JUDGMENT Hon’ble D.P. Singh, J.—Heard learned Standing Counsel for the petitioner and Sri Manish Goyal for the contesting respondent. 2. This petition is directed against an award of the Labour Court dated 28-2-2002 as published on 29-5-2002 accepting the reference and granting reinstatement with 60% back wages to the respondent workman. 3. The respondent workman was engaged as a daily wager with the petitioner Unit since 18-5-1990 and on his cessation, he approached the Conciliation Officer, who finding that the parties were at variance, referred it as a dispute under Section 4K of U.P. Industrial Disputes Act to the Labour Court at Agra which registered it as Adjudication Case No. 89 of 1996 and summoned the parties. 4. In the written statement, the workman took up a case that he was employed as a daily wager on 18-5-1990 in the Irrigation Department of the State of U.P. and from October 1991 he was assigned the work of a Typist on daily wages but when he raised his claim for regularisation, his services were dispensed with on 31-3-1993 without any notice or retrenchment compensation. The specific case set up by the Department in its written statement was that the workman was engaged on daily wage basis @ Rs. 20/- per day in different minor irrigation projects which were only temporary and whenever they were sanctioned, the workman was engaged but for two years continuously, no project was sanctioned and, therefore, he was not entitled to any relief. It was also asserted that he was engaged from 6-10-1991 to July, 1992 and that he never worked as a typist and his appointment was dehors the rules and neither there was any work nor vacant post to engage him further. 5. After the parties had filed their respective documents, the reference was answered in negative vide award dated 21-7-1997 holding that he was not entitled to any relief. However, on an application moved on behalf of the workman, the aforesaid order was recalled and thereafter the impugned award was rendered holding that he had worked uptill 31-3-1993. 6. 5. After the parties had filed their respective documents, the reference was answered in negative vide award dated 21-7-1997 holding that he was not entitled to any relief. However, on an application moved on behalf of the workman, the aforesaid order was recalled and thereafter the impugned award was rendered holding that he had worked uptill 31-3-1993. 6. The workman had moved an application dated 9-1-1997 for summoning of the muster rolls including for the period August 1992 to March 1993, where objections were filed by the petitioner dated 27-3-1997 that nine muster rolls relating to the period October-November 1991 and from January 1992 to July 1992 had already been filed but no orders were passed by the Labour Court after the objections for summoning any other muster roll but the Labour Court drew an adverse inference for not filing other muster rolls holding that the workman had worked from 18th May, 1990 to 31st March, 1993. 7. Learned Counsel for the petitioner, apart from raising several arguments, has urged that even assuming that the respondent workman was engaged as a daily wager and had completed 240 days, the Labour Court could not have reinstated him with back wages in the teeth of the fact that he was never engaged in accordance with the service rules and being a daily wager did not hold any lien to any post and at best he could have been awarded compensation in alleged violation of Section 6-N of the Act. 8. The Labour Court after recording a finding that the workman had worked for more than 240 days, has held that the Management failed to prove that no project was sanctioned after 31-3-1993, thus went on to hold that he was entitled to reinstatement. It has to be kept in mind that the power to grant reinstatement would basically depend upon the question whether work is available or a post is vacant? This burden has to be placed on the party who claims its benefit. Case of the Management was that of denial saying after the project finished, the services of the workman were dispensed with. Thus, the Labour Court was not justified in drawing an adverse inference against the Management because it failed to prove a negative fact. The petitioner is a department of the Government and recruitment is governed service rules, which admittedly was not followed. Thus, the Labour Court was not justified in drawing an adverse inference against the Management because it failed to prove a negative fact. The petitioner is a department of the Government and recruitment is governed service rules, which admittedly was not followed. A Constitution Bench in the case of Secretary, State of Karnataka and others v. Umadevi and others J.T. 2004 (4) S.C. 420 has held that equality in public employment is a basic feature of the Constitution and as the rule of law is the core of our Constitution, Courts cannot uphold an order which is in violation of Articles 14 and 16. In regard to daily wagers and casual appointment, it held that the engagement will come to an end when it is discontinued. The contention that the aforesaid ratio in Uma Devi is applicable only for regular appointment, cannot be accepted. In a subsequent decision in the case of Nagar Mahapalika v. State of U.P., 2006 (109) F.L.R. 1092 , while dealing with a case of daily wager and ad hoc appointee, it relied upon the ratio of Uma Devi and while setting aside the judgment of the High Court, it awarded only compensation. Similarly, in the case of M.P. Housing Board and another v. Manoj Srivastava, 2006 (109) F.L.R. 194 the Apex Court held that a Daily Wager does not hold a post unless he is appointed in terms of the Act and the Rules framed thereunder and will have no legal right to be reinstated. 9. The Apex Court in U.P. State Brassware Corporation Ltd. and another v. Uday Narain Pandey, (2006) 1 SCC 479 was dealing with a case of a Daily Wager has considered large number of its earlier decisions on the question of grant of relief, after laying down certain parameters on the basis of which the relief could be moulded, it held para 41 and 42 as under : “41. The Industrial Courts while adjudicating on disputes between the management and the workmen, therefore, must take such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior Courts to make them apply the cold letter of the statutes to act mechanically. When justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior Courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law. 42. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance.” It then went on to award compensation instead of reinstatement and back wages. 10. Apart from the above, there is no finding of the Labour Court that the project was sanctioned or continued even after 31-3-1993, therefore, in the backdrop of these facts, it was not justified in granting reinstatement. 11. The Apex Court in U.P. State Brassware Corporation Ltd. (supra) has held that no precise formula could be laid-down as to under which circumstances payment of back wages is justified. It went on to add that it was not automatic or mechanical but would depend on facts of each case. In that case it awarded consolidated compensation. Even in Nagar Mahapalika (supra) after returning a finding that there was violation of Section 6-N of the Act, the Apex Court granted compensation. As is evident from the record that the workman has not proved that he was not gainfully employed and neither any such finding has been recorded by the Labour Court. The Labour Court, considering the fact, that the conciliation case was lodged after two years, granted 60% back wages. In the opinion of the Court, it was not justified. From the record, especially the award, it is apparent that the workman was earlier employed at the rate of Rs. 20/- per day and subsequently at the rate of Rs. 29/- per day. Assuming he was drawing Rs. 29/- per day and he would have been given work for all the 30 days of the month, he would have drawn a salary of Rs. 870/- in 1993. The retrenchment compensation which he would have been paid, had the provision been complied, would have been to Rs. 305/- i.e. 15 days wages for each completed year. 29/- per day and he would have been given work for all the 30 days of the month, he would have drawn a salary of Rs. 870/- in 1993. The retrenchment compensation which he would have been paid, had the provision been complied, would have been to Rs. 305/- i.e. 15 days wages for each completed year. Therefore, considering the fact that the termination was effected about ten years back, he would have drawn salary at the rate applicable in 1993 to the tune of Rs. 8,700/-, considering the rise in price index etc. it would be appropriate to award him Rs. 20,000/- lump sum as consolidated compensation. 12. For the reasons above, this petition succeeds and is allowed and the impugned award dated 28-2-2002 is hereby quashed. However, the respondent workman would be entitled to consolidated compensation/damages of Rs. 20,000/- which should be deposited with the respondent No. 2 within a period of two months and the same should be paid to the respondent workman. 13. In the circumstances of the case, no order as to cost. ————