JUDGMENT : Chandra Kumar Rai, J. 1. Heard Mr. Prabhakar Tripathi, learned Standing Counsel for the petitioner/ State and Ms. Bushra Maryam, learned counsel assisted by Mr. Baquer Mehdi, learned counsel for respondent no.2. 2. Brief facts of the case are that respondent no.2 raised the industrial dispute which was referred for adjudication vide reference order dated 16. 1.2006 with respect to termination of service of respondent no.2/ workman with effect from 29.9.1998. The aforementioned reference was registered as adjudication case No. 205/ 2006. Respondent no.2/ workman filed his written statement (Paper No. 5-A) stating that he was working on the post of Chowkidar in department of petitioner since 1986 and worked up to 28.9.1998. It was also stated in the written statement that with effect from 29. 9.1998, the service of the petitioner was orally terminated without complying the provisions of Section 6-N of the Uttar Pradesh Industrial Disputes Act, 1947. It was also mentioned in the written statement that respondent no.2 had worked for more than 240 days in a calendar year. Petitioner/ employer had also filed his written statement (Paper No. 9-A) stating that department is a Government department and provisions of Uttar Pradesh Industrial Disputes Act are not applicable. It was also stated in the written statement that respondent no.2/ workman had never been employed in the department and there was no master and servant relationship between them. It was also stated that there was no question of termination of service of respondent no.2 with effect from 29.9.1998 as he never worked in the department. Respondent no.2/ workman filed his reply to the written statement of the petitioner/ employer. Respondent no.1/ Labour Court considering the evidence on record decided the dispute vide award dated 30.10.2015 which was published on 5.4.2016 by which respondent no.2/ workman was reinstated in service and 50% of the backwages was awarded from the date of termination of service till the date of reinstatement. Hence this writ petition on behalf of the petitioner for the following relief:- "Issue a writ, order or direction in the nature of Certiorari quashing the impugned award dated 30.10.2015 published on 05.4.2016 (Annexure No.1 to the writ petition) passed by the Presiding Officer, Labour Court, Meerut (respondent No.1)" 3. Hence this writ petition on behalf of the petitioner for the following relief:- "Issue a writ, order or direction in the nature of Certiorari quashing the impugned award dated 30.10.2015 published on 05.4.2016 (Annexure No.1 to the writ petition) passed by the Presiding Officer, Labour Court, Meerut (respondent No.1)" 3. This Court vide order dated 9.8.2016 entertained the matter and granted interim protection to the effect that effect and operation of the impugned award dated 30.10.2015 shall be kept in abeyance provided petitioner reinstates the respondent no.2 within period of one month from today and continues to pay current wages as per law. On 4.10.2016, this Court granted one month further time to learned counsel for the respondents to file counter affidavit and extended the interim order. 4. In pursuance of the aforementioned order dated 9.8.2016 and 4.10.2016, the parties have exchanged their affidavit. 5. Learned Standing Counsel for the State/ petitioner submitted that respondent no.2 had never worked in the petitioner- department therefore there was no question for retrenchment/ termination of service of respondent no.2. He further submitted that there was no relation of employer and employee between Department and respondent no.2, as such, provisions of the Uttar Pradesh Industrial Disputes Act, 1947 are not applicable in the matter. He further submitted that Madhya Ganga Canal Construction Division and Development is department of State Government and is not an industry, as such, the impugned award is wholly illegal. He further submitted that Labour Court has placed reliance on the document which were filed by workman although the same were not proved by his evidence, as such, the award is illegal. He further submitted that impugned award has been passed in violation of principle of natural justice. He further submitted that Labour Court has shifted the burden of proof upon the petitioner to prove that respondent no.2/ workman is not an employee of the petitioner. He further submitted that no adverse inference can be drawn against the employer on his failure to produce the documents in his possession. He submitted that Labour Court relying on the question of 240 days continousworking has passed the impugned award recording finding that there is violation of Section 6-N of the Industrial Disputes Act which is not in accordance with law. He submitted that Labour Court relying on the question of 240 days continousworking has passed the impugned award recording finding that there is violation of Section 6-N of the Industrial Disputes Act which is not in accordance with law. He further submitted that in any case, the award for 50% of the back wages to the respondent no.2/ workman is against the ratio of law laid down by Hon'ble Apex Court in the case of Assistant Engineer Rajasthan Development Corporation Vs. Geetam Singh 2013 STPL 84 SC. He further submitted that petitioner- Department is a Government Department, as such, the reinstatement of the workman is not proper rather in any case, compensation can be awarded in favour of respondent no.2/ workman. He further placed reliance upon the judgement of Hon'ble Apex Court reported in 2004 (8) SCC 161 Rajasthan State Ganga Nagar as Mills Ltd. Vs. State of Rajasthan and Another in support of his argument. He further placed another judgement of Hon'ble Apex Court dated 26.3.1997 passed in SLP (C) No. 7957 of 1996 Himanshu Kumar Vidhyarthi and Others Vs. State of Bihar and Others in order to demonstrate that department of the Government cannot be treated to be industry when appointment are regulated by the statutory rules. He finally submitted that writ petition be allowed and impugned award be set aside. 