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Wednesday, May 13, 2015

Without having any additional evidence - adverse orders should not be given - The contention urged on behalf of the respondent-firm that the Award of compensation of Rs.2 Lakhs in lieu of the reinstatement and 50% back wages by the High Court is on account of the alleged closure of the respondent establishment is neither supported by any pleading nor any evidence has been adduced before the Labour Court or this Court in that regard by the respondent-establishment. If any additional material is produced before the High Court, the same would be impermissible in law for the reason that the respondent-employer was required to plead with regard to the alleged closure and substantial evidence must be produced in support of the same before the Labour Court at the first instance, and no such plea has been taken before the Labour Court by them. In absence of such a plea, producing additional documents by the respondent-establishment before the High Court is totally impermissible in law for the reason that the High Court’s jurisdiction is to examine the correctness of the Award passed by the Labour Court in exercise of its judicial review power under Article 227 of the Constitution of India which is very limited. In the present case, even if we consider the facts, there is no additional material evidence produced on record before the High Court and it has no jurisdiction to receive the same and render its findings. Apart from the said reason no other reason has been assigned by the High Court in its judgment and order for modifying the Award passed by the Labour Court. Therefore, the legal contention urged in this regard on behalf of the respondent-establishment is misconceived and the same is liable to be rejected.

 NON-REPORTABLE

                         IN THE SUPREME COURT OF INDIA
                          CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 4370 OF 2015
                 (Arising Out of SLP (C) No. 29960 of 2014)

RAJ KUMAR DIXIT                           …APPELLANT

                                       Vs.

M/S.VIJAY KUMAR GAURI SHANKER,
KANPUR NAGAR                             …RESPONDENT



                               J U D G M E N T


V. GOPALA GOWDA, J.

    Leave granted.

 This appeal is directed against  the  impugned  final  judgment  and  order
dated 02.07.2014 passed by the High Court of  Judicature  at  Allahabad,  in
Writ Petition No.19573 of 2010, whereby the High Court quashed the  judgment
and order of the Labour Court, Kanpur, in Adjudication Case  No.66  of  2009
dated 03.07.2009, wherein the Labour Court  directed  the  reinstatement  of
the appellant-workman in his post along with 50% back wages. The High  Court
modified the Award by granting compensation of Rs. 2 lakhs  to  be  paid  to
the appellant-workman in place of the Award passed by the Labour Court.

  The factual matrix and the rival legal contentions urged on behalf of  the
parties are briefly stated hereunder with a view to  find  out  whether  the
impugned judgment and order of the High Court warrants interference by  this
Court in exercise of its appellate jurisdiction  and  for  what  relief  the
appellant is entitled to?

  M/s.Vijay Kumar Gauri Shanker, the respondent-firm  herein,  was  carrying
on the business of transporting caustic  soda  from  M/s.Modi  Alkalies  and
Chemicals Ltd. in Alwar, Rajasthan. For the said  purpose,  the  respondent-
firm was in possession of seven tankers which  were  used  for  transporting
caustic soda from Alwar to the place of supply.

   It is the case of the appellant that he was working as an accounts  clerk
in the respondent-establishment from the year 1994  and  was  looking  after
all the factories of the respondent-establishment. Apart from  that  he  was
in charge of maintenance  of  all  the  seven  tankers  in  the  respondent-
establishment and was also looking after  the  transport  office  and  court
work of the respondent-employer and in return he was being  paid  Rs.1,800/-
per month along with bonus as  was  being  paid  to  other  workmen  of  the
respondent-establishment.

  On 11.6.2001, when the  appellant  who  had  fallen  sick  approached  the
respondent-firm for his outstanding salary, the  respondent-firm  terminated
him from his services.  However, the workmen who were  junior  to  him  were
still  working  in  the  respondent-establishment.   The   appellant-workman
requested for reinstatement of his services in his post but the  respondent-
establishment refused the same which action amounts to retrenchment as  they
have done so without following the mandatory conditions  as  provided  under
Section 6N of the Uttar Pradesh Industrial Disputes Act, 1947  (hereinafter,
“the Act”). Aggrieved by the order of termination, the appellant  raised  an
industrial dispute  before  the  Labour  Court,  Kanpur  narrating  all  the
relevant facts and grounds in support of his claim.

