JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard counsels for the parties and perused the record. 2. By means of this writ petition, the petitioner U.P. Road Transport Corporation challenges the legality and correctness of the impugned award dated 9.8.1991 passed by the respondent No. 2, published on Notice Board on 1.6.1992 3. Briefly stated, the facts of the case are that the respondent No. 3 workman was appointed in service of the petitioner-Corponation on 1.4.1974 as Conductor. He worked as such till his services were terminated vide order dated 19.11.1979. 4. It is alleged that on 15.4.1979, respondent No. 3 the workman was conducting bus No. UPG 5028 in Farrukhabad-Sankisgarh route carring, 118 passengers having no valid ticket. Near village Neem Karori (at a distance of 8 kms. from Mohammadabad), the bus was stopped by the checking staff, and it was found that out of 120 passengers, 118 did not have any ticket. The passengers reported that the conductor had already received ticket charges but no ticket was issued to them. The workman was placed under suspension vide order dated 20.4.1979 and after departmental proceedings, his services were terminated vide order dated 19.11.1979. 5. Aggrieved by the order of termination, the workman preferred statutory appeal, which was dismissed. 6. Thereafter, the workman raised an industrial dispute through Roadways Karmachari Sanyukt Parishad, U.P. Chunniganj, Kanpur before the Regional Conciliation Officer, Kanpur. 7. On failure of conciliation proceedings, the following dispute was referred to respondent No. 2 Labour Court II, Kanpur by the State Government in exercise of power under Section 4(k) of the U.P. Industrial Disputes Act, 1947, which was registered as Adjudication Case No. 9 of 1986 : “Whether suspension of workman Harish Chandra Saxena son of Surya Pal Saxena, Conductor vide order dated 20.4.79 and termination of the same vide order dated 19.11.1979 by employer is just and proper or legal, if not, to what relief the concerned workman is entitled to ?” 8. A preliminary issue was framed by the Labour Court on the basis of pleadings of the parties as to whether the domestic enquiry conducted by the petitioner was fair and proper or not. A preliminary issue was framed by the Labour Court on the basis of pleadings of the parties as to whether the domestic enquiry conducted by the petitioner was fair and proper or not. The Labour Court decided the preliminary issue holding that the domestic enquiry was not fair and proper, as such, the petitioner-employers were allowed to prove the case on merits and to justify their action regarding termination of the services of the workman by leading evidence before the Labour Court. 9. The Labour Court decided the preliminary issue holding that the domestic enquiry was not fair and proper, as such, the petitioner-employers were allowed to prove the case on merits and to justify their action regarding termination of the services of the workman by leading evidence before the Labour Court. 9. After considering the respective case of the parties on the basis of evidence and materials placed before the Labour Court, it decided the reference by the impugned award in favour of the workman holding that : Þ13- mijksDr foospuk ls Li"V gksrk gS fd lsok;kstd fdlh vfHkys[k ds ek/;e ls ;g fl) ugha dj lds fd cl esa 118 ;k=h fcuk fVdV Fks vkSj muls iSlk ifjj{kd }kjk ysdj fuxe dks gkfu igq¡pk;k x;kA lsok;kstd ;g Hkh fl) ugha dj lds fd fdu foHkkxh; fu;eksa dk ifjpkyd us mYya?ku fd;k gSA bl laca/k esa vkjksi i= esa ;gh vafdr gS fd ckn esa ck¡Vs gq, fVdV jksy ;kf=;ksa us ysdj vius vki QkM+dj vil esa ck¡V fy;sA ;k=h ,d lkFk 118 fVdV gh QkM+rs ;g Hkh fookl djus ;ksX; ckr ugha gSA lsok;kstd ;fn ek¡x i= ÁLrqr djrs rks lPpkbZ lkeus vkrh vkSj lEHkor% lsok;kstdksa ds }kjk bruk egRoiw.kZ vfHkys[k okn dh lquokbZ ds nkSjku lgh rF; fNikus dh n`f"V ls ÁLrqr ugha fd;k x;kA ,slh fLFkfr esa lsok;kstd lk{; rFkk ;krk;kr fujh{kd dh fjiksVZ lafnX/k gks tkrh gSA Jfed i{k }kjk ÁLrqr mPp U;k;ky; ds fu.kZ; ds vuqlkj eq[; vf/kdkjh ftlus fjiksVZ mPp vf/kdkjh dks ÁLrqr dh gS ;fn mPp vf/kdkjh dks lk{; gsrq ÁLrqr ugha fd;k x;k gS ,slh fLFkfr esa Jfed lsok esa cgkyh dk iqjk