6. On the other hand, Ms. Bushra Maryan assisted by Mr. Baquer Mehdi, learned counsel for respondent no.2 submitted that respondent no.2/ workman was working as chowkidar in the petitioner- department since 1986 and worked up to 28.9.1998. She further submitted that Labour Court has rightly decided the dispute reinstating the petitioner in service with 50% of the backwages. She further submitted that petitioner/ Irrigation Department is an industry, as such, there is no illegality in the impugned award. She further submitted that respondent no.2/ workman have filed an application before the Labour Court for summoning certain documents from the petitioner- Department but the same were not produced by the petitioner- Department accordingly Labour Court has rightly drawn the adverse inference against the petitioner- Department. She further submitted that Labour Court has summoned the attendance register and payment register from the petitioner- Department which they failed to produce. She further submitted that Labour Court has summoned the attendance register and payment register from the petitioner- Department which they failed to produce. She submitted that order sheet before the Labour Court was signed by respondent no.2/ workman as well as employer, as such, it cannot be argued that impugned award has been passed in violation of principles of natural justice. She further submitted that Labour Court has no power to review the award passed on merit hence the review application filed by petitioner- Department was not maintainable, as such, the same was rightly rejected by the Labour Court. She submitted that issues framed by Labour Court has rightly been decided in favour of respondent no.2/ workman on the basis of oral and documentary evidences adduced by the respondent no.2/ workman. She placed three compilation the judgement of Hon'ble Apex Court as well as of this Court on the point as to whether the Irrigation Department is an industry or not, as to whether the adverse inference will be withdrawn for non-production of material documents as well as on the point of awarding backwages which are as under:- i). Whether Irrigation department is an industry or not ? 1. The Bangalore Water Supply & Sewerage Board etc. v/s A. Rajappa and others etc. 2. Des Raj and others v/s State of Punjab and others 3. State of U.P., through Executive Engineer, Nichali Ganga Nahar, Phoolpur, Kanpur v/s The Labour Court (II), Uttar Pradesh Kanpur and another 4. State of Uttar Pradesh Through Executive Engineer, Tubewell Division-I, Bareilly v/s Presiding Officer, Labour Court, U.P., Bareilly and another 5. State of Uttar Pradesh Through Principal Secretary, Irrigation, Lucknow and others v/s Labour Court, Gorakhpur, Uttar Pradesh and another 6. Eng.-In-Chief Irrigation Dept., Lucknow and others v/s Shiv Nath" ii). Whether adverse inference will be withdrawn for non-production of documents ? "i). [ (2006) 1 UPLBEC 213 ] R.M. Yellatti v/s The Assistant Executive Engineer ii). (AIR 1953 Sup. Court 225 (Vol. 40 C.N. 54) Hiralal and others v/s Badkulal and others iii) Management of State Bank of India v/s V.M. Mahapurush iv). AIR 1978 Supreme Court 1601 ( Sant Ram v/s Rajinder Lal and others v). [ 2008 (117) FLR 1191 ] Sita Ram and others v/s Motilal Nehru Farmers Training Institute vi). (AIR 1953 Sup. Court 225 (Vol. 40 C.N. 54) Hiralal and others v/s Badkulal and others iii) Management of State Bank of India v/s V.M. Mahapurush iv). AIR 1978 Supreme Court 1601 ( Sant Ram v/s Rajinder Lal and others v). [ 2008 (117) FLR 1191 ] Sita Ram and others v/s Motilal Nehru Farmers Training Institute vi). [ (2000) 4 SCC 245 ] Indian Overseas Bank v/s I.O.B. Staff Canteen Worker’s Union and another" iii) Grant of backwages in the case of reinstatement of workman ? 1. AIR 1979 SC 75 (M/s. Hindustan Tin Works Pvt. Ltd., v/s The Employees of M/s. Hindustan Tin Works Pvt. Ltd. And others ) 2. [ 2010 (124) FLR 700 ] Harjinder Singh v/s Punjab State Warehousing Corporation 3. [ 2013 (139) FLR 541 ] Ddepali Gundu Surwase v/s Kranti Junior Adhyapak and others 4. [ 2014 (142) FLR 20 ] Bhuvanesh Kumar Dwivedi v/s M/s. Hindalco Industries Ltd. 5. [ 2015 (145) FLR 184 ] Mackinon Mackenzie & Company Ltd. v/s Mackinnon Employees’ Union 6. [2019 LawSuit(SC) 1506] Jayantibhai Raojibhai Patel v/s Municipal Council, Narkhed & Ors. 7. [2022 (175) FLR 544] Armed Forces Ex Officers Multi Services Co-Operative Society Ltd. v/s Rashtriya Mazdoor Sangh (Intuc) 7. I have considered the arguments advanced by learned counsel for the parties and perused the records. 8. There is no dispute about the fact that industrial dispute raised by respondent No.2 was referred for adjudication vide order dated 16.1.2006 with respect to termination of service of respondent No.2 w.e.f. 29.9.1998. There is also no dispute about the fact that Labour Court vide impugned award dated 30.10.2015 as published on 5.4.2016 reinstated the respondent No.2 with 50% of the backwages from the date of termination till the date of reinstatement in service. 