JUDGMENT : Saumitra Dayal Singh, J. Civil Misc. Substitution Application No. 6 of 2020 Heard counsel. No objection received. Substitution application is allowed. 2. Let legal representatives of respondent No. 5, as described in paragraph-2 of the application be substituted during the day. Order on petition 3. Heard Sri Shakti Swaroop Nigam learned Senior Counsel assisted by Sri Karshit Nigam learned counsel for the petitioner, Sri Abhishek Mishra learned counsel for respondent No. 4 and legal representatives of respondent No. 5 (since deceased) and learned Standing Counsel for the State. 4. Present writ petition has been filed by the employer against the order dated 18.12.2019 passed by the Presiding Officer, Labour Court, Gautam Budh Nagar in Miscellaneous Case No. 20 of 2018 (Nand Kishore and another v. M/s. Eveready Industries India Ltd.). By that order, overtly passed with reference to powers vested in the Labour Court under Section 33-C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Central Act') that is pari materia to the powers vested in the Labour Court under Section 6-H (2) of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as 'the State Act'), the Labour Court has provided for payment of full wages to the respondent Nos. 4 and 5, from the date of their disengagement i.e. with effect from 9.6.2017 and 9.10.2017, respectively. 5. In short, undisputedly, respondent Nos. 4 and 5 were permanent workmen at the petitioner establishment. At the relevant time, those respondents were posted as Technician/Operators. With respect to a Charter-of-demand, raised by Dheeraj Prasad, Mukesh Kumar, Gopal Mishra, Ramphal Singh (respondent No. 5) since deceased and Nand Kishore (respondent No. 4) objecting to engagement of contractual workmen and to artificially close down the unit at Gautam Budh Nagar, Conciliation Proceeding/Case No. 01 of 2017 was instituted before the Conciliation Officer, Gautam Budh Nagar, on 2.3.2017. On that, notices were issued to the petitioner on 8.3.2017. The petitioner submitted its reply thereto, dated 4.5.2017. Admittedly, while that Conciliation Proceeding/Case became pending, the petitioner chose to dispense with the services of respondent Nos. 4 and 5 with effect from 9.6.2017 and 9.10.2017, respectively, without prior or any permission of the Conciliation Officer. Subsequently, on 13.3.2020, the petitioner sought ex post facto permission of the Conciliation Officer. That was rejected by order dated 17.1.2022. Admittedly, while that Conciliation Proceeding/Case became pending, the petitioner chose to dispense with the services of respondent Nos. 4 and 5 with effect from 9.6.2017 and 9.10.2017, respectively, without prior or any permission of the Conciliation Officer. Subsequently, on 13.3.2020, the petitioner sought ex post facto permission of the Conciliation Officer. That was rejected by order dated 17.1.2022. It is engaging the attention of the Court in another writ petition being Writ-C No. 7304 of 2022 (to be decided by a separate order of date). It is the petitioner's case that disciplinary proceedings initiated against the respondents-workmen were pending from before and that those proceedings were concluded in accordance with law, after due notice and enquiry. Also, it has been asserted, the Conciliation Case did not arise at the instance of any Union. The respondents-workmen were not 'protected workmen'. 6. Learned Senior Counsel for the petitioner submits, in the first place the Labour Court had no jurisdiction to entertain the application filed with reference to Section 33-C of the Central Act. Sections 33-C of the Central Act and 6-H of the State Act do not contemplate such proceedings. Second, the only remedy available to the workman in such situation, if at all, was to seek a reference under Section 4-K of the State Act. Such reference has been made, vide order dated 21.6.2018 (in the case of respondent No. 4). Third, there was no adjudication proceeding pending before the Industrial Tribunal or the Labour Court and qua the proceedings claimed pending in Conciliation Case No. 01 of 2017 before the Conciliation Officer, remedy was not available to the respondent under Section 6-F of the State Act. Thus, inherent lack of jurisdiction and illegality has been set up. 7. On the other hand, learned counsel for the respondents-workmen would submit that the petitioner has acted in complete defiance of law. Since, no prior permission was sought - of the Conciliation Officer, before dispensing with the services of respondent Nos. 4 and 5, the Labour Court has not erred in allowing for payment of due wages. He has relied on Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma and others, 2002(92) FLR 667 . 