JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—Aggrieved by an award of labour Court, granting reinstatement in service alongwith continuity and all service benefits, petitioner employer has preferred this petition under Article 226 of the Constitution of India. 2. Undisputed facts, giving rise to the dispute herein, are that respondent-workman got substantively appointed as Sub Station Attendant, on 7.7.1977 and worked as such w.e.f. 16.7.1977. His services were also confirmed. While working, as Sub Station Attendant, he absented from duty w.e.f. 1.2.1981. A letter was sent by employer on 21.4.1981, intimating absence w.e.f. 1.2.1981, and requiring his immediate joining, failing which, disciplinary action was to follow. Respondent-workman responded vide letter dated 2.5.1981, annexing medical certificate to show illness and sought leave w.e.f. 1.2.1981 to 1.6.1981. In response to such letter, Executive Engineer concerned directed workman to resume duty w.e.f. 1.6.1981 positively, otherwise, his services would be terminated after notice. In response to this letter, respondent-workman claims to have again sent a letter on 31.5.1981, seeking extension of medical leave upto 31.7.1981. This letter of respondent-workman was also replied by employer vide letter dated 20.7.1981, whereby respondent-workman was directed to resume his duty w.e.f. 1.8.1981 and he was also informed that he has been transfered to Electricity Distribution Division-I, Moradabad. Respondent-workman alleges that he kept writing letters to employer for extension of leave on medical ground from 1.2.1981 to 8.12.1985, and thereafter when he reported for joining on 9.12.1985, he was informed that his services were terminated on 27.5.1982. It is alleged that as no relief upon representations were given, as such, respondent-workman invoked the forum created under the Industrial Disputes Act, which ultimately resulted in making of a reference, after failure of conciliation, by the State, on 29.8.1990, for an adjudication by labour Court concerned. 3. The employer contested reference by saying that respondent-workman absented unauthorizedly, without any prior information or sanction leave w.e.f. 1.2.1981 and he remained absent for about 5 months, whereafter he requested employer to sanction medical leave, but he never appeared before the employer and merely kept sending letters in defiance of the directions issued by the employer to forthwith report for joining. Repeated notices were sent directing the respondent-workman to report for joining but the same were not honoured. Notices were also published in newspaper requiring respondent-workman to report for joining but all such attempt failed. Repeated notices were sent directing the respondent-workman to report for joining but the same were not honoured. Notices were also published in newspaper requiring respondent-workman to report for joining but all such attempt failed. The employer had no alternative left, except to terminate the services of respondent-workman on 27.5.1982, on account of continued unauthorized absence from his duty. 4. The dispute was referred to the labour Court concerned for adjudication of the questions as to whether termination of service of respondent-workman w.e.f. 27.5.1982 was legal and valid or not, and to what relief was respondent-workman entitled? Labour Court after giving opportunity of contest to the parties and after considering oral and documentary evidence, brought on record before it, came to the conclusion that order of termination passed against respondent-workman was on account of unauthorized absence of respondent-workman, which amounted to misconduct, and for such charge, an order of termination could be passed only after holding departmental enquiry. Labour Court found that as no disciplinary proceeding had been initiated against the respondent workman, it was treated to be violation of principle of natural justice, and reference was answered in favour of respondent-workman, granting him reinstatement, continuity of service and all service benefits. 5. Challenging the award of labour Court, learned counsel for petitioner submits that respondent-workman had absented unauthorizedly, without securing any proper leave, and as he had remained absent for a period of more than one year, in defiance of repeated directions issued by the employer for immediate joining, in such circumstances, the order of termination was valid and required no interference. Learned counsel further submits that an interim protection had been granted by this Court while entertaining the writ petition against award, which has continued. It is also contended that raising of industrial dispute was after expiry of more than 5 years, and the matter was referred to labour Court almost after 8 years of his termination. Submission is that respondent-workman had not worked even for a day w.e.f. 1.2.1981 and now he is nearing superannuation, and therefore, in such circumstances, grant of relief to respondent-workman of continuity in service alongwith all service benefits, in a routine and mechanical manner, is wholly arbitrary. 6. Submission is that respondent-workman had not worked even for a day w.e.f. 1.2.1981 and now he is nearing superannuation, and therefore, in such circumstances, grant of relief to respondent-workman of continuity in service alongwith all service benefits, in a routine and mechanical manner, is wholly arbitrary. 6. Learned counsel for respondent-workman, on the other hand, submits that under relevant service regulations, unauthorized absence amounts to misconduct and no order of termination upon such charge could have been passed, without holding a proper departmental enquiry in the matter, and as this was not done, respondent-workman was entitled to reinstatement and grant of benefit, in this regard, by labour Court, requires no interference. Learned counsel submits that respondent-workman has already suffered to a great extent and writ petition lacks merit and is liable to be dismissed. 