JUDGMENT : Rajiv Sharma, J. The present petition is directed against the award dated 18.09.2012 passed by the Presiding Officer, Labour Court, Haridwar in Adjudication Case No.504 of 2009. 2. “Key facts” necessary for adjudication of this petition are that the respondent no.2-workman was engaged on 28.08.1998 as sweeper. He had worked upto 31.12.2006. He was retrenched on 01.01.2007 without following the due process of law. He raised the industrial dispute. The matter was referred to the Labour Court. The workman filed the statement of claim. The employer filed the reply. 3. According to the workman, he had worked for 240 days in a calendar year. He was neither issued any notice nor any compensation was paid to him. 4. Learned Labour Court answered the reference in favour of the workman-respondent no.2 on 18.09.2012. Hence, this writ petition. 5. The workman has appeared as a witness before learned Labour Court. He testified that he had worked for 240 days in a calendar year. 6. Mr. Sanjay Kumar who appeared on behalf of the employer as E.W.1 has admitted that the workman-respondent no.2 was their employee. The statement made by the workman has not been rebutted by the management/employer. 7. It is true that the initial burden is on the claimant to prove that he had worked for 240 days. In this case, the workman has appeared in the witness box. He has adduced cogent evidence that he had worked for 240 days. The workman has moved an application to summon the attendance register. The application was allowed by the Presiding Officer. However, the employer has not produced the attendance register. Thus, adverse inference was required to be taken against the employer. 8. Learned counsel on behalf of the employer has vehemently argued that reinstatement could not be ordered rather learned Labour Court should have awarded lump sum payment to the workman. 9. Learned counsel for the employer/petitioner has also argued that the respondent no.2-workman had misbehaved with the employer. However, the fact of the matter is that no domestic inquiry was ever instituted against him. 10. It is settled law that if the retrenchment is void ab initio, the workman is entitled for reinstatement. Since, the mandatory provisions of Section 6(N) of the U.P. Industrial Disputes Act, 1947 were not complied with, the retrenchment of the workman was void ab initio. 11. 10. It is settled law that if the retrenchment is void ab initio, the workman is entitled for reinstatement. Since, the mandatory provisions of Section 6(N) of the U.P. Industrial Disputes Act, 1947 were not complied with, the retrenchment of the workman was void ab initio. 11. Their Lordships of Hon’ble Supreme Court in (2013)10 SCC 324 , titled as “Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.)”, have held as under on the issue of reinstatement of workman:- “37. After noticing several precedents to which reference has been made hereinabove, the two Judge Bench observed: “17. There is also a misconception that whenever reinstatement is directed, "continuity of service" and "consequential benefits" should follow, as a matter of course. The disastrous effect of granting several promotions as a "consequential benefit" to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualised while granting consequential benefits automatically. Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether "continuity of service" and/or "consequential benefits" should also be directed. 18. Coming back to back wages, even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned in Rudhan Singh and Uday Narain Pandey. Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may. 19. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may. 19. But the cases referred to above, where back wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the Court found that the termination was motivated or amounted to victimisation. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc. 20. But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back wages, etc. will be the same as those applied in the cases of an illegal termination. 21. In this case, the Labour Court found that a charge against the employee in respect of a serious misconduct was proved. It, however, felt that the punishment of dismissal was not warranted and therefore, imposed a lesser punishment of withholding the two annual increments. In such circumstances, award of back wages was neither automatic nor consequential. In fact, back wages was not warranted at all. 38.7 . The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal 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 Benches referred to hereinabove and cannot be treated as good law. In fact, back wages was not warranted at all. 38.7 . The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal 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 Benches 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. 40. The learned Single Judge agreed with the Tribunal that the action taken by the management to terminate the Appellant's service was per se illegal but set aside the award of back wages by making a cryptic observation that she had not proved the factum of non-employment during the intervening period. While doing so, the learned Single Judge not only overlooked the order passed by the Division Bench in Writ Petition No. 8404/2006, but also Rule 33 which prohibits an employee from taking employment elsewhere. Indeed, it was not even the pleaded case of the management that during the period of suspension, the Appellant had left the Headquarter without prior approval of the Chief Executive Officer and thereby disentitling her from getting subsistence allowance or that during the intervening period she was gainfully employed elsewhere. 41. In view of the above discussion, we hold that the learned Single Judge of the High Court committed grave error by interfering with the order passed by the Tribunal for payment of back wages, ignoring that the charges levelled against the Appellant were frivolous and the inquiry was held in gross violation of the rules of natural justice. 