 INDIAN LAW REPORTS ALLAHABAD SERIES
Kritika Singh, C.S.C., Sri Dhananjay Singh,
S.C.

Counsel for the Respondents:
Sri Gopal Narain Srivastava, S.C., Sri
Sudhanshu Narain

Labour Laws - Constitution of India, 1950
- Article 14, 15, 226 - U.P. Industrial
Dispute Act, 1947 - Sections 6-N, 6-P & 6Q, 11)(a) - Evidence Act, 1872 - Sections
114 & 114(g) : - Writ Petition - challenging
the impugned Award - Termination of Services -
Industrial dispute - Labour Court, declares the
order of termination of services as improper and
illegal with directions to reinSt. the workman
along with 50% of back-wages and further, he is
entitled for full salary from the date of
publication of Award - court finds that,
petitioner/employer by not producing oral or
documentary evidence to rebut the contention
of the workman and also failed either to plead
or to prove in any manner that the workman
was gainfully employed so as to deny him backwages - would be subject to adverse inference
which has rightly been drawn by the Labour
court - held, on this score, no interference is
required in the impugned Award - and - it could
be a case of full back-wages, but the Court is
not inclined to enhance the same since writ
petition has not been filed by the workman -
directions issued to for execution of Award
within four months accordingly - writ petition
dismissed.

Writ Petition Dismissed. (E-11)

List of Cases cited:

1. Assistant Engineer, Rajasthan Development
Corporation & anr. Vs Gitam Singh - (2013) 5
SCC 136,

2. Deepali Gundu Surwase Vs Kranti Junior
Adhyapak & ors.: 2013 (139) FLR 541 (SC),

3. Allahabad Bank & ors. Vs Avtar Bhushan
Bhartiya - SLP (Civil) No.32518, decided on
22.04.2022,

4. Krishan Singh Vs Executive Engineer, Haryana
St.
Agricultural
Marketing
Board,
Rohtak
(Haryana) - (2010) 3 SCC 637,

5. Devinder Singh Vs Municipal Council, Sanaur:
(2011) 6 SCC 584,

6. St. of U.P. Vs Charan Singh: 2015 LawSuit
(SC) 302,

7. Jasmer Singh Vs St. of Har. & anr.: (2015) 4
SCC 458,

8. R.M. Yellatti Vs Assistant Executive Engineer:
(2006) 1 SCC 106,

9. Harjinder Singh Vs Punjab St. Warehousing
Corporation: (2010) 3 SCC 192,

10. St. of U.P. Vs Amar Nath Yadav: 2014 Law
Suit (SC) 32,

11. Director of Horticulture & anr. Vs H.A.
Kumar: 2013 (138) FLR 1089 (SC),

12. Gauri Shanker Vs St. of Raj.: 2015 Law Suit
(SC) 357,

13. Deep Chandra Vs St. of U.P.: (2001) 10 SCC
606,

14. Rajya Krishi Utpadan Mandi Parishad Vs
Prescribed Authority, Industrial Tribunal (V),
U.P., - 2002 (2) UPLBEC 1475,

15. St. of U. P. Vs Labour Court, Haldwani -
1998 Law Suit (All) 788,

16. Maharashtra SRTC Vs Casteribe Rajya
Parivahan Karmchari Sanghatana - (2009) 8 SCC
556,

17. Hari Nandan Prasad Vs F.C.I. (2014) 7 SCC
190,

18. Haryana Roadways Vs Rudhan Singh (2005)
5 SCC 591,

19. Bhuvnesh Kumar Dwivedi Vs Hindalco
Industries Ltd. (2014) 11 SCC 85,
5 All. State of U.P. & Ors. Vs. The Labour Court Gorakhpur & Anr.
1423
20. M/s Hindustan Tin Works Pvt. Ltd. Vs The
Employees of M/s Hindustan Tin Works Pvt. Ltd
& ors.: AIR 1979 SC 75,

21. Bhuvanesh Kumar Dwivedi Vs M/s Hindalco
Industries Ltd: 2014 (142) FLR 20,

22. Mackinnon Mackenzie & Company Ltd. Vs
Mackinnon Employees' Union: 2015 (145) FLR
184,

23. Civil Appeal No. 6890/2022 Jeetubha
Khansangji Jadeja Vs Kutchh District Panchayat,
judgment dated 23.09.2022 (Arising out of
Special Leave Petition (Civil) No. 8393/2022).