7. On the basis of submissions, aforesaid, following questions arise for consideration in the present writ petition : (i) Whether labour Court was justified in holding the termination of respondent-workman to be bad on account of there being no disciplinary proceeding initiated against him? (ii) Whether grant of relief of reinstatement alongwith continuity of service and all other benefits under the facts and circumstances is justified or not? 8. Learned counsel for the petitioner states that service conditions of respondent-workman are governed by the provisions of U.P. State Electricity Board (Officers and Servants) (Conditions of Service) Regulations, 1975, which have been framed in exercise of powers conferred by sub-section (c) of Section 79 of the Electricity (Supply) Act, 1948. Services of respondent-workman, therefore, are governed by statutory service regulations. Clause 3(1) of the regulations clearly provide that no person shall be dismissed, removed or reduced in rank, except after enquiry, in which he has been informed of the charges against him, and given a reasonable opportunity of being heard in respect of those charges. This provision is followed with a proviso, which has exceptions to it, but as necessary ingredients to attract proviso are not available in the present matter, such aspects are not being further elaborated. 9. Perusal of the termination order, which has been brought on record, goes to show that respondent-workman was a temporary Sub Station Attendant, whose services have been terminated with immediate effect. 9. Perusal of the termination order, which has been brought on record, goes to show that respondent-workman was a temporary Sub Station Attendant, whose services have been terminated with immediate effect. However, in proceedings before the labour Court and also before this Court, it is admitted to the petitioner employer that respondent-workman had been substantively appointed and that the order of termination passed against him was not a discharge simpliciter, but was passed due to unauthorized absence from duty. 10. Labour Court has found that termination of services of respondent-workman was in fact a punishment for the misconduct on his part, on account of unauthorized absence and his failure to join, despite instructions of employer. Labour Court, in such circumstances, has held that such an order could not have been passed, without holding disciplinary proceeding, and as it had not been, the order of termination was held to be bad in law. 11. Having considered the submissions and materials brought on record, I am of the opinion that once an order of termination is being passed on account of specific charge of unauthorized absence, it amounted to termination of service due to misconduct. As no disciplinary proceedings were conducted, as such, the order of punishment cannot be held to be justified, as it was in teeth of clause 3(1) of Statutory Regulations of 1975, which is reproduced : “3.(1) No such person as aforesaid shall be dismissed, removed or reduced in rank except after inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:” 12. This Court finds substance in the submission advanced by learned counsel for respondent that finding returned by labour Court in this regard, is not liable to be interfered with, under Article 226 or 227 of the Constitution of India, unless such finding is either perverse or is based upon no legal evidence. Reliance has been placed upon the judgment of the Apex Court in Management of Madurantakam Co-operative Sugar Mills Ltd. v. S. Viswanathan, 2005 (104) FLR 1229. In the facts and circumstances of the present case, finding of the labour Court that termination is illegal cannot be said to be either perverse or based upon no legal evidence. The award of labour Court, in this regard, requires no interference and first question is answered, accordingly. 13. In the facts and circumstances of the present case, finding of the labour Court that termination is illegal cannot be said to be either perverse or based upon no legal evidence. The award of labour Court, in this regard, requires no interference and first question is answered, accordingly. 13. Coming to the second relating to grant of relief to the respondent-workman, it is apparent that respondent-workman had been appointed substantively in the year 1977 and he worked only upto 1.2.1981, whereafter he absented from duty. From the records, it transpires that respondent-workman had not reported for joining, and even though his services were terminated w.e.f. 27.5.1982, yet, no timely challenge to the termination order was made and proceedings to raise industrial dispute was initiated after delay of 5 years. Reference was made to labour Court only on 29.8.1990, which was after expiry of more than 8 years of passing of termination order dated 27.5.1982. There was no evidence led on behalf of respondent-workman to explain latches on his part in raising of industrial dispute and his stand before labour Court clearly was that he reported for joining for the first time on 9.12.1985 and only then he came to know about order of termination. Respondent-workman has also not produced documents to substantiate as to what was the nature of ailment with which he was suffering which prevented his joining for a period of almost four years. Labour Court, however, has not considered such issues and after holding the termination to be bad in law, on account of fact that no disciplinary proceedings were initiated, and has granted relief of reinstatement, continuity of service and all service benefits, in a routine and mechanical manner. Learned counsel for the