V.K. Shukla, J. - (1.) Review application has been filed by M/S Aaj Prakashan Ltd. Bans Mandi Kanpur, for review of the judgment and order dated 05.07.2004 passed in Civil Misc. Writ Petition No.15966 of 1994, wherein Award passed by Industrial Court has been affirmed.
(2.) Brief background of the case is that in the award dated 17.06.1992 as published on 01.08.1992 direction was given by Industrial Tribunal to the effect that workman was entitled to get reinstatement with benefits of back wages as special correspondent with effect from 09.11.1987. Writ petition filed against the said award was dismissed in following terms: "In order to appreciate respective submission which has been raised on behalf of the parties, relevant extract of the award which has been quoted above, is first to be seen and ti has to be found out as to whether the said award contains reason or not. In the case of M/S Elgin Mills.Co. Ltd. (Mill No.1) Kanpur v. The Labour Court (I), Kanpur and others, 1981 (42) F.L.R. 111 , Division Bench of this Court interfered with the award on the ground that there was nothing in the award to indicate as to whey Labour Court chose to accept the case set up by the workman and disbelieved the version of the petitioner. Here in the present case petitioner had chosen not to participate in the proceeding, as such the said case does not come to the rescue of petitioner, once un-rebutted facts were there. As to whether in case in hand there was any evidence or not has also be seen. Relevant extract of the award clearly shows that here is positive statement made by the respondent workman in respect to the fact of his appointment, his dismissal and his continuity of unemployment and this finding has been recorded by the Industrial Tribunal that statement given by the workman has not be controverted by the employer who ware not appearing and thus, finding has been recorded by the Industrial Tribunal while passing award, inasmuch as the last paragraphs open with the sentence. Thus, in view of above, I am of the opinion that petitioner has established his case. Reasons are there may be not in so many words. Statement given by workman has been accepted being uncontroverted as gospel truth and same persuaded the Industrial Tribunal to accept the version of respondent-workman and pass award. Reasoning is there and thus, both the judgments cited are clearly distinguishable. Having given up their right by non-participating, petitioner cannot make any complaint in this respect. The award given by the Industrial Tribunal does not contain reason, in view of the factual position emerging that statement has not been controverted by the employer, and there being documentary evidence Industrial Tribunal has proceeded to pass award as such it cannot be faulted on the said score and the same is upheld on this score. Next question which has been raised by Sri. J.J. Munir, Advocate is in respect to grant of back wages. Sri J.J. Munir has placed reliance on the judgment of Hon'ble Apex Court in the case of M.P. State Electricity Board v. Jarina Bee (Smt.), 2003 (98) FLR 595 (SC) , for the proposition that award of full back wages is not the natural consequence and it is incumbent on the Labour court to decide quantum of wages in the facts of the case and as no exercise has been done in the present case, as such award in question to the said extent be quashed and the matter be remitted back to be decided afresh by the industrial Tribunal (III) Kanpur. Countering this submission Ms. Bursa Mariyam has contended that if termination is found to be illegal, normal relief is reinstatement with continuity in service and full back wages and further it has been contended that even judgment which has been relied upon by the petitioner does nor recognise this right and as such no interference be made by this Court with the award directing reinstatement with continuity of service and full back wages. In this connection she placed reliance on the following judgment namely; Postal Seal Industrial Co-operative Society v. Labour Court, Lucknow reported in 1971 (22) FLR 38 , Hindustan Tin works v. Its Employees reported in 1978 (37) FLR 240 (SC) , P.G.I. of M.E. and Research, Chandigarh v. Raj Kumar reported in 2001 (88) FLR 688 , Hindustan Motors v. Tapan Kumar Bhattacharya and another reported in 2002 (94) FLR 741 (SC) and Kishor S. Kasre v. S. Kumar Group of Companies and another reported in 2003 (96) FLR 928 . In this respect relevant extract of the award has been perused and therein after claim of respondent-workman has been accepted, directives have been issued for reinstatement with benefit of back wages from the date of reference. In the case of M.P. State Electricity Board v. Jarina Bee (Smt.), 2003 (98) FLR 688 , it has been held that High Court committed error in holding that and