ORDER V. K. Mehrotra, J. - These are two petitions under Art 226 of the Constitution challenging the award dated Jan. 25, 1977 of Industrial Tribunal (I) U. P. at Allahabad in adjudication Case No. 65 of 1975. The petitioners in these petitions were workmen concerned with the dispute involved in that adjudication case. 2. The petitioners were employees of M/s. Mirzapur Electric Supply Co. Ltd. which is respondent No. 3 in the petition. Their services were terminated by the third respondent by retrenchment. At the instance of the workmen through Bijlighar Mazdoor Sabha, Mirzapur, a reference was made by the State Government of the dispute for adjudication in exercise' of powers under S. 4 (K) of the U. P. Industrial Disputes Act. The matter of dispute was whether the retrenchment of the petitioners with effect from November 15, 1974 by the third respondent was legal and proper. If not, to what relief were the workmen entitled. This dispute was registered as adjudication Case No. 65 of 1975 before the Industrial Tribunal. 3. Subsequent to the reference, which was made through notification dated January 8, 1975, the U. P. State Electricity Board, which is the second respondent in the petition, purchased the undertaking after its license was revoked under S. 4 of the Indian Electricity Act. During the pendency of the adjudication case, the Board was impleaded as a party and filed its written statement before the Tribunal. 4. The Tribunal, by its award dated Jan. 25, 1977 decided that retrenchment of workmen other than Kripa Shanker Dwivedi (Petitioner in Writ Petition No. 3351 of 1977), S. K. Pandey, Ganga Saran, Devi Prasad and Dashrath (Petitioners Nos. 6, 13, 17 and 18 in Writ Petition No. 3809 of 1977) was valid and fully justified. In respect of those petitioners it felt that no relief could be granted. So far as the aforesaid five workmen are concerned, the Tribunal came to the conclusion that their retrenchment was invalid. It held thus : "For the reasons recorded in the preceding paras the Tribunal's award in the subject matter of dispute is that the retrenchment of following five workmen has not been made in accordance with the provisions of the Act and as such their retrenchment with effect from 15-11-1974 is held to be invalid.... (1) S. K. Pandey (2) K. S. Dubey (3) Devi Prasad (4) Dashrath (5) Ganga Saran........ (1) S. K. Pandey (2) K. S. Dubey (3) Devi Prasad (4) Dashrath (5) Ganga Saran........ Since Mirzapur Electric Supply Co. was closed down and its management was taken over by the U. P. State Electricity Board with effect from 1-9-75, retrenchment of these five workmen shall take effect with effect from 31-8-1975. For the intervening period, i.e. 15-11-1974 to 31-8-1975 these workmen are entitled to get their wages, but nothing has come in evidence on record to show that they had remained unemployed during this period. It is presumed that they would have managed to get alternative employment as some of them had even accepted retrenchment compensation admissible to them. In view of this position the Tribunal feels that the ends of justice would be met if they are paid 50% of their wages for the aforesaid intervening period of 9 months, besides one month's pay in lieu of notice and retrenchment compensation admissible to them according to Rules, if notice pay has not already been paid. As the management's decision to declare them surplus has been held to be justified, the subsequent employer, i.e. Electricity Board cannot be burdened with the liability of surplus hands and as such, in respect of these five workmen, retrenchment shall take effect from afternoon of 31-8-1975....." 5. The first submission made on behalf of the petitioners is that the Tribunal was in error in awarding only 50% of wages to the workmen after its conclusion that the retrenchment was illegal. The submission has substance. In Hindustan Tin Works Pvt. Ltd. v. Employees of M/s. Hindustan Tin Works Pvt. Ltd., ( AIR 1979 SC 75 ) It was ruled by the Supreme Court that where the termination of the services of a workman is found to be invalid, the ordinary rule is that the workman would be entitled to full back wages except to the extent that he was gainfully employed during the enforced idleness and the burden is upon the employer to establish circumstances which would permit departure from the normal rule. The Tribunal, as is clear from the portion of its award extracted above, erroneously took the view that it was to be presumed that the workmen would have managed to get alternative employment or that there had to be evidence that they had remained unemployed in the intervening period. The Tribunal, as is clear from the portion of its award extracted above, erroneously took the view that it was to be presumed that the workmen would have managed to get alternative employment or that there had to be evidence that they had remained unemployed in the intervening period. The burden of pleading that the workmen were gainfully employed was upon the employer. In the absence of any such plea or evidence on this behalf, the workmen could not be deprived of half of their wages as has been done by the Tribunal. 