8. Since, no prior permission was sought - of the Conciliation Officer, before dispensing with the services of respondent Nos. 4 and 5, the Labour Court has not erred in allowing for payment of due wages. He has relied on Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma and others, 2002(92) FLR 667 . 8. Having heard learned counsel for parties and having perused the record, in the first place, if the relief granted by the Labour Court may have been claimed under Section 6-H of the State Act, the fact that such application was moved by the respondents-workmen with description of Section 33-C of the Central Act, may not have led to the conclusion of inherent lack of jurisdiction. Undeniably, it is a commonly known fact, the Labour Court, Gautam Budh Nagar is a Labour Court constituted by the State Government. It had jurisdiction, both under Section 6-H of the State Act and 33-C of the Central Act. Provisions of Section 6H of the State Act and 33C of the Central Act are pari materia. Therefore, mere wrong description of Section on the application made by the respondents-workmen, was inconsequential. It would not dissolve the jurisdiction of the Labour Court, that may have otherwise existed. 9. Then, Section 6-E of the State Act reads as below: ''6E. Conditions of service, etc. to remain unchanged in certain circumstances during the pendency of proceedings.-(1) During the pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before a Labour Court or Tribunal in respect of an industrial dispute, no employer shall - (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding, or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise any workman concerned in such dispute save with the express permission in writing of the authority before which the proceeding is pending. (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute,- (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding, or (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. (3) Notwithstanding anything contained in sub-section (2) no employer shall during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute, - (a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceeding, or (b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. Explanation.-For the purposes of this sub-section, a 'protected workman' in relation to an establishment, means a workman who, being an officer of a registered trade union connected with the establishment, is recognized as such in accordance with rules made in this behalf. (4) In every establishment, the number of workmen to be recognized as protected workmen for the purposes of sub-section (3) shall not exceed one per cent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the State Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which they may be chosen and recognized as protected workmen. (5) Where an employer makes an application to a Board, Labour Court or Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, as expeditiously as possible, such order in relation thereto as it deems fit.'' 10. Thus, Section 6-E of the State Act creates a substantive right in favour of a workman in a dispute situation with his employer, both at the stage of conciliation and upon reference made to a Labour Court or Tribunal. First, it creates a specific substantive right in favour of the affected workman regarding any matter connected to the dispute (already under conciliation or adjudication). It protects him from being visited with other adverse circumstances, orders etc. as may affect his conditions of service or impose punishment, except with prior, written, and express permission of the Conciliation Officer or Labour Court or Tribunal, as the case may be. Second, it creates a substantive right in favour of such a workman regarding any matter not connected with the dispute (already under conciliation or adjudication). It provides limited protection of one-month wages and requirement/check of ex post facto approval of such action by the Conciliation Officer or Labour Court or Tribunal, as the case may be. Third, it grants general protection to the 'protected workmen' being the officers of a registered trade union, connected with the establishment where such industrial dispute may have arisen or be perceived. Again, any alteration of conditions of service or disciplinary action may be taken, against such 'protected workmen', only against an express written permission granted by the Conciliation Officer or Labour Court or Tribunal, as the case may be. Similar protection exists under Section 33-A of the Central Act. 11. As to remedy provision, Section 6-F of the State Act reads as below : ''6F. Special provision for adjudication as to whether the conditions of service, etc. Similar protection exists under Section 33-A of the Central Act. 11. As to remedy provision, Section 6-F of the State Act reads as below : ''6F. Special provision for adjudication as to whether the conditions of service, etc. changed during the pendency of proceedings.