- (1.) The petitioner, Uttar Pradesh State Road Transport Corporation, has challenged the order dated 01.05.2007 passed by the respondent no. 2, whereby it has directed the reinstatement of the respondent no. 1 with 65% of the back wages. Essential facts are that the respondent no. 1 was appointed as a Conductor in October 1978. He was subjected to disciplinary proceedings. The enquiry officer submitted a charge sheet dated 28.03.2000, wherein he found the respondent no. 1 guilty of charges levied against him. A show cause notice was issued to the respondent no. 1 on 21.10.2000 proposing the punishment of removal from service. On 27.02.2001, respondent no. 1 was removed from service. Respondent no. 1 thereafter raised the industrial dispute, and a reference was made under Section 4K of U.P. Industrial Disputes Act, 1947 to the Labour Court, U.P., Agra. The Labour Court on 09.07.2003 framed a preliminary issue as to whether the domestic enquiry was fair and legal, if not, it's effect. On 08.09.2006 the Labour Court found that the enquiry was not fair and proper, consequently employers were given opportunity to prove the charges. In compliance of the said order petitioner/employer examined Balveer Singh, Station Incharge and no other evidence was adduced by the employer. The Labour Court after examining the facts in detail, recorded a finding that the charge against the respondent no. 1 was not proved. Learned Counsel for the petitioner could not point out any error in the finding recorded by the Labour Court on the said aspect. However, he confined his submission only against the backwages. The Labour Court had awarded 65% of backwages to the respondent no. 1, which according to learned Counsel for the petitioner, is not justified in facts and circumstances of this case. He submits that the petitioner-Corporation is already suffering huge financial losses and the respondent no. 1 during the period of his removal, on the basis of principle of 'no work no pay' is not entitled for any back wages. He further urged that the respondent no. 1 has not adduced any evidence to establish that he was not gainfully employed during the period of his removal.
(2.) I have heard learned Counsel for the respective parties, and perused the record.
(3.) The Supreme Court in its recent decisions, has settled the law with respect to the back wages. In the Hindustan Tin Works (P) Ltd. v. Employees, 1979 AIR(SC) 75 it has also held that when the service of the workman has been illegally terminated, he would be entitled to full back wages except to the extent that he was gainfully employed during the period of his termination. However, the normal Rule of the back wages, has been substantially diluted by the subsequent judgment of the Supreme Court. In a long line of decisions Supreme Court held that the relief of reinstatement with full back wages should not be granted automatically. It would depend on the facts of each case and while granting the back wages, the court/Tribunal will consider several factors. The Supreme Court held that a pragmatic view of the matter should be taken by the court keeping in the view that the employer may not be compelled to pay the workman/employee for the period, in which he did nothing at all. The employee/workman should also establish by the pleading and the evidence that he was not employed elsewhere during long interregnum U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, 2006 1 SCC 479; Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya, 2002 6 SCC 41; UPSRTC v. Mitthu Singh, 2006 7 SCC 180 and U.P. SRTC v. Sharda Prasad Mishra, 2006 4 SCC 733;