6. The next submission of Sri K. P. Agarwal, for the petitioner workmen, is that the Tribunal was not justified in refusing relief of reinstatement upon the consideration that the third respondent had been taken over by the U. P. State Electricity Board, which, according to him, was an irrelevant consideration for the purpose. He has further urged that the effect of the declaration by the Tribunal that the retrenchment of five of the petitioners was illegal, was that these workmen will be deemed to be continuing in service and would be entitled to the benefit that accrued to them on account of their continued employment. 7. It has been argued that the license of the undertaking of the third respondent having been revoked under S. 6 (2) of the Indian Electricity Act as amended by the Indian Electricity (U. P. Second Amendment) Ordinance, 1975, the consequences enumerated in sub-sec. (3) of that Section, were to follow and in terms of clause (g) (i) of sub-sec. (3) of S. 6, the petitioners shall have to be treated to have become employees of the Board on the same terms and conditions etc. as would have been admissible to them if the undertaking had not been transferred to the Board and would be deemed to continue to do so unless their employment under the Board was terminated or their remuneration and other terms and conditions of employment were duly altered by the Board. 8. The relevant portion of S. 6, as added by the Ordinance aforesaid with effect from November 27, 1975 was as under "6. 8. The relevant portion of S. 6, as added by the Ordinance aforesaid with effect from November 27, 1975 was as under "6. (I) In this section `appointed day' means in relation to licensees other than local authorities, December 1, 1975 and in relation to local authorities being licensees, such date as may be specified by the State Government by notification in that behalf, and different dates may be specified for different such undertakings. (2) Notwithstanding anything contained in sections 4, 4A, 5 and 6, the licence of every undertaking unless revoked before the commencement of the Indian Electricity (Utter Pradesh Second Amendment) Ordinance, 1975, shall stand revoked with effect from the appointed day. (3) Every undertaking the licence in respect of which stands revoked shall by virtue of this section stand and be deemed to have stood transferred to and vest and be deemed to have vested in the State Electricity Board, hereinafter in this section called `the Board', free from any debt, mortgage or similar obligation of the licensee attaching to the undertaking... (g) the following provisions shall govern the working in the undertaking immediately before the appointed day : (i) Every person who has been immediately before the appointed day in the employment of the licensee shall become on and from the appointed day an employee of the Board on the same terms and conditions and with the same rights as to pension, gratuity and other matters as would have been admissible to him if the undertaking had not been transferred to and vested in the Board and continue to do so unless and until his employment under the Board is terminated or until his remuneration or other terms and conditions of employment are duly altered by the Board." 9. A perusal of the aforesaid provisions shows that sub-sec. (3) of S. 6 would come into operation only where the revocation of the licence of an undertaking took effect from the appointed day i.e. Dec. 1, 1975 under sub-sec. (2) and not where the licence had been revoked before the commencement of the Ordinance. 10. A perusal of the award of the Tribunal shows that the licence of the third respondent stood revoked with effect from Sept. 1, 1975, i.e. before the commencement of the Ordinance. 1, 1975 under sub-sec. (2) and not where the licence had been revoked before the commencement of the Ordinance. 10. A perusal of the award of the Tribunal shows that the licence of the third respondent stood revoked with effect from Sept. 1, 1975, i.e. before the commencement of the Ordinance. In this view of the matter it is not possible to accept the submission that five of the petitioners named above would be entitled to the benefits envisaged, inter alia, by clause (g) (i) of sub-sec. (3) of S. 6. 11. It was then contended by Sri Agarwal that even assuming that these five petitioners were not entitled to continuity of service with the Board on account of the provisions of the Ordinance, they were entitled, at least, to be considered for continuance or otherwise of their services with the Board even in terms of the agreement under which the Board took over the undertaking of the third respondent. A copy of the terms settled between the Board and the third respondent has been appended as Annexure CA2 to the supplementary counter-affidavit sworn by Kalyan Das Gupta in writ petition No. 3351 of 1977 and the relevant clause of that agreement, namely, clause 6 quoted in paragraph 35 of the counter-affidavit sworn by Sri B. S. Verma, Assistant Engineer, Electricity Distribution Division I, Mirzapur in writ petition No. 3809 of 1977, runs thus:- "As regards taking over of the licensee's staff it was made clear that the Board reserves right of taking over any or all the licensee's employees but will not take over such staff who may have either resigned from the services of the company or whose services may have been terminated by the company or against whom disciplinary proceedings are pending. It was agreed that some of the staff is required by the company temporarily for about a period of six months to complete the company's pending work, will be