-Where an employer contravenes the provisions of Section 6-E during the pendency of proceedings before a Labour Court or Tribunal, any workman aggrieved by such contravention may make a complaint in writing in the prescribed manner, to the Labour Court or Tribunal as the case may be, and on receipt of such complaint that Labour Court or Tribunal as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with this Act and shall submit its award to the State Government and the provisions of this Act shall apply accordingly.'' 12. Clearly, the legislature has provided for a special remedy to the Labour Court or the Tribunal, in the event of violation of the rights vested under Section 6-E of the State Act, in a situation and circumstances where an adjudication proceeding is pending before that Labour Court or Tribunal. That remedy is of a complaint to the Labour Court or Tribunal, itself. Once lodged, it may be dealt with as a reference proceeding. Therefore, in the context of a pre-existing adjudication case, violation of Section 6-E of the State Act, Section 6-F of that Act provides for a remedy before a Labour Court or Tribunal, on a simple complaint made by the respondent workman. 13. Conversely, a Conciliation Officer may never entertain a complaint with respect to violation of Section 6-E of the State Act, alleged with respect to a Conciliation Proceeding pending before him. Similarly, no complaint may be entertained by a Labour Court or Tribunal with respect to that proceeding. Apparently, the State legislature has departed from the statutory scheme of the Central Act, in that regard. The question-whether the provision of Section 33-A of the Central Act (that creates such remedy) applies, is not required to be examined in this case, since no complaint ever came to be made by the respondents-workmen, before the Conciliation Officer. 14. Apparently, the State legislature has departed from the statutory scheme of the Central Act, in that regard. The question-whether the provision of Section 33-A of the Central Act (that creates such remedy) applies, is not required to be examined in this case, since no complaint ever came to be made by the respondents-workmen, before the Conciliation Officer. 14. Therefore, in face of specific remedies provided by law, in certain circumstances only, the provision of Section 6-H (2) of the State Act may not be of any avail to the respondents-workmen claiming violation of Section 6-E of the State Act, as that remedy is contemplated for different situations to realise pecuniary benefits by way of pre-determined or pre-existing rights. Consequentially, it may be recognised, looked at in a pure legal sense, the Labour Court may not have been right in proceeding to pass the impugned order. However, before consequential relief may be granted, a question does arise whether the ends of justice would be met or defeated in setting aside such an order. 15. The instant proceedings before the Court are not of statutory appeal. The petitioner has approached the Court under its extraordinary, equitable and discretionary jurisdiction, under Article 226 of the Constitution of India. 16. Thus, it is seen, the right under Section 6-E of the State Act vested in the respondents-workmen on its own, upon creation of the operating circumstance namely, pendency of Conciliation Case No. 1 of 2017. It arose before the removal from service, of the respondents-workmen w.e.f. 9.6.2017 and 9.10.2017, respectively. That substantive right vested in the respondents-workmen under Section 6-E(2)(b) of the State Act. In the context of the discussion made above and in absence of prior, express, written permission sought by or granted to the petitioner, the orders dated 9.6.2017 and 9.10.2017 dispensing with the services of the respondents-workmen are orders awarding punishment. They constituted a blatant violation of Section 6-E (2)(b) of the State Act. 17. Though, the decision referred to by learned counsel for the workmen in Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. (supra), arose in the context of Central Act, at the same time, the principle applies. The substantive rights granted under Section 6-E of the State Act are like those granted under Section 33(2)(b) of the Central Act. 18. 17. Though, the decision referred to by learned counsel for the workmen in Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. (supra), arose in the context of Central Act, at the same time, the principle applies. The substantive rights granted under Section 6-E of the State Act are like those granted under Section 33(2)(b) of the Central Act. 18. The difference under the Central Act and the State Act is only with respect to corresponding remedies that may arise in the context of alleged violation occurring during pendency of Conciliation Proceedings. While the Central Act protects the workmen and grants remedy, in that situation also, the State Act does not provide for a specific remedy in that case. It only contemplates general remedy of reference under Section 4-K of the State Act. Yet, it cannot be denied, substantive rights were vested in the respondents-workmen under Section 6-E of the State Act. They were mandatory. Only for their enforcement, a reference was required to be made. To that extent, the Labour Court was not a forum of no possible jurisdiction. 