JUDGMENT Hon’ble S.U. Khan, J.—Heard learned counsel for the parties. Order dated 16.11.2010 on which date arguments were heard and judgment was reserved is quoted below: “Heard learned counsel for the parties. Judgment reserved. Learned counsel for the petitioner has argued that under different orders passed in this writ petition petitioner has paid Rs. 50,000/- as back wages to the workman respondent and workman respondent has been reinstated on 1.5.2008. These two facts are admitted by the learned counsel of workman respondent.” 2. Order dated 1.5.2009 passed on the application filed by the employer is also quoted below : “The case has been nominated to me by order of Hon. Senior Judge through order dated 24.4.2009. Learned counsel for the applicant states that there is some delay in reinstatement of respondent No. 2 in pursuance of stay order dated 13.9.2005. According to the learned counsel for the petitioner petitioners have taken back respondent No. 2 in service on 1.5.2008. Delay in reinstatement of respondent No. 2 in pursuance of interim order dated 13.9.2005 is condoned on the condition that petitioner shall pay Rs. 50,000/- to respondent No. 2 within six weeks. If ultimately while deciding this writ petition finally it is held that respondent No. 2 is entitled to any wages prior to 1.5.2008 then this amount of Rs. 50,000/- will be adjusted in the said wages. Application is disposed of.” 3. This writ petition is directed against award dated 16.3.2005 given by Presiding Officer, Industrial Tribunal (I) U.P. Allahabad in Adjudication Case No. 14 of 1990. The matter which was referred to the labour Court as to whether the action of the petitioner employer terminating the services of its workman respondent No. 2, Nanhe Lal Yadav w.e.f. 1.3.1989 was just and valid or not. Earlier the matter was decided against the workman and it was held that he was not entitled to any relief. The said award was passed on 20.06.1991 against which workman filed Writ Petition No. 30231 of 1991. The said writ petition was allowed on 12.04.2004 and mater was remanded to the Industrial Tribunal. Copy of the said judgment of the High Court is Annexure-I to the writ petition. In the remand order, it was observed that the Industrial Tribunal shall specifically decide as to whether the workman had completed 240 days of continuous service in any of the calendar years continuously or not? Copy of the said judgment of the High Court is Annexure-I to the writ petition. In the remand order, it was observed that the Industrial Tribunal shall specifically decide as to whether the workman had completed 240 days of continuous service in any of the calendar years continuously or not? After remand the Industrial Tribunal decided the matter in favour of the workman holding that he had worked for more than 240 days in a year, hence termination of his services without payment of retrenchment compensation in accordance with Section 6-N of U.P. Industrial Disputes Act was bad in law. In Para-14 of the award, it was held that the workman had worked from 1.12.1987 to 31.7.1988 which comes to 243 days. This finding was recorded on the basis of muster rolls filed by the workman. Ultimately reinstatement with full back wages was directed. Through interim order passed in this writ petition dated 18.9.2005 operation of the impugned award was directed to be kept in abeyance until next date of listing provided that the petitioner reinstated the respondent No. 2. 4. In Para-3 of the earlier judgment of this Court (Annexure-I to the writ petition) it is mentioned that the workman Nanhe Lal, respondent No. 2 claimed that he was appointed in the year 1980. Same fact has been stated in Para-2 of the impugned award. However, in the counter-affidavit filed by respondent No. 2 himself alongwith stay vacation application sworn on 6.12.2009 his age is shown to be 37 years meaning thereby that he was born in the year 1972 and therefore in the year 1980 he was only eight years old. Even in December, 1987 he must have been only 16 years of age and not entitled to be appointed. In the year 1989 when his services were terminated on 1.3.1989, he must be 17 years of age. The Court wonders what to do in such situation. 5. During pendency of the reference before the Industrial Tribunal at the initial stage workman had filed some application for summoning some records. Against the said application petitioner employer had filed objections stating therein that appointment of the workman was time bound and he was appointed periodically every year in Magh Mela (January & February) and after closure of Magh Mela his services were terminated automatically. Against the said application petitioner employer had filed objections stating therein that appointment of the workman was time bound and he was appointed periodically every year in Magh Mela (January & February) and after closure of Magh Mela his services were terminated automatically. The Industrial Tribunal held that this aspect could not be taken into consideration as no such thing was stated in the written statement of the employer where the employer had categorically stated that the workman was not its employee in any capacity. This High Court in its remand order dated 12.4.2004 had directed that the document filed by the workman and marked as Ex.W-14 should specifically be considered by the Industrial Tribunal. Ex.W-14 is a sort of certificate issued by Sri J.P. Singh, an officer of the employer that Nanhe Lal had worked from 2.12.1987 to 28.2.1989 under muster roll as chaukidar mazdoor. 