allowed to function under the company's service and the Board may take over them thereafter." The precise submission of Sri Agarwal is that the consequence of the award of the Tribunal was that these five workmen continued to be in the service of the third respondent and had been illegally prevented from performing their duties and wrongfully deprived of their emoluments. In the eye of law, therefore, they were amongst the staff of the licensee (the third respondent) on the day of taking over, i.e. September 1, 1975. They were, therefore, included in the category of the licensee's staff for purposes of clause 6 and even in respect of them, the Board had to make up its mind whether it would take them over in its service or not since factually they were not borne on the list of the employees on that date, the Board had no occasion to consider their cases for continuance or otherwise of their services in terms of Clause 6. 12. On behalf of the Board it has been argued that the aforesaid clause 6 left absolute discretion with the Board to take over any or all the employees of the licensee except those who had resigned or whose services had been terminated by the Company or against whom disciplinary proceedings were pending. Since the Board did not take over those employees whose services had been retrenched, no obligation was cast upon the Board even in considering the cases of these five employees. It has also been argued that the ambit of the reference made by the State Government to the Tribunal was confined to a determination as to whether the retrenchment of the employees. On 15th November, 1975 was valid or not. It was obvious that the relief to which the workmen concerned could be entitled was only against the employer who had retrenched them, i.e. the third respondent. 13. The Board admittedly was a party to the proceedings before the Tribunal though it was made a party only after it had taken over the undertaking of the third respondent after revocation of the license of that respondent. The matter of dispute which was before the Tribunal for adjudication was in the following terms :- " vkSn~;ksfxd fookn ( nks ) dk fooj.k D;k lsok;kstdksa n~okjk ifjf'k"V esa mfYyf[kr deZpkfj;ksa dh fnukad 15&11&74 ls ?kksf"kr NaVuh vFkok oS/kkfud ,oa@vkSfpR;iw.kZ dgh tk ldrh gS\ ;fn ugha] rks lacaf/kr deZpkjh D;k ykHk {kfriwfrZ ikus ds vf/kdkjh gS\ rFkk vU; fdl fooj.k lfgr\ " 14. From the order of reference it is clear that the matter of relief to which the workmen were entitled in case their retrenchment was found to be invalid, was also up for consideration before the Tribunal. From the order of reference it is clear that the matter of relief to which the workmen were entitled in case their retrenchment was found to be invalid, was also up for consideration before the Tribunal. The fact that the undertaking of the third respondent had been taken over by the Board with effect from Sept. 1, 1975 was before the Tribunal almost as an admitted one between the parties. The Tribunal, as is clear from the portion of the award quoted earlier, refused relief of reinstatement to the five workmen on its view that the relief could not be granted as against the third respondent which was no longer carrying on the undertaking from after Sept. 1, 1975 in these circumstances it is difficult to accept the submission that the question of grant of relief as against the Board was outside the scope of the reference made to the Tribunal. The terms under which the undertaking of the third respondent was taken over by the Board are now before the Court in these proceedings. On proper interpretation, clause 6 of these terms would mean that the Board had reserved unto itself the right of taking over any or all the licensee's employees. But it made it clear that it would not take over such staff which may have either resigned from the service of the company or whose services may have been terminated by the company or against whom disciplinary proceedings were pending. It has been stated by the counsel for the parties in this Court that a substantial, number of the licence's staff was actually taken over by the Board in pursuance of the aforesaid clause. It is clear that the aforesaid five petitioners were not thought to be amongst the staff of the licence on September 1, 1975 for they had been retrenched by the third respondent on November 15, 1974. On that basis no occasion arose for the Board to consider their cases with a view to determine whether it would like to continue them in its service or not. The effect of the Tribunal's decision in regard to these five petitioners clearly is that these five petitioners continued to be in service on September 1, 1975 as well. On that basis no occasion arose for the Board to consider their cases with a view to determine whether it would like to continue them in its service or not. The effect of the Tribunal's decision in regard to these five petitioners clearly is that these five petitioners continued to be in service on September 1, 1975 as well. As observed by the Supreme Court in the case of Hindustan Tin Works Pvt. Ltd. (1978 Lab I C 1667) (supra) in paragraph 9 : "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 relief of reinstatement with continuity of service can be granted where termination is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings.." 15. The submission on behalf of the Board that the requirement of consideration by it of the cases of these five workmen for their employment or otherwise in terms of clause 6, at this stage, would result in a situation whereon the Board will be saddled with pecuniary liability in respect of their wages for the period from Sept. 1, 1975 till the date of the decision by the Board in that regard has been met by Sri K. P. Agarwal for the workmen, by making a statement at the Bar, after taking instructions from some of these petitioners who were present in Court, that the workmen were voluntarily giving up any claim to any financial benefit for this period. In view of this categorical statement, it is not necessary to consider the legitimacy of the objection raised on behalf of the Board in this regard. 