        The Labour Court on the basis of the pleadings of  the  parties  and
in accordance with the claim and written statements  of  the  appellant  and
the respondent and on re-appreciation of the evidence on record  adjudicated
the existing  industrial  dispute  between  the  parties  and  recorded  its
finding on the points of dispute referred to it in favour of  the  appellant
which are extracted in the narration of the facts and based on the  evidence
and circumstances of the case, it held that  the  appellant  was  under  the
employment of the respondent-firm and terminating him from his  services  by
the respondent-firm is in contravention to the provisions of Section 6N  and
other provisions of the Act which is improper and illegal. The Labour  Court
directed the respondent-firm to reinstate him in the said post and  pay  him
50% back wages from the date of termination till the date of passing of  the
Award.

   The correctness of the said  Award  was  challenged  by  the  respondent-
establishment before the High Court by filing writ petition  urging  various
legal grounds. The High Court, based on the findings  and  reasons  recorded
on the points of dispute, held that the  termination  order  passed  against
the appellant-workman is not legal.  The  High  Court  in  exercise  of  its
judicial review power  under  Article  227  of  the  Constitution  of  India
modified the Award passed by the Labour Court, holding that the workman  has
neither stated anything with  regard  to  his  gainful  employment  nor  any
averments were made by him in  this  regard  during  the  aforesaid  period.
Therefore, awarding 50% back wages in favour of the workman  by  the  Labour
Court in its Award is held to be not justified and the High  Court  modified
the Award by awarding Rs.2 lakhs compensation in lieu of reinstatement  with
50% back wages as awarded by the Labour Court.

  The appellant-workman aggrieved by the judgment  and  order  of  the  High
Court has filed this appeal by special leave, urging various  legal  grounds
in support of his claim and prayed this Court  to  set  aside  the  impugned
judgment and order of the High Court  and  restore  the  Award  and  further
direct the respondent to reinstate him in his post and  pay  him  full  back
wages from the date of the Award passed by the Labour Court.

It has been contended by the learned counsel on  behalf  of  the  appellant-
workman that the services  of  the  workman  have  been  terminated  without
complying with the mandatory provisions  of  Section  6N  of  the  Act.  His
juniors  are  still  continuing  in  the  employment  of   the   respondent-
establishment while  his  services  were  arbitrarily  terminated  which  is
contrary to the law laid down by this  Court  in  a  catena  of  cases.  The
learned  counsel  has  further  contended  that  the   respondent-firm   has
erroneously claimed that the appellant-workman is not  an  employee  of  the
firm as he was carrying out the work  of  advocacy  in  the  courts  on  its
behalf whenever the tankers of the respondent-firm met with an accident.  It
has been further contended by him that the maintenance of  the  tankers  was
done by the appellant-workman  in  the  capacity  of  the  employee  of  the
respondent-firm as the said work could be carried out by an employee of  the
respondent-firm only. It has been further contended by the  learned  counsel
on behalf of the appellant-workman that the High  Court  has  erred  in  its
decision in holding that the  reinstatement  of  the  appellant-workman  was
unjustified since the respondent-firm has  closed  down  its  business.  The
High Court has further erred in its decision  in  holding  that  the  Labour
Court was not justified in passing an Award of reinstatement of the  workman
in his post with 50%  back  wages  as  the  Labour  Court  in  another  case
involving the driver working at the  establishment  of  the  respondent-firm
has not ordered his reinstatement which fact of  the  case  could  not  have
applied to the fact situation of the present  case  as  only  the  transport
business of the respondent-firm has closed down  and  its  other  businesses
are still continuing and the appellant-workman was working in  the  capacity
of an accounts clerk of the respondent-firm which does  not  disqualify  him
from reinstatement in his post.