9. The point of determination which are involved in the writ petition are as follows :- i) Whether irrigation department is Industry or not ? ii) Whether respondent No.2/ workman was appointed on the post of Chowkidar in the petitioner department and worked for more than 240 days in a calendar year ? iii) Whether respondent No.2/workman was in employment anywhere else during the period of termination to the date of reinstatement ? iv) To what relief respondent No.2/Workman will be entitled ? 10. ii) Whether respondent No.2/ workman was appointed on the post of Chowkidar in the petitioner department and worked for more than 240 days in a calendar year ? iii) Whether respondent No.2/workman was in employment anywhere else during the period of termination to the date of reinstatement ? iv) To what relief respondent No.2/Workman will be entitled ? 10. In order to decide the point of determination No. i) as to whether the irrigation department is industry or not, the perusal of ratio of law laid down by the Hon'ble Apex Court as well as by this Court which has been cited by learned counsel for respondent No.2 are relevant. The perusal of paragraph Nos.21, 22, 23, 24 & 25 of the judgment rendered in Engineer-in-Chief Irrigation Department, Lucknow and Others vs. Shiv Nath; 2024 (181) FLR 239 will be relevant which are as under :- "21. Further, Hon'ble the Supreme Court in the case of Des Raj Etc. Vs. State of Punjab and others reported in MANU/SC/0124/1988 : MANU/SC/0124/1988 : AIR 1988 SC had considered the tests laid down in various earlier judgments of the Apex Court itself, culminating in the judgment in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and others, reported in MANU/SC/0257/1978 : MANU/SC/0257/1978 : 1978:INSC:41 : 1978(2) SCC 213 and thereafter had arrived at a conclusion that the Irrigation Department falls within the definition of Industry within the meaning of Section 2(j) of the I.D. Act. It was held that the view taken down in Des Raj's case was the better in point of law and hence it is the view in Des Raj's case which was directed to be followed. Once it was so held and also that the work of the Irrigation Department of the State of Punjab and the material placed before the Supreme Court including the written submissions filed on behalf of the concerned petitioners that the irrigation department of the State of Maharashtra was discharging the same or similar functions as the Irrigation Department of the State of Punjab, it was held that the projects of the Irrigation Department or work connected with that of the State of Maharashtra, on the same tests as applied by the Apex Court in Des Raj's case would fall within the definition of an industry for the purpose of Section 2(j) of the I.D. Act. 22. 22. The Hon'ble Supreme Court in the case of Executive Engineer, State of Karnataka Vs. K. Somasetty had relied upon the case of Union of India Vs. Jai Narain Singh, MANU/SC/1530/1995 : MANU/SC/1530/1995 : (1995) Supp 4 672, to hold that Irrigation Department is not an "Industry". No reasons were ascribed for coming to the said conclusion, as has also observed by the Bombay High Court in the case of Special Land Acquisition Officer Vs. Municipal Corporation, MANU/MH/0304/1988 : MANU/MH/0304/1988 : AIR 1988 Bom 9 and relied upon the case of Des Raj. This Court is in agreement with the said observations on this count and hence hold that the Irrigation Department is an "Industry" within the meaning of Section 2(f) of the Uttar Pradesh Industrial Disputes Act, 1947. 23. It is noticed that undisputedly, the workmen has worked along with petitioner from from 15.07.1986 to 31.12.1991 and according to the muster roll produced by him before the Industrial Tribunal, he had worked for 332 days in 1991. There is no denial of the fact that the provisions of Section 6(N) of Industrial Disputes Act were not complied with by the petitioner inasmuch as neither notice was given to him nor salary in lieu of notice and consequently there was gross violation of provisions of Section 6(N). 24. In view of above discussions, the contention of the State to the effect that Irrigation Department does not fall within the definition of "Industry" or that provisions of Act of 1947 are not applicable, does not have any force and is hereby rejected. Even, the Labour Court, in the impugned award has also given the same interpretation after relying upon the judgments in the case of Des Raj and etc. (supra) and other authorities. I do not find any error in the view taken by Tribunal necessitating interference by this Court under Article 227 of the Constitution of India. 25. The writ petition is bereft of merits and is accordingly dismissed." The Labour Court has also decided this issue holding that Irrigation Department is an industry. Considering the aforementioned facts and circumstances, the point of determination No.1 is answered that Irrigation Department is an industry. 11. 25. The writ petition is bereft of merits and is accordingly dismissed." The Labour Court has also decided this issue holding that Irrigation Department is an industry. Considering the aforementioned facts and circumstances, the point of determination No.1 is answered that Irrigation Department is an industry. 