- (1.) In this appeal, the appellant Krishi utpadan Mandi Samiti has brought in a challenge the order of reinstatement with back wages as passed by the Industrial Tribunal, lucknow in Adjudication Case No. 13 of 1985 by which an order was passed in favour of respondent 1 workman. The matter was carried in writ petition before the High Court. However, the writ petition came to be dismissed. That is how the appellant Mandi samiti is in appeal before us.
(2.) Learned senior counsel for the appellant contended that the appellant Mandi samiti is not an "industry" governed by the provisions of the U. P. Industrial Disputes Act, 1947. The High Court has held against the appellant on the ground that such a contention was not canvassed before the Industrial tribunal and also following an earlier decision of another Bench, the High Court dismissed the writ petition. Once the appellant did not raise such a contention before the Industrial tribunal, it was not available to be canvassed higher up.
(3.) So far as the payment of back wages is concerned, it was submitted that Respondent 1 was removed from service on February 21, 1976 and he did not raise an dispute till expiry of seven years and only on November 13, 1982 he sought a reference of the dispute to the industrial Tribunal and as such at for this period, he was not entitled to any back wages as delay was caused by him alone and for the delay he cannot make the appellant Mandi samiti to pay the back wages. It was also submitted that during the relevant period respondent 1 was having a commission agency business. Be that as it may, in our view, after the termination of his service on February 21, 1976, Respondent 1 himself for reasons best known to him did not think it fit to raise an industrial dispute at least from February 21, 1976 till November 13, 1982. He is not entitled to any back wages for that period. Only on this short ground, the appeal is accordingly allowed. The order regarding payment of back wages is confirmed subject to the modification that from February 21, 1976 to November 13, 1982 Respondent 1 will not be entitled to any back wages. The rest of the order passed by the industrial Tribunal and as confirmed by the high Court is obviously maintained. The back wages payable to Respondent 1 from november 13, 1982 as directed by us will have to be paid by the appellant to Respondent 1 within three months from today. The appeal is partly allowed. No costs. CAs Nos. 5011-12 of 1999 [arising out of slps (C) Nos. 4677-78 of 1998];