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. This writ petition has been filed by
State of U.P. through Principal Secretary,
Irrigation, Lucknow and officials of the
said Department challenging the impugned
award dated 08.01.2016 passed by the
Labour Court, Gorakhpur, which was
notified on the notice board on 07.06.2016,
in Adjudication Case No.170 of 1992
whereby the Labour Court has held
termination of services of the respondent
no.2 with effect from 01.01.1991 as
improper and illegal with a further
direction for reinstatement of the said
respondent maintaining continuity in his
past services along with back-wages at the
rate of 50%. A further direction has been
issued that the respondent no.2 shall be
entitled for full salary from the date of
publication of the award.

2. The facts of the case are that the
respondent no.2 (hereinafter referred to as
the workman) came up with a case that he
was regularly working in the department of
Irrigation since October, 1988 as Camp
Dhawak and was performing duties relating
to distribution of post. It was further
contended that all of a sudden, his services
were orally terminated on 01.01.1991 and
his salary with effect from March, 1990 to
December, 1990 was also not paid
regarding which the workman had earlier
filed
a
case
before
the
Controlling
Authority, Deoria under the Payment of
Wages Act which was pending. It was
further contended that the nature of the
work performed by the workman was
permanent and the juniors like Indrasan,
Keshav and Shrawan, etc were retained in
service; that the provisions of Sections 6-N,
6-P and 6-Q of the U.P. Industrial Disputes
Act, 1947 and Rule 42 of the Rules were
not complied with; that the workman had
worked for a period of more than 240 days;
and that he was wholly unemployed after
the termination of his services despite best
efforts.

3. The workman pleaded that the
matter was registered as an Adjudication
Case No.170 of 1992 pursuant to reference
made by the Deputy Labour Commissioner,
Gorakhpur where the question referred was
as to whether termination of service of the
workman by the Department with effect
from 01.01.1991 was proper and/or legal ?
If
not,
as
to
what
benefit/
relief/
compensation the workman was entitled to
receive ?

4. The Department also made its
defence stating that the services of the
workman were not terminated and that
there was no question for payment of salary
to him with effect from March, 1990 to
December, 1990 as he had not worked
during the said period. The Court finds that
Annexure No.2 to the writ petition is a
copy of the written statement filed by the
Department in which nothing special has
been averred except the aforesaid, however,
in the impugned award, the Labour Court
has discussed the defence taken by the
Department also to the effect that the
1424 INDIAN LAW REPORTS ALLAHABAD SERIES
workman was working as a daily-wager as
per the requirements and he used to be paid
wages as per the work performed by him.
Therefore, it appears that there is some
additional written statement filed by the
Department which has not been brought on
record in support of the pleadings, however
the Court will consider this defence also as
the same has been dealt with by the Labour
Court in the award impugned.

5. Parties led evidence in support of
their respective cases. Oral testimony of the
workman has been filed as Annexure
No.CA-1 to the counter affidavit in which
the workman stated that he used to get
monthly salary and that his services were
orally
terminated
with
effect
from
01.01.1991; that for getting payment of
salary with effect from March, 1990 to
December, 1990, he had filed P.W. Case
No.46 of 1991 which was decided in his
favour on 17.02.1995 against which order,
the employer filed a Misc. Case No.3 of
2000, which was also dismissed. It was
further stated on oath that though the
services of the workman had been illegally
terminated,
juniors
to
him,
namely,
Indrasan, Keshav and Shrawan were
retained in service; that since the date of
termination the workman was thoroughly
unemployed and could not get job despite
search; that despite order passed by the
Labour Court on his application 17-D, the
documents were not produced by the
Department. The workman also proved
documents filed by him which included
muster roll. The workman was cross
examined and specifically denied the
suggestion made by the Department that it
was wrong to say that he was working on
daily-wage basis. The workman also stuck
to his stand regarding retainment of persons
junior to him in the services and also to the
fact that the Department had not produced
the muster roll, except the muster roll of
1990 which the workman had got and filed
as paper no.6 on record.

6.