On the other hand, it has been contended by the learned  counsel  on  behalf
of the  respondent-firm  that  the  appellant-workman  has  not  placed  any
evidence on record, either oral or documentary to the effect that he was  an
accounts clerk employed in the respondent-firm  and  as  such  there  is  no
master-servant relationship between him and the respondent-firm. Hence,  the
provisions of Section  6N  of  the  Act  are  not  applicable  to  the  fact
situation of the present case. It has been further  submitted  by  him  that
the management of the respondent-firm gave special power of Attorney to  the
appellant-workman for the purpose of getting the tankers released  from  the
custody of the police or the court and he has worked in that  capacity  only
and nothing more. For the said work the respondent-firm  used  to  give  him
fee for all the necessary expenses that he would incur with  regard  to  the
release of the tankers of  the  respondent-firm  from  the  custody  of  the
police or the court.

It has been further contended by the learned counsel that  since  M/s.  Modi
Alkalies and Chemicals Ltd. has been closed down in the year  2000  and  the
work of transporting caustic soda  from  the  said  factory  was  completely
stopped, therefore, the tankers of the respondent-firm  were  sold  off  and
all  the  licenses  of  the  tankers  were  surrendered  to  the  respective
authority. Hence, the Labour Court has erred in  directing  the  respondent-
firm to reinstate the workman with 50% back wages  and  the  same  has  been
rightly quashed by the High Court and modified the Award  by  awarding  Rs.2
lakhs towards compensation in lieu of reinstatement and back  wages  awarded
by the Labour Court.

We have heard both the learned counsel on behalf  of  the  parties.  On  the
basis of the aforesaid rival  legal  contentions  urged  on  behalf  of  the
parties and on perusal of the findings recorded by the Labour Court  in  its
Award, we have to answer the points of dispute  on  the  basis  of  evidence
produced on record. We are of the view that the  conclusion  arrived  at  by
the High Court is erroneous in law in holding  that  the  appellant  workman
was not in employment under  the  respondent-firm  and  it  has  erroneously
quashed the Award of reinstatement of the appellant-workman  passed  by  the
Labour Court along with 50%  back  wages.  In  support  of  the  above  said
conclusion arrived at by us, we record our reasons hereunder:-

    It is an admitted fact that the respondent-firm used  to  authorise  the
appellant-workman on its behalf to do the work of releasing of  the  tankers
of the respondent-firm from the custody of police or the court whenever  the
tankers met with an accident and a special power of  Attorney  was  executed
by the respondent-firm in this regard  to  the  appellant-workman.  Further,
the respondent-firm also used to give him advance amount  for  the  expenses
that he would incur for carrying out the said  work.  The  appellant-workman
was also given bonus every year and the same has been recorded in the  cash-
book of the respondent-firm. The fact  that  the  respondent-firm  is  still
continuing with its business of trading betel nut and the new plea that  the
transport business of the respondent-firm has been shut down has  also  been
considered by us. The question that arises for  our  consideration  in  this
case, keeping in view the relevant facts, circumstances and the evidence  on
record is that whether the appellant-workman was gainfully employed  in  the
capacity of the clerk in the establishment of the respondent  firm  or  not.
The same is answered by the Labour Court in the positive, on  the  basis  of
the evidence on record in favour of the appellant for the  reason  that  one
would not simply authorize a person who is  not  even  an  employee  of  its
establishment for carrying on with the work of getting the tankers  released
from the custody of the police or the court. Further, the bonus received  by
the workman is only given in the case where he  would  be  employed  in  the
establishment of the respondent-firm. Thus, the contention  of  the  learned
counsel on behalf of the respondent-firm that the appellant-workman  is  not
the  employee  of  the  respondent-firm  and  there  is  no   master-servant
relationship between them, was rightly  rejected  by  the  Labour  Court  by
recording its reasons and holding that the concerned  workman  was  employed
in the establishment of the respondent-firm. Further, the payment of  labour
charges for the repair of the tankers was given to the workman through  bill
or voucher separately,  instead  of  it  being  mentioned  directly  in  the
invoices of the repair of the tankers, which evidence was  produced  by  him
before the Labour Court, the same  is  rightly  accepted  by  it  on  proper
appreciation in exercise of its original jurisdiction.

