D. K. SETH, J. ( 1 ) THE award dated December 20, 1993 passed by Sri R. K. Gupta Presiding Officer, Industrial tribunal (V) U. P. Meerut in Adjudication case No. 9 of 1981 under Section 4k of the U. P. , industrial Disputes Act, 1947, has been challenged by means of this writ petition. ( 2 ) LEARNED Counsel for the petitioner Sri K. P. Agarwal contends that refusal to grant back wages, despite ordering for reinstatement by the learned Industrial Tribunal, is erroneous in law, illegal and cannot be sustained in law. According to him the grant of back wages is a rule when order of reinstatement is passed. Rule can be deviated only in certain exceptional cases where it has been shown that the workman has been employed elsewhere or had made some earning during the period of his enforced idleness or had wilfully refused to seek alternative job or the like and it is for the employer to plead and prove to the satisfaction of the Labour Court such facts. The workman is not required to plead or prove such proof. In support of his contention Mr. Agarwal relied on the decision in the case of Postal Seals Industrial Co-operative Society Limited, aligarh v. Labour Court (Sic), U. P. Lucknow and Ors. , in Special Appeal No. 1139 of 1968 disposed of in the year 1970 and the case of Hindustan Tin Works (P) Ltd. v. Employees of hindustan Tin Works (P) Ltd. (1978-II-LLJ-474) (SC) According to him the employer had neither pleaded nor proved anything, therefore, there is no scope for the Tribunal to refuse back wages, in the facts and circumstances of the case. ( 3 ) IT appears that the Tribunal had found that the petitioner was guilty of absenting himself from duty for the period June 20, 1979 till July 15, 1979 without any leave and that he did not take steps for obtaining sanction of his leave. He did not report for duty despite letters sent to him by the employer on June 8, 1979 and June 17, 1979. On account of such absence his services were terminated on July 31, 1979. It was also found that he remained absent for the period between may 25, 1979 till June 20, 1979 without any prior sanction of Earned Leave or Medical Leave. On account of such absence his services were terminated on July 31, 1979. It was also found that he remained absent for the period between may 25, 1979 till June 20, 1979 without any prior sanction of Earned Leave or Medical Leave. The allegation that the workman was on earned leave between May 25, 1979 and June 20, 1979 and had applied for medical leave for the period between June 20, 1979 to July 15, 1979, was found unacceptable by the learned Tribunal. The allegation of victimisation on account of factional rivalries prevailing in the college management, was also not believed. On the other hand it has found that the workman was himself responsible for his negligence for not obtaining sanction of leave and remaining absent from duty without leave. But the order of termination was set aside on the ground that the said termination was effected without giving any opportunity or notice to the workman and without holding any inquiry into the allegations. Though he set aside the order of termination, the learned Tribunal did not award back wages because of the negligence of the workman, who had taken his duty lightly. ( 4 ) NOW the question is whether such a ground, as has been given by the Tribunal would be exception to the rules for not granting back wages in a case of reinstatement, is a question to be gone into. Now the decision in the case of Postal Seal Industrial Co-operative Society (Supra)has not given any exhaustive example of grounds for such deviation. Neither the decision in the case of Hindustan Tin Works (P) Ltd. (Supra) has specified exception to the rule, the rule of back wages therefore, is a rule which admits exception. ( 5 ) AT the same time in the case of M/s Postal Seals Industrial Co-operative Society Limited (Supra) such rule was supported by two reasons namely "firstly the discharge having been found to be illegal, the workman continued in service inspitc of the order. Accordingly, he should get full back wages. Secondly, it appears to us that in such a case full back wages should be granted for the purpose of creating a climate in which the workman of the concern may be free from fear that their union activities will bring repraisals on their heads. Accordingly, he should get full back wages. Secondly, it appears to us that in such a case full back wages should be granted for the purpose of creating a climate in which the workman of the concern may be free from fear that their union activities will bring repraisals on their heads. " ( 6 ) THE above reasons had flowed from the observation of the learned Judges in the said case namely, workmen have got a fundamental right to form unions of their choice under Article 19 (1) (c) of the Constitution. Social interest in their associational right, so vital for industrial democracy, should in the absence of countervailing circumstances, prevail over the social interest in the employers right to fire and to consequent savings. If the employer is allowed to get off with the savings, the workmen could scarcely have the courage to form and maintain their independent unions and then there will be no industrial democracy. ( 7 ) EXCEPTION of the said rule was conceived in the said case in the following manner: "if the normal rule in a case like the one before us is to award full back wages it will follow that the employer will bear the burden of establishing the countervailing circumstances If he seeks to neutralize the normal rule. It is for him to plead and prove to the satisfaction of the Labour Court that the workmen have made some earnings during the period of their enforced idleness or they have wilfully refused to seek or accept alternative jobs. It is not for the workmen to plead and prove that they have tried to minimise the loss during their enforced idleness. " ( 8 ) IN the case of M/s Hindustan Tin Works (P) Ltd. (Supra) the said rule was espoused with the following observations: p 477 "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 spectra of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. The spectra of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service 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. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the laws proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back-wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved ( 9 ) IN the said case, the Supreme Court had granted 75% backwages. Therefore, it seems that the question of grant of backwages again comes within the discretion of the Court granting backwages. But such discretion is to be exercised judiciously having regard to the facts and circumstances of the case. In case it is found that the order of termination is set aside on account of some technicalities or that the situation was brought about by reason of negligent activities of the workman, in that event, he may not be held to be entitled to full backwages. ( 10 ) IN the present case, the Labour Court had found that the workman himself was responsible for the situation having been brought into being. Because of his own negligence, he was responsible for the situation. ( 10 ) IN the present case, the Labour Court had found that the workman himself was responsible for the situation having been brought into being. Because of his own negligence, he was responsible for the situation. In the facts and the circumstances of the case, it cannot be said that the Labour Court has not exercised its discretion judiciously. He has. been refused back wages on certain grounds as has been reflected in the order itself. Though this Court may have different opinion, but this Court would not substitute its own view when it does not appear that the Labour court had exercised its discretion injudiciously. But the fact remains that the proceeding continued for a long time. Therefore, the Labour Court would have awarded back wages to a limited extent which, in my opinion, would have been satisfied by grant of 50% of back wages. ( 11 ) THIS petition is accordingly allowed to the above extent and the order impugned stands modified to the said extent. The petition is accordingly disposed of. There will, however, be no order as to costs.