19. Since, substantive rights are clearly seen to exist in law and vested in the respondents-workmen, it is now to be seen, how far that may influence the exercise of equitable jurisdiction under Article 226 of the Constitution of India, owing to procedural inadequacies in the law and in the conduct of parties. In M.P. Mathur v. DTC, (2006) 13 SCC 706, the Supreme Court had the occasion to consider four meanings given to equity. It observed: ''14. The present suit is based on equity. The term ''equity'' has four different meanings, according to the context in which it is used. Usually it means ''an equitable interest in property''. Sometimes, it means ''a mere equity'', which is a procedural right ancillary to some right of property, for example, an equitable right to have a conveyance rectified. Thirdly, it may mean ''floating equity'', a term which may be used to describe the interest of a beneficiary under a will. Fourthly, ''the right to obtain an injunction or other equitable remedy''. In the present case, the plaintiffs have sought a remedy which is discretionary. They have instituted the suit under Section 34 of the 1963 Act. The discretion which the Court has to exercise is a judicial discretion. That discretion has to be exercised on well-settled principles. Fourthly, ''the right to obtain an injunction or other equitable remedy''. In the present case, the plaintiffs have sought a remedy which is discretionary. They have instituted the suit under Section 34 of the 1963 Act. The discretion which the Court has to exercise is a judicial discretion. That discretion has to be exercised on well-settled principles. Therefore, the Court has to consider-the nature of obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of the parties and the effect of the Court granting the decree. In such cases, the Court has to look at the contract. The Court has to ascertain whether there exists an element of mutuality in the contract. If there is absence of mutuality the Court will not exercise discretion in favour of the plaintiffs. Even if, want of mutuality is regarded as discretionary and not as an absolute bar to specific performance, the Court has to consider the entire conduct of the parties in relation to the subject-matter and in case of any disqualifying circumstances the Court will not grant the relief prayed for (Snell's Equity, 31st Edn., p. 366).....................'' 20. Looked in that light, before interference is offered in equity jurisdiction, there must be seen to pre-exist, bona fide action or defence on part of the petitioner. That is lacking in entirety. The undisputed rather admitted conduct of the petitioner is in defiance of the law and unfair to the respondents-workmen. Crucially, it is brazen towards the Court. The petitioner did not deny existence of the Conciliation Board proceedings in Case No. 01 of 2017. In fact, it admits knowledge of the same before it proceeded against the respondents-workmen. It also did not apply for permission from the Conciliation Officer before proceeding to dispense with the services of respondent Nos. 4 and 5 with effect from 9.6.2017 and 9.10.2017 respectively. In fact, the petitioner chose to apply for ex post facto permission three years thereafter, in the year 2020. That appears to be an afterthought. 21. In exercise of powers of judicial review, the Court does not have any positive powers like those vested in the Supreme Court - to do complete justice. However, it is a well-settled principle - jurisdiction under Article 226 of the Constitution is both extraordinary and discretionary besides being equitable. That appears to be an afterthought. 21. In exercise of powers of judicial review, the Court does not have any positive powers like those vested in the Supreme Court - to do complete justice. However, it is a well-settled principle - jurisdiction under Article 226 of the Constitution is both extraordinary and discretionary besides being equitable. It may not be readily invoked by a litigant, and it may not be mechanically exercised by the Court, at every illegality shown to exist. To that extent, it may be the negative expression of the thought contained in Article 142 of the Constitution of India. 