16. Sri B. C. Day, for the third respondent, urged that the petitions were not maintainable for the union which was a party to the dispute before the Tribunal had not chosen to file it and that the petition by the workman, thus, was not competent. He has placed reliance, in respect of his submission, upon a decision of the Patna High Court in the case of Kanai Chandra Ganguli v. Presiding Officer, Central Govt. He has placed reliance, in respect of his submission, upon a decision of the Patna High Court in the case of Kanai Chandra Ganguli v. Presiding Officer, Central Govt. Industrial Tribunal (No. 2) (1971 Lab IC 569) wherein, relying upon some observations made by the Supreme Court in Ram Prasad Vishwakarma v. Chairman, Industrial Tribunal, Patna, (AIR 1916 SC 357) ( AIR 1961 SC 857 ?), it was held that the petition at the instance of the workman concerned, in the absence of the workmen's Union, was not maintainable. A perusal of the judgment of the Supreme Court in Ram Prasad's case shows that it did not deal with the question whether a writ petition under Article 226 of the Constitution was maintainable at the instance of an aggrieved workman. That was a case which dealt with the right of representation by the workman in proceedings before the Tribunal. In Kanai Chandra's case, (1971 Lab I C 569), what had happened was" that during proceeding before the Tribunal, the workmen's Union, which was sponsoring the case and which was originally a party, chose not to pursue the matter further. The workman concerned did not apply before the Tribunal to be made a party, to the proceedings which, according to the Patna High Court, could have been done by him on account of S. 2A of the Industrial Disputes Act. The Bench observed thus (at p. 571) :- "It is here in this Court for the first time that the petitioner has expressed his contemplated intention for being made a party in his individual capacity in the dispute which was disposed of by the Tribunal at the instance of the sponsoring Union. In our opinion, the writ jurisdiction of this Court is not designed to be utilised in aid of a person who had merely contemplated to take a certain course before the Tribunal." The Bench did not lay down, as has been canvassed by Sri Dey, that a writ petition at the instance of an aggrieved workman is not maintainable. If, as argued by Sri Dey, the observations of the Bench amount to a declaration to that effect, I have, with utmost respect to the learned Judges who decided that case, my reservations in accepting it. If, as argued by Sri Dey, the observations of the Bench amount to a declaration to that effect, I have, with utmost respect to the learned Judges who decided that case, my reservations in accepting it. Article 226 of the Constitution enables a person, aggrieved by a decision, to approach the High Court for redress of his grievance and it is difficult to accept, as a proposition of law, that an aggrieved workman cannot approach the High Court, except through the workmen's Union. 17. The Tribunal took the view that petitioners other than the aforesaid five petitioners had been rightly retrenched by the third respondent. It came to that conclusion after taking into-consideration the facts brought before it by the parties. The learned counsel for the petitioners has not been able to show as to how the finding that the retrenchment of these workmen was valid was erroneous in law. That part of the award of the Tribunal does not suffer from any legal infirmity. 18. The result is that the petitions succeed to the extent that the Tribunal's award, in so far as it relates to the refusal of full back wages to the five workmen concerned for the period subsequent to November 15, 1974 and to its refusal of the relief of reinstatement, deserves to be and is quashed. The Tribunal is directed to reconsider the question of payment of back wages to Sarvashri Kripa Shanker Dwivedi, S. K. Pandey, Ganga Saran, Devi Prasad and Dashrath in accordance with law. The U. P. State Electricity Board, which is the second respondent in both the writ petitions, is directed to consider the question whether it would like to absorb these five workmen in its service. For this purpose these five workmen may approach the Board which shall, if approached, consider the matter within a reasonable time. It is made clear that the Board shall not be subject to any pecuniary obligation in regard to these workmen from after September 1, 1975 in view of the relinquishment of the claim in that regard by them through their counsel during these proceedings. The parties shall bear their own costs of these petitions.