The
Labour
Court,
after
considering the pleadings of the parties and
having perused the record, came to the
conclusion that the working of more than
240 days period stood proved in view of
the order passed by the Competent
Authority in P.W. Case No.46 of 1991. The
Labour Court also drew adverse inference
against the Department for not filing
attendance register/ muster roll for the
period with effect from October, 1988 till
January, 1991, despite application 17-D
filed by the workman in this regard which
was allowed. The Labour Court also
observed
that
the
Department
just
completed its formality by producing
muster roll of only July, 1990 stating that in
July, 1990 the workman had worked only
for a period of 26 days.

7. As regards the contention of the
employer that the workman was working in
the capacity of daily-wager, the Labour
Court, after discussing various authorities,
recorded a finding that even then the
Department
should
have
ensured
compliance of provisions of the Act and the
workman
would
be
entitled
for
reinstatement in his service as it was
established that he had worked for more
than 240 days in a calendar year.
Accordingly, the award for reinstatement of
the workman by maintaining continuity in
past services along with payment of 50%
back-wages was passed.

8. I have heard Sri Dhananjay Singh,
learned Standing Counsel for the State -
petitioners and Sri Sudhanshu Narain,
learned counsel for the respondents and
perused the record.
5 All. State of U.P. & Ors. Vs. The Labour Court Gorakhpur & Anr.
1425

9. The contention of the learned
Standing Counsel is to the effect that the
award of the Labour Court is not
sustainable as the respondent no.2 was
merely a daily-wager employee and,
therefore, his reinstatement could not be
ordered. It is further argued that the
respondent no.2 himself voluntarily left the
job and wrongly instituted the case. It is
further argued that even if the case of the
workman is accepted, he worked for a very
short period of two years and therefore
keeping in view of the said tenure of
alleged service, direction for reinstatement
in service by maintaining past continuity
and payment of 50% back-wages is illegal.
Reliance has also been placed on the
judgment of the Supreme Court in the case
of
Assistant
Engineer,
Rajasthan
Development Corporation and another Vs.
Gitam Singh: (2013) 5 SCC 136.

10. Per contra, learned counsel for
the respondent-workman argued that since
the workman was working in the regular
capacity and was getting monthly salary
and had established his case not only before
the Labour Court but also before the
Competent Authority under Payment of
Wages Act where he succeeded against the
Department,
oral
termination
of
his
services with effect from 01.01.1991
without following the provisions of the Act
of 1947 is illegal and since the juniors to
the workman were retained in service and
there is sufficient evidence to demonstrate
that the workman was not gainfully
employed after termination of his services,
the award of Labour Court is just and
proper
and
does
not
call
for
any
interference.

11. In support of his submission,
learned
counsel
for
the
respondentworkman
has
relied
upon
following
authorities:-

(i) Deepali Gundu Surwase Vs.
Kranti Junior Adhyapak and others: 2013
(139) FLR 541 (SC);

(ii) Allahabad Bank and others
Vs. Avtar Bhushan Bhartiya in Special
Leave Petition (Civil) No.32554 of 2018,
decided on 22.04.2022:

(iii) Krishan Singh Vs. Executive
Engineer, Haryana State Agricultural
Marketing Board, Rohtak (Haryana):
(2010) 3 SCC 637;

(iv)
Devinder
Singh
Vs.
Municipal Council, Sanaur: (2011) 6 SCC
584;

(v) State of U.P. Vs. Charan
Singh: 2015 LawSuit (SC) 302;

(vi) Jasmer Singh Vs. State of
Haryana and another: (2015) 4 SCC 458;

(vii)
R.M.
Yellatti
Vs.
Assistant Executive Engineer: (2006)
1 SCC 106;

(viii)
Harjinder
Singh
Vs.
Punjab State Warehousing Corporation:
(2010) 3 SCC 192;

(ix) State of U.P. Vs. Amar Nath
Yadav: 2014 Law Suit (SC) 32;

(x) Director of Horticulture and
another Vs. H.A. Kumar: 2013 (138) FLR
1089 (SC);

(xi) Gauri Shanker Vs. State of
Rajasthan: 2015 Law Suit (SC) 357;
1426 INDIAN LAW REPORTS ALLAHABAD SERIES

(xii) Deep Chandra Vs. State of
U.P.: (2001) 10 SCC 606;

(xiii)
Rajya
Krishi
Utpadan
Mandi Parishad Vs. Prescribed Authority,
Industrial Tribunal (V), U.P., Meerut:
2002 (2) UPLBEC 1475; and

(xiv) State of Uttar Pradesh Vs.
Labour Court, Haldwani: 1998 Law Suit
(All) 788.