Further, various records such as court orders or the  report  given  at  the
police station were placed on record before the  Labour  Court  which  would
clearly  show  that  the  appellant-workman  worked  in  the   capacity   of
Munim/Clerk/Manager in the establishment of the  respondent-firm.  Even  the
power of Attorney executed by the respondent-firm clearly  states  that  the
appellant-workman was authorised to carry out whatever action  necessary  in
connection with the release of the tankers  of  the  respondent-firm  either
from the police custody or the court. Thus,  it  is  clear  from  the  above
evidence produced on record by the appellant before the  Labour  Court  that
he has worked in the capacity of not only a mechanic  in  the  establishment
of the respondent-firm but also as  an  accounts  clerk.  The  witnesses  on
behalf of the respondent-firm had further deposed before  the  Labour  Court
that the appellant-workman used to carry out the repair work of the  tankers
of the respondent-establishment on a regular basis and  the  said  work  was
done by the appellant-workman only.  Therefore, in the light  of  the  facts
and circumstances of the case and the evidence  admitted  on  record  before
the Labour Court and produced before this Court, it is amply clear that  the
appellant-workman was employed in the establishment of  the  respondent-firm
and he used to  carry  out  the  business  of  the  respondent-firm  in  the
capacity of an employee/clerk  and  not  just  a  third  party  agent  or  a
mechanic. Therefore, the High Court has gravely erred in quashing the  Award
of reinstatement of  the  appellant-workman  with  50%  back  wages  in  the
establishment of the respondent-firm by  awarding  a  compensation  of  Rs.2
Lakhs in lieu of the same which modification of  the  Award  of  the  Labour
Court is not  only  erroneous  but  also  suffers  from  error  in  law  and
therefore, the same is liable to be quashed by this Court.

Awarding compensation to an amount of Rs. 2 lakhs  to  the  workman  by  the
High Court in lieu of reinstatement of the appellant-workman along with  50%
back wages is once again contrary to the well settled principles of  law  as
has been laid down by this Court in a catena  of  cases,  particularly,  the
case of  Punjab  Land  Development  and  Reclamation  Corporation.  Ltd.  v.
Presiding Officer, Labour Court,[1]  wherein  the  Constitution  Bench  held
that the order of termination simpliciter has to be held bad in law for non-
compliance of the mandatory requirements provided under the Act and  further
held that the order of termination will be rendered  void-ab-initio  in  law
and therefore, the workman is entitled for all  benefits  for  which  he  is
legally entitled to in law.

The High Court has exceeded in its jurisdiction in setting aside  the  Award
passed by the Labour Court  in  awarding  reinstatement  of  the  appellant-
workman in his post along with 50% back wages which is erroneous in  law  as
the High Court has not noticed the fact that the appropriate Government  has
referred the dispute to the Labour Court for its adjudication on the  points
of dispute referred to it. Since, there was non-compliance of the  mandatory
requirements as provided under the provisions of the Act by the  respondent-
firm at the time of passing an order of termination against  the  appellant-
workman, therefore, the same has been held to be bad in law and as  such  it
should have awarded full  back  wages  to  the  workman  from  the  date  of
termination till the date of passing the Award unless  the  employer  proves
that the workman was gainfully employed during the  aforesaid  period  which
fact is neither pleaded nor proved before the Labour Court.

