JUDGMENT Hon’ble Arun Tandon, J.—Petitioner-employer by means of present writ petition seeks quashing of the award of the Labour Court dated 23rd July, 2011 passed in Adjudication Case No. 51 of 2008, whereunder the Labour Court has answered the reference in favour of the respondent-workman and against the employer. 2. The Labour Court under the award impugned has held that the workman was a seasonal clerk in the employment of the Sugar unit of the petitioner. He had wrongly been denied engagement from the crushing season 2007-08. The Labour Court has therefore directed that the workman shall be entitled to be restored back as seasonal employee with all the consequential benefits. 3. Sri S.D. Singh, learned counsel for the petitioner contends that for being able to invited for work in the ensuing crushing season, it is necessary for the workman to have established that he had actually worked in the last half of the crushing season in view of Clause K of the Standing Orders covering the condition of Employment of Workmen in Vacuum Pan Sugar Factories in U.P., read with U.P. Payment of Retaining Allowances to Unskilled Seasonal Workmen of Sugar Factories Order, 1972. 4. It is further contended that it was the case of the employer that the workman concerned was not in their employment and he in fact was an employee of the security agency engaged by the petitioner unit. It is also contended that there being no finding qua the workman being out of employment during the period he was disengaged, the direction for payment of full back wages to the workman is unjustified. Lastly he submits that from the records, it was established that the workman was not invited to work in the crushing season 2007-08, as there were allegations of mal practices while discharging duties as weightment clerk, therefore the Labour Court after holding that the workman was an employee of the petitioner should have afforded an opportunity to the employer to bring home the charges before the Labour Court itself for denying the relief of reinstatement. 5. 5. Sri B.N. Singh, learned counsel on behalf of respondent-workman in reply points out that it was the categorical case of the workman concerned that he had worked as a seasonal weightment clerk in the employment of the petitioner’s sugar unit in every crushing season commencing from 2004-05 in the entire season and that he was always invited at the start of the crushing season to discharge his duties as such, but for the crushing season 2007-08, which started from 26th November, 2007 work was refused to the seasonal clerk, therefore the present dispute. 6. Sri B.N. Singh Advocate submits that from the evidence brought on record by the workman as well as from the statement of the employer’s witness, namely, Virendra Arora, it was established that the workman was engaged in the entire previous crushing season and therefore the plea taken by the petitioner is misconceived. He further points out that the attendance register and other documents were specifically called for on an application made by the workman. Despite the order passed by the Labour Court, the employer did not produce the relevant documents, which were in their exclusive custody. Therefore an adverse inference has rightly been drawn by the Labour Court. The plea that the workman was engaged in the entire previous crushing season, has gone un-controverted, would necessarily included that he had worked in the later half of the crushing season also and therefore the conditions of Clause K of the Standing Order had been satisfied and the relief of reinstatement needs no interference. He also points out that if the employer wanted to bring home the charge before the Labour Court for relief of reinstatement being refused to the workman concerned, they should have made a proper application for the purpose before the Labour Court for liberty being granted to lead evidence in support of the charges. Such application was never made by the employer and therefore they cannot now be permitted before this Court to set up the plea of denial of such opportunity. 7. Heard learned counsel for the parties and examined the records of the present writ petition. 8. Such application was never made by the employer and therefore they cannot now be permitted before this Court to set up the plea of denial of such opportunity. 7. Heard learned counsel for the parties and examined the records of the present writ petition. 8. It is no doubt true that the Apex Court in the case of U.P. State Sugar Corporation Ltd. v. Niraj Kumar and others, 2010 (124) FLR 1009 (SC), has held that for a right to be invited for work at the start of crushing season as available to a seasonal employee of a sugar unit, it is necessary for the employee concerned to establish that he had actually worked in the entire second half of the crushing season. In the facts of the case, this Court finds that in the written statement as well as in his oral testimony, the workman had categorically stated that he had worked in the crushing season 2004-05 and thereafter in every season throughout and that his work in all the crushing seasons was satisfactory. It was further his specific case that at the start of every crushing season, he was invited for work except for the crushing season 2007-08 when he was denied such work. On enquiry why work was not being assigned after he was informed that his services have been put to an end on the charges of certain alleged mal practices. This Court further finds that the employer’s witness, namely, Virendra Arora admitted that the workman had worked in the crushing season 2004-05 onward till 2006-07 in every season continuously. The Labour Court has considered the evidence brought on record and has come to the conclusion that the workman had worked in the entire previous crushing season. Reference may also be made to the cross-examination of the workman concerned by the employer with regard to the question as to whether for the crushing season 2006-07 he was paid his entire wages together (Ek Sath). The answer given was that in the crushing season 2006-07 he was not paid the entire wages together i.e. (Ek Sath) on 18/19th May, 2007, meaning thereby that he was paid his wages as and when they fell due for the entire crushing season. The answer given was that in the crushing season 2006-07 he was not paid the entire wages together i.e. (Ek Sath) on 18/19th May, 2007, meaning thereby that he was paid his wages as and when they fell due for the entire crushing season. Taking into consideration the evidence as aforesaid, the Labour Court has come to the conclusion that the workman had worked in the crushing season 2004-05 till crushing season 2006-07 continuously in each of the crushing season. Such finding of the Labour Court which is based on evidence cannot be termed as perverse. Even if any other view may be possible on the reading of the said evidence as suggested by learned counsel for the petitioner, this Court cannot substitute its own view after reappraisal of the evidence. The findings of fact recorded by the Labour Court cannot be interfered with, unless they are demonstrated to be perverse or based on no evidence. This Court finds no good ground to interfere with the impugned award to the extent it has held that the workman was seasonal employee and is entitled to reinstatement in view of the fact that he had worked in the entire crushing season commencing from 2004-05 till 2006-07. Similarly this Court finds that the Labour Court on the basis of evidence on record has rightly held that the workman was not an employee of the security agency. Such finding of fact also cannot be reopened by reappraisal of the evidence by this Court under Article 226 of the Constitution of India. 9. So far as the issue with regard to opportunity of hearing having not been afforded to the employer to bring home the charge before the Labour Court itself against the employee is concerned, suffice is to record that no such plea was raised by the employer before the Labour Court land. It is too late now for the employer to challenge the award on the said ground. The award of the Labour Court cannot be questioned on the ground not raised before it. 10. In view of the aforesaid this Court finds no good ground to interfere with the award. Insofar as it holds that refusal of work to the workman in the crushing season 2007-08 was illegal and the workman was entitled to be restored back as seasonal clerk. 11. 10. In view of the aforesaid this Court finds no good ground to interfere with the award. Insofar as it holds that refusal of work to the workman in the crushing season 2007-08 was illegal and the workman was entitled to be restored back as seasonal clerk. 11. So far as the grant of full back wages is concerned, this Court finds that in absence of any finding that the workman was not gainfully employed during the period he disengaged, the direction for payment of full back wages is legally not justified. In my opinion, 50 % (fifty per cent) of the back wages would serve the interest of justice. The award of the Labour Court is modified to that extent only. 12. The writ petition is disposed of. ——————