12. Relying upon the aforesaid
authorities, the contention of the learned
counsel for the respondent-workman is that
the although the workman was working in a
regular capacity, even if he is treated as a
daily-wager, the Industrial Law does not
make
any
distinction
between
the
workmen/employees and the source of
employment, method of recruitment, the
terms
and
conditions
of
employment/contract
of
service,
the
quantum of wages/paid and the mode of
payment are not at all relevant for deciding
as to whether a person is a workman or not.
Further submission is that since oral
termination has been found to be illegal
coupled with the fact that the Labour Court
has recorded pure finding of fact that the
workman had worked for more than 240
days and that the Department had failed
to lead any documentary or oral evidence
against the contention of the workman,
the award is perfectly in accordance with
law.

13. I have considered the arguments
advanced and perused the record.

14. In Deepali Gundu Surwase
(supra), the Supreme Court after discussing
the entire law relating to reinstatement and
back-wages, in paragraph 33 of the
judgment, has held as follows:-

33. The propositions which can
be culled out from the aforementioned
judgments are:

i)
In
cases
of
wrongful
termination of service, reinstatement with
continuity of service and back wages is the
normal rule.

ii) The aforesaid rule is subject to
the rider that while deciding the issue of
back wages, the adjudicating authority or
the Court may take into consideration the
length of service of the employee/workman,
the nature of misconduct, if any, found
proved against the employee/workman, the
financial condition of the employer and
similar other factors.

iii) Ordinarily, an employee or
workman whose services are terminated
and who is desirous of getting back wages
is required to either plead or at least make
a
statement
before
the
adjudicating
authority or the Court of first instance that
he/she was not gainfully employed or was
employed on lesser wages. If the employer
wants to avoid payment of full back wages,
then it has to plead and also lead cogent
evidence
to
prove
that
the
employee/workman was gainfully employed
and was getting wages equal to the wages
he/she
was
drawing
prior
to
the
termination of service. This is so because it
is settled law that the burden of proof of the
existence of a particular fact lies on the
person who makes a positive averments
about its existence. It is always easier to
prove a positive fact than to prove a
negative fact. Therefore, once the employee
shows that he was not employed, the onus
lies on the employer to specifically plead
and prove that the employee was gainfully
employed and was getting the same or
substantially similar emoluments.
5 All. State of U.P. & Ors. Vs. The Labour Court Gorakhpur & Anr.
1427

iv) The cases in which the Labour
Court/Industrial Tribunal exercises power
under Section 11-A of the Industrial
Disputes Act, 1947 and finds that even
though the enquiry held against the
employee/workman is consistent with the
rules of natural justice and / or certified
standing orders, if any, but holds that the
punishment was disproportionate to the
misconduct found proved, then it will have
the discretion not to award full back wages.
However, if the Labour Court/Industrial
Tribunal finds that the employee or
workman is not at all guilty of any
misconduct or that the employer had
foisted a false charge, then there will be
ample justification for award of full back
wages.

v) The cases in which the
competent Court or Tribunal finds that the
employer has acted in gross violation of the
statutory provisions and/or the principles
of natural justice or is guilty of victimizing
the employee or workman, then the
concerned Court or Tribunal will be fully
justified in directing payment of full back
wages. In such cases, the superior Courts
should not exercise power under Article
226 or 136 of the Constitution and interfere
with the award passed by the Labour
Court, etc., merely because there is a
possibility of forming a different opinion on
the entitlement of the employee/workman to
get full back wages or the employer's
obligation to pay the same. The Courts
must always be kept in view that in the
cases of wrongful / illegal termination of
service, the wrongdoer is the employer and
sufferer is the employee/workman and there
is no justification to give premium to the
employer of his wrongdoings by relieving
him of the burden to pay to the
employee/workman his dues in the form of
full back wages.