Therefore, the impugned judgment of the High Court is  bad  in  law  as  the
normal rule to be  followed  by  the  respondent-firm  with  regard  to  the
termination of the services of the workman has not been done in the  present
case and further, the High Court has once again exceeded in its  supervisory
jurisdiction in exercise of its judicial review power under Article  227  of
the Constitution of India by setting aside the Award of  reinstatement  with
50% back wages passed by the Labour  Court  and  has  instead  awarded  Rs.2
lakhs as compensation to the appellant-workman which is contrary to the  law
laid down by this Court. The High  Court  cannot  exercise  its  supervisory
jurisdiction and act as either original court  or  appellate  court  to  set
aside the finding of fact recorded on the points of dispute referred to  the
Labour Court on proper appreciation of pleadings and evidence on  record  in
favour of the workman as has been done in the instant  case.  The  Award  of
compensation of Rs.2 Lakhs awarded in place of reinstatement with  50%  back
wages as awarded by the Labour Court has been modified  by  the  High  Court
without assigning any cogent and valid reason which is  not  only  erroneous
in law but suffers from error in law as well, as the  same  is  contrary  to
the catena of decisions of this Court. On this ground itself,  the  impugned
judgment of the High Court is liable to be set aside and we  pass  an  order
to restore the Award passed by the Labour Court. Reliance  has  been  placed
in  the  case  of  Syed  Yakoob  v.  K.S.  Radhakrishan[2]  which  has  been
elaborately considered by this Court in  the  case  of  Harjinder  Singh  v.
Punjab State Warehousing Corporation[3], the relevant para  of  which  reads
thus:

“12. In Syed Yakoob case, this Court delineated the scope  of  the  writ  of
certiorari in the following words:

“7. The question about the limits of the  jurisdiction  of  High  Courts  in
issuing  a  writ  of  certiorari  under  Article  226  has  been  frequently
considered by this Court and the true legal position in that  behalf  is  no
[pic]longer in doubt. A writ of certiorari  can  be  issued  for  correcting
errors of jurisdiction committed by inferior courts or tribunals: these  are
cases where orders are  passed  by  inferior  courts  or  tribunals  without
jurisdiction, or is in excess of it, or as a result of failure  to  exercise
jurisdiction.  A  writ  can  similarly  be  issued  where  in  exercise   of
jurisdiction conferred on it,  the  court  or  tribunal  acts  illegally  or
improperly, as for  instance,  it  decides  a  question  without  giving  an
opportunity to be heard to the party affected by the  order,  or  where  the
procedure adopted in dealing with the dispute is opposed  to  principles  of
natural justice. There is, however, no doubt that the jurisdiction to  issue
a writ of certiorari is a supervisory jurisdiction and the court  exercising
it  is  not  entitled  to  act  as  an  appellate  court.  This   limitation
necessarily means that findings of fact reached by  the  inferior  court  or
tribunal as result of the appreciation of evidence  cannot  be  reopened  or
questioned in writ proceedings. An error of law which  is  apparent  on  the
face of the record can be corrected by a writ, but not  an  error  of  fact,
however grave it may appear to be. In regard to a finding of  fact  recorded
by the tribunal, a writ of certiorari can be issued if it is shown  that  in
recording the said finding, the tribunal had erroneously  refused  to  admit
admissible and material evidence, or had erroneously  admitted  inadmissible
evidence which has influenced the impugned finding. Similarly, if a  finding
of fact is based on no evidence, that would be regarded as an error  of  law
which can be corrected by  a  writ  of  certiorari.  In  dealing  with  this
category of cases, however, we must always bear in mind that  a  finding  of
fact recorded by the tribunal cannot be  challenged  in  proceedings  for  a
writ of certiorari on the ground that the  relevant  and  material  evidence
adduced before the tribunal was insufficient or inadequate  to  sustain  the
impugned finding. The adequacy or sufficiency of evidence  led  on  a  point
and the inference of fact to be drawn from the said finding are  within  the
exclusive jurisdiction of the  tribunal,  and  the  said  points  cannot  be
agitated  before  a  writ  court.  It  is  within  these  limits  that   the
jurisdiction conferred on the High Courts under Article 226 to issue a  writ
of certiorari can be legitimately exercised  (vide  Hari  Vishnu  Kamath  v.
Ahmad Ishaque, Nagendra Nath Bora v. Commr. of Hills Division and  Kaushalya
Devi v. Bachittar Singh).