11. In order to consider the point of determination No. ii), the perusal of finding of facts recorded by the Labour Court while passing the impugned award will be relevant which is as under :- The perusal of finding of fact recorded by Labour Court as to whether respondent No.2/workman was appointed in the petitioner department and worked for more than 240 days in Calendar Year is fully proved. Accordingly, point of determination No. ii) is answered in favour of respondent No.2 that he was appointed in the petitioner - department and worked for more than 240 days in a Calendar Year. 12. In order to consider the point of determination No.iii), the perusal of finding of fact recorded by the Labour Court will be also relevant which is as under : - The perusal of the finding recorded by the Labour Court, as quoted above, fully demonstrate that respondent No.2/workman was not in any gainful employment from the date of termination till the date of reinstatement. Accordingly the point of determination No.iii) is answered that respondent No.2/workman was not in any gainful employment during the period of termination of service till the reinstatement. 13. In order to consider the point of determination No.iv), the perusal of finding of facts recorded by the Labour Court on all the issues fully demonstrates that respondent No.2/workman was appointed in the petitioner-department and worked up to 28.9.1998. The perusal of the finding of fact further demonstrate that petitioner-department is Industry and there was relation of employer and employee between the petitioner and respondent No.2/workman who has worked for more than 240 days in the Calendar Year, as such, the services cannot be terminated without compliance of the provisions contained under Uttar Pradesh Industrial Disputes Act. The finding of fact further demonstrates that respondent No.2/workman was not in any gainful employment after termination of his service, as such, the Labour Court has rightly reinstated the petitioner in service and awarded 50% of the backwages from the date of termination till the date of reinstatement of service. The finding of fact further demonstrates that respondent No.2/workman was not in any gainful employment after termination of his service, as such, the Labour Court has rightly reinstated the petitioner in service and awarded 50% of the backwages from the date of termination till the date of reinstatement of service. On the point of awarding the backwages, the ratio of law laid down by Hon'ble Supreme Court in the case of Deepali Gundu Surwase (Supra) as cited by learned counsel for respondent No.2/workman will be relevant for perusal which is as under :- "33. The propositions which can be culled out from the aforementioned judgments are: i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. ii) 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. iii) 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 averments 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. 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. iv) 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. v) 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 victimizing the employee or workman, then the concerned Court or Tribunal 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 be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give 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. vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization 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. vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization 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-a-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. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra). vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) 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. The perusal of another judgment of the Apex Court in the case of Allahabad Bank (Supra) in which the earlier case of the Apex Court in Deepali Gundu Surwase (Supra) was also considered will be relevant which is as under :- "36. Therefore, even applying the ratio laid down in various decisions, we do not think that the employee could be granted anything more than what the High Court has awarded. 37. As we have pointed out at the beginning, the total period of service rendered by the Officer-employee before his dismissal from service, was about 15 years, from 1974 to 1989 and he attained the age of superannuation in February, 2013, meaning thereby that he was out of employment for 24 years. 37. As we have pointed out at the beginning, the total period of service rendered by the Officer-employee before his dismissal from service, was about 15 years, from 1974 to 1989 and he attained the age of superannuation in February, 2013, meaning thereby that he was out of employment for 24 years. The High Court has taken this factor into consideration for limiting the back wages only to 50% and we find that the High Court has actually struck a balance. We do not wish to upset this balance. Therefore, the Special Leave Petition of the Officer-employee is also liable to be dismissed. 38. Accordingly, both the Special Leave Petitions are dismissed, no costs." The point of determination No.iv) is answered accordingly that grant of 50% of the backwages from the date of termination of service till the date of reinstatement is just and proper in the facts and circumstances of the case. 14. Considering the entire facts and circumstances of the case, no interference is required against the impugned award dated 30.10.2015, as published on 5.4.2016, passed by respondent No.1. The writ petition is dismissed and petitioner - department is directed to release the arrears of 50% of the backwages within period of two months from today, otherwise, interest @ 6% per annum will be charged against the petitioner for delayed payment of awarded amount to respondent No.2/workman. The payment which has been made to the respondent no.2/ workman in compliance of interim order dated 14.9.2017 passed in connected Writ C No. 42879 of 2017 shall be adjusted by the authorities while making payment to respondent no.2 under this order. 15. No order as to costs.