vi) In a number of cases, the
superior Courts have interfered with the
award
of
the
primary
adjudicatory
authority on the premise that finalization of
litigation has taken long time ignoring that
in majority of cases the parties are not
responsible for such delays. Lack of
infrastructure
and
manpower
is
the
principal cause for delay in the disposal of
cases. For this the litigants cannot be
blamed or penalised. It would amount to
grave injustice to an employee or workman
if he is denied back wages simply because
there is long lapse of time between the
termination of his service and finality given
to the order of reinstatement. The Courts
should bear in mind that in most of these
cases, the employer is in an advantageous
position
vis-à-vis
the
employee
or
workman. He can avail the services of best
legal brain for prolonging the agony of the
sufferer, i.e., the employee or workman,
who can ill afford the luxury of spending
money on a lawyer with certain amount of
fame. Therefore, in such cases it would be
prudent to adopt the course suggested in
Hindustan Tin Works Private Limited v.
Employees of Hindustan Tin Works Private
Limited (supra).

vii) The observation made in J.K.
Synthetics Ltd. v. K.P. Agrawal (supra) that
on reinstatement the employee/workman
cannot claim continuity of service as of
right is contrary to the ratio of the
judgments of three Judge Benches referred
to hereinabove and cannot be treated as
good law. This part of the judgment is also
against the very concept of reinstatement of
an employee/workman."

15. In so far as the issue regarding
entitlement
of
a
daily-wager
for
reinstatement or back-wages, the Supreme
Court in Krishan Singh (supra) passed an
1428 INDIAN LAW REPORTS ALLAHABAD SERIES
award in favour of a person who was said
to be engaged as a daily-wager and directed
his reinstatement as a daily-wager with
50% back-wages.

16. Similar view was taken by the
Supreme Court in the case of Jasmer
Singh (supra) where it was held that non
compliance with the statutory provisions in
case of termination of services even a
daily-wager worker would justify award of
reinstatement with back-wages.

17. In R.M. Yellatty (supra),
regarding mischief of the Department in
connection with termination of services of
an alleged daily-wager, the Supreme Court
directed reinstatement of a workman as a
daily-wager in the nominal muster roll and
it was held that daily waged earners are not
regular employees. They are not given
letters of appointments. They are not given
letters of termination. They are not given
any written document which they could
produce as proof of receipt of wages. Their
muster rolls are maintained in loose sheets.
Even
in
cases,
where
registers
are
maintained
by
the
Government
departments, the officers/clerks making
entries do not put their signatures. Even
where signatures of clerks appear, the
entries are not countersigned or certified by
the appointing authorities.

18.

The
Supreme
Court
in
Maharashtra SRTC Versus Casteribe
Rajya Parivahan Karmchari Sanghatana
(2009) 8 SCC 556 held that the case of
State of Karanataka Vs. Umadevi does not
denude the Industrial and Labour Courts of
their statutory power under Section 30 read
with Section 32 of the MRTU and PULP
Act to order permanency of the workers
who have been victims of unfair labour
practice on the part of the employer under
Item 6 of Schedule IV where the posts on
which they have been working exist.
Umadevi cannot be held to have overridden
the powers of the Industrial and Labour
Courts in passing appropriate order under
Section 30 of the MRTU and PULP Act,
once unfair labour practice on the part of
the employer under Item 6 of Schedule IV
is established.

19. The Supreme Court in Hari
Nandan Prasad Versus Food Corporation
of India (2014) 7 SCC 190, upon
considering the aforementioned judgments
as to whether the principles enshrined in
Umadevi case are applicable observed as
follows:-

"34. A close scrutiny of the two
cases, thus, would reveal that the law laid
down in those cases is not contradictory to
each other. In U.P. Power Corporation,
this Court has recognized the powers of the
Labour Court and at the same time
emphasized that the Labour Court is to
keep in mind that there should not be any
direction of regularization if this offends
the provisions of Article 14 of the
Constitution,
on
which
judgment
in
Umadevi is primarily founded. On the other
hand, in Bhonde case, the Court has
recognized the principle that having regard
to statutory powers conferred upon the
Labour Court/Industrial Court to grant
certain reliefs to the workmen, which
includes the relief of giving the status of
permanency to the contract employees,
such statutory power does not get denuded
by the judgment in Umadevi's case. It is
clear from the reading of this judgment that
such a power is to be exercised when the
employer has indulged in unfair labour
practice by not filling up the permanent
post even when available and continuing to
workers on temporary/daily wage basis and
5 All. State of U.P. & Ors. Vs. The Labour Court Gorakhpur & Anr.
1429
taking the same work from them and
making them some purpose which were
performed by the regular workers but
paying them much less wages. It is only
when a particular practice is found to be
unfair labour practice as enumerated in
Schedule IV of MRTP and PULP Act and it
necessitates giving direction under Section
30 of the said Act, that the Court would
give such a direction."