of full back wages was the natural consequence. In the said judgment two other judgments of the Hon'ble Apex court has been referred to i.e. P.G.I. of M.E. and Research, Chandigarh v. Raj Kumar reported in 2001 (88) FLR 688 , and Hindustan Motors v. T. Kumar Bhattacharya, 2002 (94) FLR 741 (SC) , wherein Hon'ble Apex Court has set aside the judgment of High Court when high Court had directed full payment of back wages by mentioning that Labour Court being final court of fact, High Court is not empowered to interfere with the award, unless and until finding of perversity being erroneous or not in accordance with law is recorded with reasons in order to assail the finding of the Labour Court or the Tribunal. In the aforementioned judgment it has been 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 straight jacket formula can be evolved. Further it has been held that there is statutory sanction to direct payment of back-wages in its entirety. Legal position, thus, which is emerging is that Labour Court is final Court of fact and award can be interfered only in the event of there being perversity in the award or being erroneous or not in accordance with law. Further payment of back wags has discretionary element and same has to be deal with in the facts and circumstances of each case. In the Division Bench judgment of this Court in the case of Postal Seals Industrial Co-operative Society Ltd., Aligar v. Labour Court, II Lucknow and others reported in 1971 (22) FLR 38 , therein it has been held that normal rule is to award full back wages and it is for the employer to plead and prove that workman concerned has made some earning during period concerned or have wilfully refused to seek or accept alternative job. Further it has been held that there is burden on the employer to neutralise the normal rule of reinstatement with back wages. Burden has been placed on the employer to establish before Labour Court for deviation from aforementioned normal rule. Tested on these principles, here in the present case it is found reference has been accepted and workman has been found entitled for reinstatement with benefit of back wages from the date of reference. High Court has got authority to interfere with the award in the even of there being perversity in the award of being erroneous or the same being not in accordance with law. No such infirmity has been pointed out and question of payment of back wages has to be deal with in the facts and circumstances of each case. Here in the present case, at no point of time, any evidence was led before the Industrial Tribunal, which could have promoted the Industrial Tribunal to have deviated from exercising its discretion in favour of the petitioner. Petitioners themselves are responsible for such a situation. Conscious decision has been taken by Industrial Tribunal, as back wages have been awarded from the date of reference i.e. 09.11.1987 and not from the date of termination i.e. 01.05.1986. Net effect of the same is that while passing the award Labour 'Court has committed no error, as such no interference is required by this 'Court. Consequently present writ petition lacks merit and the same is dismissed." Now, Review application has been filed on following grounds: "A. Because the Hon'ble Court has recorded incorrect findings which are apparent on the face of the record. B. Because, the Hon'ble Court while awarding back wages to the respondent No. 2 has failed to appreciate the fact that the respondent No. 2 was in employment during the pendency of the proceedings before the Industrial Tribunal as well as before this Hon'ble Court. C. Because the Hon'ble court has recorded an incorrect finding that the back wages was rightly awarded by the Industrial Tribunal to the respondent No. 2. D. Because he Hon'ble Court has not touched the issue with regard to the jurisdiction of the U.P. State Industrial Tribunal whereas it was specifically pleaded that the respondent No. 2 was temporarily employed a a reporter and his services were governed by the Working Journalists and Other Newspaper Employees (Conditions of Service) and Misc. Provisions Act, 1955; hence the reference could have been made only by the Central Government as contemplated under Section 3 of the aforesaid Act. E. Because while dismissing the writ petition the Hon'ble Court has committed manifest error of law apparent on the face of record."
(3.) Sri Anil Kumar Bajpai, learned Counsel for the applicant, contended with vehemence that in the present case, there is error apparent on the fact of record, as such in all eventuality, the judgment and order in question is liable to be reviewed, and further for the period for which back wages have been allowed, during the said period respondent workman was gainfully employed, and the same amount cannot be legally allowed.;