8. It is, of course, not easy to  define  or  adequately  describe  what  an
error of law apparent  on  the  face  of  the  record  means.  What  can  be
corrected by a writ has to be an error of law; but it must be such an  error
of law as can be regarded as one which  is  apparent  on  the  face  of  the
record. Where it is manifest or clear that the conclusion  of  law  recorded
by an inferior court or tribunal is based on  an  obvious  misinterpretation
of the relevant statutory provision, or sometimes in  ignorance  of  it,  or
may be, even in disregard of it, or is expressly founded  on  reasons  which
[pic]are wrong in law, the said conclusion can be corrected  by  a  writ  of
certiorari. In all  these  cases,  the  impugned  conclusion  should  be  so
plainly  inconsistent  with  the  relevant  statutory  provision   that   no
difficulty is experienced by the High Court in holding that the  said  error
of law is apparent on the face of the record. It may also be  that  in  some
cases, the impugned error of law may not be obvious or patent  on  the  face
of the record as such and the court may need an  argument  to  discover  the
said error; but there can be no doubt that what can be corrected by  a  writ
of certiorari is an error of law and the said error must, on the  whole,  be
of such a character as would satisfy the test that it is  an  error  of  law
apparent on the face of the record. If a statutory provision  is  reasonably
capable of two constructions and one construction has been  adopted  by  the
inferior court or tribunal, its conclusion may not necessarily or always  be
open to correction by a writ of certiorari. In our opinion,  it  is  neither
possible  nor  desirable  to  attempt  either  to  define  or  to   describe
adequately all cases of errors  which  can  be  appropriately  described  as
errors of law apparent on  the  face  of  the  record.  Whether  or  not  an
impugned error is an error of law and an error of law which is  apparent  on
the face of the record, must always depend upon the facts and  circumstances
of each case and upon the nature and scope of the legal provision  which  is
alleged to have been misconstrued or contravened.””



The findings and reasons recorded by the High  Court  in  its  judgment  and
setting aside the award of the Labour Court is contrary to the  decision  of
this Court. Further, in the case of Deepali Gundu Surwase v.  Kranti  Junior
Adhyapak Mahavidyalaya[4], this Court, after adverting to  the  three  Judge
Bench judgment of this Court in the case of Surendra Kumar Verma v.  Central
Govt. Industrial Tribunal-cum-Labour Court[5], has categorically  held  that
the termination order passed by  the  employer  is  the  subject  matter  of
dispute either before the Tribunal or before the Labour Court and it is  for
the employer to show that the workman was gainfully employed from  the  date
of the termination till the date of passing of the Award so as to  deny  him
back wages and this Court further held that if the termination order is  set
aside, the award of reinstatement is the normal rule  and  awarding  of  the
back wages must follow, the same need not  be  awarded  if  the  workman  is
either gainfully employed during  the  period  of  adjudication  or  if  the
employer is facing any financial crunch. The said decision of this Court  in
the Deepali Gundu Surwase’s case reads thus:

“24. Another three-Judge Bench considered the same issue in  Surendra  Kumar
Verma v. Central Govt. Industrial Tribunal-cum-Labour Court and observed:

“6. … Plain common sense dictates that the removal of an  order  terminating
the services of workmen must ordinarily lead to  the  reinstatement  of  the
services of the workmen. It is as if the order has never  been,  and  so  it
must ordinarily lead to  back  wages  too.  But  there  may  be  exceptional
circumstances which make it impossible or wholly inequitable  vis-à-vis  the
employer and workmen to direct  reinstatement  with  full  back  wages.  For
instance, the industry  might  have  closed  down  or  might  be  in  severe
financial doldrums; the workmen concerned might [pic]have secured better  or
other employment elsewhere and  so  on.  In  such  situations,  there  is  a
vestige of discretion left in the court to  make  appropriate  consequential
orders. The court may deny the relief of reinstatement  where  reinstatement
is impossible because the industry has closed down. The court may  deny  the
relief of award of full back wages where  that  would  place  an  impossible
burden on the employer. In such and other exceptional cases  the  court  may
mould the  relief,  but,  ordinarily  the  relief  to  be  awarded  must  be
reinstatement with full back wages. That relief must  be  awarded  where  no
special impediment in the way of  awarding  the  relief  is  clearly  shown.
True, occasional hardship may be caused to an employer but we must  remember
that, more often than not, comparatively far greater hardship is certain  to
be caused to the workmen if the relief is denied than  to  the  employer  if
the relief is granted.”