20. The Supreme Court in Hari
Nandan Prasad case (supra) observed
that keeping in mind that industrial disputes
are settled by industrial adjudicator on
principles of fair play and justice concluded
that when there are posts available, in the
absence of any unfair labour practice the
Labour Court would not give direction for
regularization only because a worker has
continued
as
daily
wage
worker/adhoc/temporary
worker
for
number of years. Further, if there are no
posts available, such a direction for
regularization would be impermissible. In
the aforesaid circumstances giving of
direction to regularize such a person, only
on the basis of number of years put in by
such a worker as daily wager etc. may
amount to backdoor entry into the service
which is an anathema to Art. 14 of the
Constitution. Further, such a direction
would not be given when the concerned
worker does not meet the eligibility
requirement of the post in question as per
the Recruitment Rules. However, wherever
it is found that similarly situated workmen
are regularized by the employer itself under
some scheme or otherwise and the
workmen in question who have approached
Industrial/Labour Court are at par with
them, direction of regularization in such
cases may be legally justified, otherwise,
non-regularization of the left over workers
itself
would
amount
to
invidious
discrimination qua them in such cases and
would be violative of Art. 14 of the
Constitution.
Thus,
the
Industrial
adjudicator would be achieving the equality
by upholding Art. 14, rather than violating
this constitutional provision.

21. A three-Judge Bench of the
Supreme Court in Haryana Roadways
Versus Rudhan Singh (2005) 5 SCC 591,
considered the question whether back
wages should be awarded to the workman
in
each
and
every
case
of
illegal
retrenchment and it was held that there is
no rule of thumb that in every case where
the Industrial Tribunal gives a finding that
the termination of service was in violation
of Section 25-F of the Act, entire back
wages should be awarded. A host of factors
like the manner and method of selection
and appointment i.e. whether after proper
advertisement of the vacancy or inviting
applications
from
the
employment
exchange, nature of appointment, namely,
whether ad hoc, short term, daily wage,
temporary or permanent in character, any
special qualification required for the job
and the like should be weighed and
balanced in taking a decision regarding
award of back wages. One of the important
factors, which has to be taken into
consideration, is the length of service,
which the workman had rendered with the
employer. If the workman has rendered a
considerable period of service and his
services are wrongfully terminated, he may
be awarded full or partial back wages
keeping in view the fact that at his age and
the qualification possessed by him he may
not be in a position to get another
employment. However, where the total
length of service rendered by a workman is
very small, the award of back wages for the
complete period i.e. from the date of
termination till the date of the award, which
1430 INDIAN LAW REPORTS ALLAHABAD SERIES
our experience shows is often quite large,
would be wholly inappropriate. Another
important factor, which requires to be taken
into
consideration
is
the
nature
of
employment.
A
regular
service
of
permanent character cannot be compared to
short
or
intermittent
daily-
wage
employment though it may be for 240 days
in a calendar year.

22. The Supreme Court in Bhuvnesh
Kumar
Dwivedi
Versus
Hindalco
Industries Ltd. (2014) 11 SCC 85, on the
facts of that case, the Court held that the
workman was subjected to victimization,
therefore, the award passed by the Labour
Court reinstating with backwages was
justified. The judgment and order of the
High Court granting compensation was
reversed.