42. In the result, the appeal is allowed, the impugned order is set aside and the order passed by the Tribunal is restored. The management shall pay full back wages to the Appellant within four months from the date of receipt of copy of this order failing which it shall have to pay interest at the rate of 9% per annum from the date of the Appellant's suspension till the date of actual reinstatement. It is also made clear that in the event of noncompliance of this order, the management shall make itself liable to be punished under the Contempt of Courts Act, 1971.” 12. It is also made clear that in the event of noncompliance of this order, the management shall make itself liable to be punished under the Contempt of Courts Act, 1971.” 12. Their Lordships of Hon’ble Supreme Court in (2015) 9 SCC 345 , titled as “Raj Kumar Dixit vs. Vijay Kumar Gauri Shanker,” on the question of reinstatement of workman after his retrenchment is declared void ab initio have held as under:- 20. The High Court has exceeded in its jurisdiction in setting aside the Award passed by the Labour Court in awarding reinstatement of the Appellant-workman in his post along with 50% back wages which is erroneous in law as the High Court has not noticed the fact that the appropriate Government has referred the dispute to the Labour Court for its adjudication on the points of dispute referred to it. Since, there was non-compliance of the mandatory requirements as provided under the provisions of the Act by the Respondent-firm at the time of passing an order of termination against the Appellant-workman, therefore, the same has been held to be bad in law and as such it should have awarded full back wages to the workman from the date of termination till the date of passing the Award unless the employer proves that the workman was gainfully employed during the aforesaid period which fact is neither pleaded nor proved before the Labour Court. 21. Therefore, the impugned judgment of the High Court is bad in law as the normal rule to be followed by the Respondent-firm with regard to the termination of the services of the workman has not been done in the present case and further, the High Court has once again exceeded in its supervisory jurisdiction in exercise of its judicial review power Under Article 227 of the Constitution of India by setting aside the Award of reinstatement with 50% back wages passed by the Labour Court and has instead awarded Rs. 2 lakhs as compensation to the Appellant-workman which is contrary to the law laid down by this Court. The High Court cannot exercise its supervisory jurisdiction and act as either original court or appellate court to set aside the finding of fact recorded on the points of dispute referred to the Labour Court on proper appreciation of pleadings and evidence on record in favour of the workman as has been done in the instant case. The High Court cannot exercise its supervisory jurisdiction and act as either original court or appellate court to set aside the finding of fact recorded on the points of dispute referred to the Labour Court on proper appreciation of pleadings and evidence on record in favour of the workman as has been done in the instant case. The Award of compensation of Rs. 2 Lakhs awarded in place of reinstatement with 50% back wages as awarded by the Labour Court has been modified by the High Court without assigning any cogent and valid reason which is not only erroneous in law but suffers from error in law as well, as the same is contrary to the catena of decisions of this Court. On this ground itself, the impugned judgment of the High Court is liable to be set aside and we pass an order to restore the Award passed by the Labour Court. 27. The grounds urged by the Appellant in this case are well founded and we accordingly pass the following order:- 27.1. The Appeal is allowed. The impugned judgment and order passed by the High Court of Judicature at Allahabad in Writ Petition No. 19573 of 2010 dated 02.07.2014 is hereby set aside and the Award passed by the Labour Court in awarding reinstatement with 50% back wages from the date of termination till the date of passing the Award by the Labour Court is restored. 27.2. We further direct the Respondent-firm to pay full back wages to the workman from the date of passing of the Award by the Labour Court till the date of his reinstatement in service. The order shall be complied with by the Respondent-firm within six weeks from the date of receipt of copy of this order. 13. Their Lordships of Hon’ble Supreme Court in (2016) 6 SCC 541 , titled as “Raj Kumar vs. Director of Education and others”, have ordered that retrenchment of the service of the workman was in violation of Section 25(F) (a),(b) & (c) of the Industrial Disputes Act, 1947 and have ordered the reinstatement of the petitioner with full back wages. Their Lordships have held as under:- “57. For the reasons stated supra, we are of the view that the impugned judgment and order dated 28.07.2008 passed by the Delhi High Court is liable to be set aside and accordingly set aside, by allowing this appeal. Their Lordships have held as under:- “57. For the reasons stated supra, we are of the view that the impugned judgment and order dated 28.07.2008 passed by the Delhi High Court is liable to be set aside and accordingly set aside, by allowing this appeal. The retrenchment of the appellant from his service is bad in law. The respondent-Managing Committee is directed to reinstate the appellant at his post. Consequently, the relief of back wages till the date of this order is awarded to the appellant, along with all consequential benefits from the date of termination of his services. The back wages shall be computed on the basis of periodical revision of wages/salary. We further make it clear that the entire amount due to the appellant must be spread over the period between the period of retrenchment and the date of this decision, which amounts to 13 years, for the reason that the appellant is entitled to the benefit under Section 89 of the Income Tax Act. The same must be complied with within six weeks from the date of receipt of the copy of this judgment. 14. Learned Labour Court has rightly ordered the reinstatement of the workman but without back wages. 15. There is no illegality or perversity in the award dated 18.09.2012 passed by the Presiding Officer, Labour Court, Haridwar, in Adjudication Case No.504 of 2009. Accordingly, there is no merit in this petition and the same is hereby dismissed.