6. It is mentioned in Para-11 of the impugned award that when the proceedings were pending at the earlier stage, the workman had filed an application for summoning muster roll, pay register from January, 1988 to July, 1988, February, 1989 and December, 1987 in original and original copy of letter dated 1.12.1987 written by store keeper J.P. Singh, Magh Mela. (J.P. Singh being Store Keeper Magh Mela could not certify working period of any workman beyond Magh Mela period which ends on 28/29 February very year.) It is strange that muster roll for continuous period was not sought to be summoned. It is further mentioned in Para-11 of the impugned award that through order dated 6.7.1990 employer was directed to file the document on the next date, however the said order was not complied with. Thereafter, in Para-14, it is mentioned that muster rolls filed by the workman were perused by the Presiding Officer of the Industrial Tribunal. It is not mentioned that how the workman obtained the muster rolls, which were taken on record as secondary evidence. Labour Court further concluded that the muster rolls proved that since 1.12.1987 till 31.7.1988, the workman had worked continuously without a single break and the period came to 243 days. Thereafter, in Para-15, Ex.W-14 is mentioned which states that petitioner had worked since 2.12.1987 to 28.2.1989. 7. Labour Court further concluded that the muster rolls proved that since 1.12.1987 till 31.7.1988, the workman had worked continuously without a single break and the period came to 243 days. Thereafter, in Para-15, Ex.W-14 is mentioned which states that petitioner had worked since 2.12.1987 to 28.2.1989. 7. In view of the above the labour Court held that the workman had worked for more than 240 days and provisions of Section 6-N of U.P.I.D. Act were not complied with. The Supreme Court in Range Forest Officer v. S.T. Hadimani, AIR 2002 SC 1147 has held that the burden to prove that the workman had worked for 240 days lies upon the workman. 8. Moreover, it has been held by the Supreme Court in several authorities including the following that if the only defect in the termination order of a workman is non compliance of Section 25-F of Industrial Disputes Act (or 6-N of U.P.I.D. Act), then it is not always necessary to direct reinstatement and in such situation award of consolidated damages would be more appropriate relief particularly when the employer is Government or Governmental agency and relevant Rules have not been followed before appointment and workman was daily wager or muster roll employee. “Nagar Mahapalika v. State of U. P.”, AIR 2006 SC 2113 . “Haryana State Electronics Devpt Corpn. v. Mamni”, AIR 2006 SC 2427 . “Sita Ram v. Moti Lal Nehru Farmers Training Institute”, AIR 2008 SC 1955 . “Jagbir Singh v. Haryana State Agriculture Marketing Board and another”, AIR 2009 SC 3004 . 9. In Senior Superintendent, Telegraph (Traffic) Bhopal v. Santosh Kumar Seal and others, AIR 2010 SC 2140 , it has been held that if daily wagers had worked for 2 or 3 years and their services were terminated without payment of retrenchment compensation then consolidated damages should be awarded to them. It has also been held that daily wager does not hold a post and cannot be equated with permanent employee. This view has been reiterated in Incharge Officer v. Shankar Shetty, 2010 (9) JT 262 . 10. Learned counsel for the workman has cited the following authorities : (i) Harjinder Singh v. Punjab State Warehousing Corporation, JT 2010 (1) SC 598. (ii) Krishan Singh v. Executive Engineer, Haryana, State Agricultural Marketing Board, Rohtak (Haryana), 2010(2) ESC 205 (SC). This view has been reiterated in Incharge Officer v. Shankar Shetty, 2010 (9) JT 262 . 10. Learned counsel for the workman has cited the following authorities : (i) Harjinder Singh v. Punjab State Warehousing Corporation, JT 2010 (1) SC 598. (ii) Krishan Singh v. Executive Engineer, Haryana, State Agricultural Marketing Board, Rohtak (Haryana), 2010(2) ESC 205 (SC). (iii) Maharashtra State Road Transport Corporation and another v. Casteribe Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC 556 . (iv) Bhart Bank Ltd. Delhi v. Employees of Bhard Bank Ltd. Delhi, AIR 1950 SC 37. 11. In the first two authorities, the authorities mentioned above were not brought to the notice of the Bench which decided the said cases. In the third authority, it was held that inspite of Constitution Bench judgment of State of Karnataka v. Uma Devi, 2006 (4) SCC 1 , labour Court can direct regularisation/permanence. In the instant case no such question is involved. In the last case it was held that labour Court/industrial tribunal even though technically not a Court still it discharges judicial functions and that labour Court while deciding industrial disputes has to override contracts and can create rights, which are opposed to contractual rights. 12. Accordingly, writ petition is allowed. Impugned award is set aside. The amount of Rs. 50,000/- paid to the workman respondent No. 2 is treated to be consolidated damages/ compensation. The salary which the workman must have received since 1.5.2008 till date shall also not be refundable. —————