23. Learned counsel for the workman
Sri Sudhanshu Narain, has placed reliance
upon a decision of the Supreme Court in
Devinder Singh Vs. Municipal Council,
Sanaur (2011) 6 SCC 584, where the
argument that had prevailed with the High
Court to set aside the award of the Labour
Court
directing
reinstatement
of
the
workman, was that the employment of the
workman with the respondent Municipal
Council from 01.08.1994 to 19.09.1996
was engagement on contractual basis and
that it was an appointment made contrary to
the recruitment rules. The High Court had
taken view that it would be violative of
Articles 14 and 15 of the Constitution, and,
that it would not be in public interest to
sustain the award of reinstatement after a
long lapse of time. It was also held that
Section
2(s)
contains
an
exhaustive
definition of the term "workman". The
definition takes within its ambit any person
including an apprentice employed in any
industry to do any manual, unskilled,
skilled, technical, operational, clerical or
supervisory work for hire or reward and it
is immaterial that the terms of employment
are not reduced into writing. The definition
also includes a person, who has been
dismissed, discharged or retrenched in
connection with an industrial dispute or as
a consequence of such dispute or whose
dismissal, discharge or retrenchment has
led to that dispute.

It was further held that the source
of employment, the method of recruitment,
the
terms
and
conditions
of
employment/contract
of
service,
the
quantum of wages/pay and the mode of
payment are not at all relevant for deciding
whether or not a person is a workman
within the meaning of Section 2(s) of the
Act. It is apposite to observe that the
definition of workman also does not make
any distinction between full-time and parttime employee or a person appointed on
contract basis. There is nothing in the plain
language of Section 2(s) from which it can
be inferred that only a person employed on
a regular basis or a person employed for
doing whole-time job is a workman and the
one employed on temporary, part-time or
contract basis on fixed wages or as a casual
employee or for doing duty for fixed hours
is not a workman.

24. The Apex Court in the case of M/s
Hindustan Tin Works Pvt. Ltd. Vs. The
Employees of M/s Hindustan Tin Works
Pvt. Ltd and others: AIR 1979 SC 75, has
held that it is no more open to debate that
in the field of industrial jurisprudence a
declaration
can
be
given
that
the
termination of service is bad and the
workman continues to be in service. The
spectre of common law doctrine that
contract of personal service cannot be
specifically enforced or the doctrine of
5 All. State of U.P. & Ors. Vs. The Labour Court Gorakhpur & Anr.
1431
mitigation of damages does not haunt in
this
branch
of
law.
The
relief
of
reinstatement with continuity of service can
be granted where termination of service is
found to be invalid. It would mean that the
employer has taken away illegally the right
to the work of the workman contrary to the
relevant law or in breach of contract and
simultaneously deprived deprived workman
of his earnings. Thus the employer is found
to be in the wrong as a result of which the
workman is directed to be reinstated, the
employer could not shirk his responsibility
of paying the wages which the workman
has been deprived of by the illegal or
invalid action of the employer. Speaking
realistically, where termination of service is
questioned as invalid or illegal and the
workman has to go through the gamut of
litigation, his capacity to sustain himself
throughout the protracted litigation is itself
such an awesome factor that he may not
survive to see the day when relief is
granted. More so in our system where the
law's
proverbial
delay
has
become
stupefying. If after such a protracted time
and energy consuming litigation during
which period the workman just sustains
himself, ultimately he is to be told that
though he will be reinstated, he will be
denied the back wages which would be due
to him, the workman would be subjected to
a sort of penalty for no fault of his and it is
wholly undeserved. Ordinarily, therefore. a
workman whose service has been illegally
terminated would be entitled to full back
wages except to the extent he was gainfully
employed during the enforced idleness.
That is the normal rule. Any other view
would be a premium on the unwarranted
litigating activity of the employer.

25. Further, the Supreme Court, in the
case of Deepali Gundu Surwase (supra),
elaborately discussed the very idea of
restoring an employee to the position which
he held before dismissal or removal or
termination
of
his
services
and,
in
paragraph 17, the Supreme Court held that
the very idea of restoring an employee to
the position which he held before dismissal
or removal or termination of service
implies that the employee will be put in the
same position in which he would have been
but for the illegal action taken by the
employer. The injury suffered by a person,
who is dismissed or removed or is
otherwise terminated from service cannot
easily be measured in terms of money.
With the passing of an order which has the
effect of severing the employer employee
relationship, the latter's source of income
gets dried up. Not only the concerned
employee, but his entire family suffers
grave adversities. They are deprived of the
source of sustenance. The children are
deprived of nutritious food and all
opportunities
of
education
and
advancement in life. At times, the family
has to borrow from the relatives and other
acquaintance to avoid starvation. These
sufferings continue till the competent
adjudicatory forum decides on the legality
of the action taken by the employer. The
reinstatement of such an employee, which
is preceded by a finding of the competent
judicial/quasi judicial body or Court that
the action taken by the employer is ultra
vires the relevant statutory provisions or
the principles of natural justice, entitles the
employee to claim full back wages.