petitioner submits that grant of relief of back wages, continuity of service etc. cannot be as a matter of routine and labour Court was required to exercise its jurisdiction, applying correct legal principles, for awarding relief. Reliance has been placed upon the judgment of the Apex Court in Krishan Singh v. Executive Engineer, 2010 (3) SCC 637 , to submit that grant of back wages is not a matter of routine. It is also submitted that award itself was stayed by this Court, which has continued on account of pendency of present writ petition, and now respondent-workman is at the verge of superannuation. It is also submitted that award itself was stayed by this Court, which has continued on account of pendency of present writ petition, and now respondent-workman is at the verge of superannuation. In such circumstances, submission is that as respondent-workman has not worked ever since 1.2.1981, he was not entitled to the relief allowed. 14. Learned counsel for respondent, on the other hand, submitted that there was no delay in raising of industrial dispute and the award of labour Court itself has not been implemented as the petitioner challenged it before this Court, and in such circumstances, as workman was not at fault, the grant of relief cannot be faulted and petition is liable to be dismissed. It is submitted that respondent-workman still has eight months of service left. 15. Having examined this aspect of the matter, this Court finds that labour Court, in view of the finding that termination from service was illegal, has granted relief of reinstatement, continuity of service, and other service benefits, as a matter of routine. There is no discussion or consideration on the aspect relating to grant of relief to the respondent-workman. Labour Court has also failed to notice relevant facts and circumstances that industrial dispute itself was belatedly raised by the respondent-workman. Further facts that respondent-workman had remained absent without any sanction leave etc. was also a relevant consideration, which was ignored. It was also brought on record that notices have been issued to the workman for resuming duty, but he failed to honour it. Labour Court also failed to notice the fact that almost a period of 10 years had been gone by, when award was made, during which respondent-workman had not worked at all. Moreover, termination was held to be illegal only on the ground that no proper enquiry had been conducted but the conduct of respondent-workman could not be termed as unblemished. Grant of relief, in such circumstances, as a matter of routine by labour Court cannot be sustained. 16. The issue with regard to grant of back wages had been the subject-matter of consideration by the Apex Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, 2013 (10) SCC 324 . After considering large number of judgments of the Apext Court, on the subject, following principles were laid down in para 38 of the judgments, which are reproduced : “38. After considering large number of judgments of the Apext Court, on the subject, following principles were laid down in para 38 of the judgments, which are reproduced : “38. The propositions which can be culled out from the aforementioned judgments are: 38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. 38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5. The cases in which the competent Court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the Court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The Courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6. In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees7. 38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal5 that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches7,8 referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.” 17. Since in the facts and circumstances of the present case, it is found that conduct of respondent-workman was not entirely unblemished and a belated industrial dispute was raised, as such, relief of reinstatement alongwith service benefits including continuity of service, as a matter of routine, cannot be sustained. Considering the facts and circumstances of the present case, I am of the opinion that as respondent-workman has not worked since 1981, and his conduct in remaining unauthorizedly absent, and not reporting for joining, despite notices issued by the employer, coupled with belated raising of industrial dispute, are all factors which disentitle the respondent-workman to grant of relief, which has been allowed by labour Court. However, respondent-workman cannot be held liable for his non-working, after the award, as it was due to an interim order passed by this Court, in a challenge to award at the instance of employer. In such circumstances, it would be appropriate to modify award of labour Court, by allowing reinstatement together with 50% back wages from the date of termination till the respondent-workman is allowed joining, pursuant to this order, instead of granting entire back wages and service benefits. 18. In view of the discussions made above, the writ petition is allowed, in part, and award of the labour Court dated 19.4.1991 in Adjudication Case No. 12 of 1990 is modified, by providing that respondent-workman would be entitled to reinstatement within a period of three weeks from today, alongwith 50% back wages from the date when his services were terminated till his reinstatement, pursuant to this order. Respondent-workman would not be entitled to any salary from 1.2.1981 to 27.5.1982, as he had unauthorizedly remained absent during such period. However, he shall be entitled to continuity of service and the amount payable under this order shall be released within a period of two months from today. 19. Accordingly, writ petition succeeds in part, but there shall be no order as to costs. ——————