The contention urged on behalf of the  respondent-firm  that  the  Award  of
compensation of Rs.2 Lakhs in lieu of the reinstatement and 50%  back  wages
by the High Court is on account of the alleged  closure  of  the  respondent
establishment is neither supported by any  pleading  nor  any  evidence  has
been adduced before the Labour Court or this Court in  that  regard  by  the
respondent-establishment. If any additional material is produced before  the
High Court, the same would be impermissible in law for the reason  that  the
respondent-employer was  required  to  plead  with  regard  to  the  alleged
closure and substantial evidence must be produced in  support  of  the  same
before the Labour Court at the first instance, and no  such  plea  has  been
taken before the Labour Court by them. In absence of such a plea,  producing
additional documents by the respondent-establishment before the  High  Court
is totally impermissible in  law  for  the  reason  that  the  High  Court’s
jurisdiction is to examine the  correctness  of  the  Award  passed  by  the
Labour Court in exercise of its judicial review power under Article  227  of
the Constitution of India which is very limited. In the present  case,  even
if we consider the facts, there is no additional material evidence  produced
on record before the High Court and it has no jurisdiction  to  receive  the
same and render its findings. Apart from the said  reason  no  other  reason
has been assigned by the High Court in its judgment and order for  modifying
the Award passed by the Labour Court. Therefore, the legal contention  urged
in this regard on behalf of  the  respondent-establishment  is  misconceived
and the same is liable to be rejected.

The High Court has erred in its decision,  both  on  facts  and  in  law  in
setting aside the  order  of  reinstatement  with  50%  back  wages  to  the
workman. It is the workman  who  was  aggrieved  with  regard  to  the  non-
awarding of 50% back wages and this  aspect  of  the  matter  has  not  been
considered by the High Court while interfering with the Award of the  Labour
Court and awarding compensation  in  lieu  of  the  reinstatement  and  back
wages. Therefore, the appeal must succeed in this case. The  High  Court  in
awarding compensation to the workman has erroneously held that the order  of
reinstatement passed in favour of the appellant-workman is illegal and  void
ab initio in law without assigning valid and cogent reasons  and  therefore,
the same is liable to be set aside  as  there  has  been  a  miscarriage  of
justice. The grounds urged by the appellant in this case  are  well  founded
and we accordingly pass the following order:



The Appeal is allowed. The impugned judgment and order passed  by  the  High
Court of Judicature at Allahabad in Writ Petition No. 19573  of  2010  dated
02.07.2014 is hereby set aside and the Award passed by the Labour  Court  in
awarding reinstatement with 50% back wages  from  the  date  of  termination
till the date of passing the Award by the Labour Court is restored.







We further direct the respondent-firm to pay full back wages to the  workman
from the date of passing of the Award by the Labour Court till the  date  of
his reinstatement in service. The  order  shall  be  complied  with  by  the
respondent-firm within six weeks from the date of receipt of  copy  of  this
order.




              ……………………………………………………………………………………J.
              [FAKKIR MOHAMED IBRAHIM KALIFULLA]




                            ……………………………………………………………………………………J.

              [V. GOPALA GOWDA]


New Delhi,
  May 12, 2015
-----------------------
[1]


       (1990) 3 SCC  682
[2]    (1964)  AIR SC 477
[3]    (2010) 3  SCC 192
[4]    (2013) 10 SCC 324
[5]    (1980) 4 SCC 443

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