26. The Supreme Court further held
that if the employer wants to deny back
wages to the employee or contest his
entitlement to get consequential benefits,
then it is for him/her to specifically plead
and prove that during the intervening
period
the
employee
was
gainfully
employed and was getting the same
1432 INDIAN LAW REPORTS ALLAHABAD SERIES
emoluments. Denial of back wages to an
employee, who has suffered due to an
illegal act of the employer would amount to
indirectly
punishing
the
concerned
employee and rewarding the employer by
relieving him of the obligation to pay back
wages including the emoluments.

27. In the same report, with regard to
award of back-wages, it was held that
payment
of
back
wages
having
a
discretionary element involved in it has to
be
dealt
with,
in
the
facts
and
circumstances of each case and no straightjacket formula can be evolved, though,
however, there is statutory sanction to
direct payment of back wages in its
entirety.

28. Reference of another decision of
the Supreme Court in the case of
Bhuvanesh Kumar Dwivedi Vs. M/s
Hindalco Industries Ltd: 2014 (142) FLR
20 is also worth mention in which, while
referring to the judgment in the case of
Deepali Gundu Surwase (supra) the Apex
Court has held that it would amount to
grave injustice to an employee or workman
if he is denied back wages simply because
there is long lapse of time between the
termination of his service and finality given
to the order of reinstatement. The Courts
should bear in mind that in most of these
cases, the employer is in an advantageous
position
vis-à-vis
the
employee
or
workman. He can avail the services of best
legal brain for prolonging the agony of the
sufferer, i.e., the employee or workman,
who can ill afford the luxury of spending
money on a lawyer with certain amount of
fame. Therefore, in such cases it would be
prudent to adopt the course suggested in
Hindustan Tin Works Private Limited v.
Employees of Hindustan Tin Works Private
Limited (supra)....."

29. After discussing on the issue of
reinstatement vis-a-vis back-wages, the
Apex Court in the case of Mackinnon
Mackenzie
&
Company
Ltd.
Vs.
Mackinnon Employees' Union: 2015
(145) FLR 184, has reiterated the ratio laid
down in Deepali Gundu (supra).

30. The aforesaid views have been
reiterated by the Supreme Court very
recently in its judgment dated 23.09.2022
passed in Civil Appeal No.6890 of 2022
(Arising out of Special Leave Petition
(Civil)
No.8393
of
2022)
Jeetubha
Khansangji Jadeja Vs. Kutchh District
Panchayat.

31. In the present case, I find that the
workman successfully pleaded and fully
proved his case by oral and documentary
evidence that oral termination of his
services with effect from 01.01.1991 was
contrary to the provisions of the Act, 1947
and that the workmen junior to him were
retained in service. I also find that the
employer by not producing oral and
documentary
evidence
to
rebut
the
contention of the workman would be
subjected to adverse inference which has
rightly been drawn by the Labour Court,
more particularly in view of Section 114,
Illustration (g) of the Indian Evidence Act,
1872.

32. In the present case, the workman
has not only pleaded but also stated on oath
in his oral testimony and maintained the
stand even in cross examination that he was
not gainfully employed after termination of
his
services.
To
the
contrary,
the
petitioner/employer
completely
failed
either to plead or to prove in any manner
that the workman was gainfully employed
so as to deny him back-wages. Therefore,
the ratio laid down in the aforesaid
5 All. Sarthak Choubey Vs. U.O.I. & Ors.
1433
authorities on this score fully supports the
case of workman for award of back-wages
which the Labour Court has assessed to the
extent of 50% although it could be a case
where the workman was entitled for full
back-wages. However, the Court is not
inclined to enhance the back-wages as the
writ petition has not been filed by the
workman but by the employer.

33.