gdnkj gSA 14- lsok;kstd i{k us tks fu.kZ; mPpre U;k;ky; ds ÁLrqr fd;s gSa mudks n`f"V esa j[krs gq, dsoy fiNys le; ds Hkqxrku ij fopkj fd;k tk ldrk gSA ;g ?kVuk 1979 dh gS vkSj Jfed dks fnukad 19-11-1979 ls ukSdjh ls fudkyk x;k gS tc fd Jfed }kjk lakk/ku vf/kdkjh ds le{k o"kZ 1985 esa okn mBk;k x;k vkSj ;g okn fnukad 17-12-1985 dks vfHkfu.kZ; gsrq lanfHkZr fd;k x;kA vr% mijksDr ifjis{; esa esjk fu.kZ; gS fd Áfroknh lsok;kstd okn ls lacaf/kr Jfed Jh lrhk pUnz lDlsuk iq= Jh lw;Ziky lDlsuk dks bl vfHkfu.kZ; ds Ádkku ds 30 fnu ds vUnj lsok esa iquZLFkkfir djsa rFkk mls fnukad 17-12-1985 ls ewy osru o vU; HkRrksa dk Hkqxrku djsaA ukSdjh ls fudkys tkus dh frfFk ,oa fnukad 17-12-1985 rd dh vof/k mldh lsokdky eas tksM+h tk;sxh vkSj og mDr vof/k esa osru o HkRrksa ds vykok Hkh lHkh Ádkj ds fgrykHk ikus dk vf/kdkjh gksxkA lsok;kstd Jfed Áfrfuf/k dks okn O;; ds :i esa 200@& :i;s dk Hkqxrku vkSj djsaxsA g0 Mh0 ,l0 fuxe ihBklhu vf/kdkjhÞ 10. Counsel for the petitioner contended that a bare perusal of the, impugned award reflects that the workman himself had admitted that 118 passengers were travelling on the board of bus, in question and that he could not complete his waybill and could not make entry of ticket distributed to them as driver of the bus did not stop the bus so it is clear that the passengers were travelling without ticket. 11. Learned counsel for the petitioner has further contended that the petitioner had raised a specific plea before the Labour Court in paragraph 12 of the re-joinder statement that the concerned workman was gainfully employed and is not entitled to any relief, whatsoever. Paragraph 12 of the re-joinder statement is as under : “12. That the contents of para 12 being absolutely incorrect and baseless are denied. The Union is put to strict proof thereof. The workman concerned is gainfully employed and is not entitled to any relief whatsoever under the present proceedings.” 12. On the basis of above submissions, counsel for the petitioner vehemently urged that the concerned workman did not rebut the aforesaid plea nor in his evidence he has stated anything about gainful employment and that the Labour Court also has not considered this specific plea of the petitioner in the award, as such, the impugned award has been passed ignoring the case of the petitioner. 13. A perusal of the award shows that the case of the petitioner that the Labour Court has not given any finding on the question of gainful employment of the workman is incorrect. In paragraph 11 of the award the Labour Court has dealt with the question of gainful employment of the workman thus : Þ11- lsok;kstd i{k vius xokg }kjk ugha fl) dj lds fd dkSu ls fu;eksa dk Jfed us mYya/ku fd;k gSA ;g Hkh ugha fl) dj lds fd Jfed us tk¡p ds nkSjku dksbZ O;olk; mRiUu fd;k cfYd bl fcUnq ij lsok;kstdksa ds xokg us ftjg esa dgk fd ifjpkyd us mu yksxksa ds lkFk dksbZ vHknz O;ogkj ugha fd;Kaþ 14. In U.P. State Brassware Corporation Ltd. and another v. Uday Narain Pandey, (2006)1 SCC 479 , it has been held by Hon’ble the Apex Court that the onus to prove that he was not gainfully employed during the period for which back wages are claimed is on the workman. In U.P. State Brassware Corporation Ltd. and another v. Uday Narain Pandey, (2006)1 SCC 479 , it has been held by Hon’ble the Apex Court that the onus to prove that he was not gainfully employed during the period for which back wages are claimed is on the workman. From the appraisal of record, it is apparent that the workman has not alleged that he was not gainfully employed elsewhere during the period, in question. 15. Counsels for the parties have stated that in pursuance of the award the workman has already been reinstated in service and so the only controversy of award of back wages is involved in the present case. 16. Accordingly, the writ petition is partly allowed. The impugned award dated 9.8.1991 (Annexure 1 to the writ petition) is modified to the extent that the respondent No. 3 shall not be entitled to back wages. However, for the pensionary benefits, the period of his absence from the date of termination till the date of reinstatement shall be treated to be continuous service. No order as to costs. ———