22. Justice is the ever-constant North Star that may always correctly guide Courts to reach the harbour of just end to a trial. In a piquant situation such as this, a judge may not allow the boat of dispute, to drift far from the correct course, though the otherwise reliable compass of statutory law may appear to commend another course. Allowing that thought to dictate the end of this litigation, though technically the petitioner has made out a case, in law, at the same time, to accept that plea and to allow the petition to succeed would be to defeat the ends of justice, by an act of Court. That may never be done. 23. In Roshanlal Kuthalia v. R.B. Mohan Singh Oberoi, (1975) 4 SCC 628 , Justice Krishna Iyer, in his inimitable style not only negated the argument advanced against applicability of equity principles as anti-law but defined it as a moral dimension of law. He observed: ''29. Shri Sen's strenuous submission summed up fairly is that undefined rules of equity are unruly horses and in India legal rights cannot be chased out by nebulous notions of good conscience labelled equity. In a sense, he is right but to deny equitable jurisdiction for Courts to promote justice is too late and too tall a jurisprudential proposition in any system. For, equity is not anti-law but a moral dimension of law - rather, it is the grace and conscience of living law acting only interstitially. The quintessence of this concept may be stated thus: ''All great systems of jurisprudence have a mitigating principle or set of principles, by the application of which substantial justice may be attained in particular cases wherein the prescribed or customary forms of ordinary law seem to be inadequate. The quintessence of this concept may be stated thus: ''All great systems of jurisprudence have a mitigating principle or set of principles, by the application of which substantial justice may be attained in particular cases wherein the prescribed or customary forms of ordinary law seem to be inadequate. From the point of view of general jurisprudence, 'equity' is the name which is given to this feature or aspect of law in general.'' [American Jurisprudence, 2nd Edn., Vol. 27, p. 516] Certainly when law speaks in positive terms, equity may not be invoked against it; but while applying the law the Court can and must ameliorate unwitting rigours inflicted by legalisms, where there is room for play, by the use of equity. After all, equity is the humanist weapon in the Courts armoury, whereby broad justice may be harmonised with harsh law, based, of course, on established principles. In the present case, certain sympathetic circumstances stand out indubitably and the benign interference sought by the appellant is spelt out of these facts. What are they? 24. A workman who was protected by statute that too by a mandatory provision of Section 6-E of the State Act cannot be allowed to suffer its blatant violation, on such technical success that the petitioner claims entitled to. Therefore, on equity considerations, I am not inclined to exercise the extraordinary and discretionary jurisdiction of the Court, to set aside the impugned order and reduce the respondents-workmen to absolute penury, in face of brazen defiance of law offered by the petitioner. Practically, the petitioner has taken the law in its own hands. It is therefore found not entitled to equitable relief. Thus, there does not appear any conflict between the substantive law that exists in favour of the respondents-workmen and application of equity principle, to ignore the procedural lapse. Thus, the principle ''dura lex sed lex'' also does not operate in favour of the petitioner, in face of substantive rights found vested in the respondents-workmen. 25. Upon query made by the Court, learned Senior Counsel for the petitioner has made a categorical statement that the petitioner is not willing and/or in a position to take back respondent No. 4 to work. That issue may arise in pending Adjudication case proceedings. Respondent No. 5 has already died. 25. Upon query made by the Court, learned Senior Counsel for the petitioner has made a categorical statement that the petitioner is not willing and/or in a position to take back respondent No. 4 to work. That issue may arise in pending Adjudication case proceedings. Respondent No. 5 has already died. At the same time, award of full back-wages during pendency of the industrial dispute may be excessive considering the other available principle of 'no work, no pay' and the stage being premature to judge lack of gainful employment. Accordingly, for the purpose of execution, the impugned order 18.12.2019 is modified to the extent - respondents shall remain entitled to 75% back-wages from the date of their discharge from service till 21.6.2018, where the industrial dispute was referred to adjudication. Beyond that, interference claimed under Article 226 of the Constitution of India, is declined. The connected writ petition would also stand decided on these terms. Accordingly, the writ petition is disposed of.