ORDER : ( ANANT RAMANATH HEGDE, J. ) In terms of the impugned order dated 05.03.2016, Application No.29/2015 filed under Section 33C (2) of the Industrial Disputes Act, 1947 (for short 'the Act, 1947') before the Presiding Officer, II Additional Labour Court, Bengaluru (for short 'Labour Court'), came to be rejected. 2. The petitioner, who is the employee claimed Rs.49,25,122/- with 12% interest from the due date till the date of payment. 3. The respondent-Management opposed the said application on the premise that the Division Bench of this Court in W.A.No.379/2010 connected with W.A.No.2457/ 2010 has held that the petitioner-employee is not entitled to back wages. The application under Section 33C (2) of the Act, 1947, is essentially filed claiming back wages and it is denied by the Division Bench of this Court and prayed for dismissal of the application. 4. The Labour Court, after considering the materials on record and evidence led by the parties, rejected the claim for payment of Rs.49,25,122/- under Section 33C (2) of the Act, 1947. Aggrieved by the said order, the petitioner- employee is before this Court. 5. Learned counsel for the petitioner by taking through the facts of the case, would submit that earlier, the petitioner had approached the Labour Court challenging the order of termination from services in I.D. No.98/1993. The Labour Court in terms of the award dated 29.09.2005, has allowed the said I.D. No.98/1993 in part and the order of penalty of dismissal dated 20.08.1993 imposed by the respondent was set-aside and directed the petitioner to be reinstated to his original post together with continuity of service and all other consequential benefits, and back wages to be adjusted as per the order dated 05.05.1995 (Interim Order). 6. The aforesaid said award was assailed before this Court in W.P.No.13097/2006 by the respondent- Management. The petitioner has also assailed the said award to the extent of rejection of 25% back-wages in W.P.No.10409/2008. The writ petitions came to be rejected by a common order dated 16.11.2009. 7. Aggrieved by the said orders, two writ appeals were filed namely, W.A.No.379/2010 by the Management assailing the order of the learned Single Judge in W.P.No.13097/2006 and W.A.No.2457/2010 by the employee assailing the order of the learned Single Judge in W.P.No.10409/2008. 8. W.A.No.379/2010 was allowed in part and W.A.No.2457/2010 was dismissed. The operative portion of the order in the writ appeals reads as under: "1. 8. W.A.No.379/2010 was allowed in part and W.A.No.2457/2010 was dismissed. The operative portion of the order in the writ appeals reads as under: "1. W.A.No.2457/2010 is dismissed. 2. W.A.No.379/2010 is partly allowed imposing punishment of with holding of two increments cumulatively." 9. It appears that the respondent-Management entertained doubt about the implications of the order passed in the Writ Appeals. Hence, an application was filed in I.A.No.1/2013 seeking clarification of the final order dated 23.11.2010. The Division Bench of this Court on 13.03.2013 passed an order on the said application seeking clarification of the order dated 23.11.2010, which reads as under: "ORDER ON IA No.1/2013 This application is filed for clarification of the order dated 23.11.2010. By the said order, this Court partly allowed the writ appeal filed by the Management and punishment of withholding two increments cumulatively was imposed. It was made clear in the order that the workman is not entitled to back wages on the principle of no work no pay. Therefore, all that the workman is entitled to is reinstatement and all consequential benefits excluding back wages subject to withholding two increments cumulatively. Ordered accordingly." 10. This Court, on the previous hearing date directed the Registry to place the copy of the application i.e. I.A.No.1/2013. Registry has put up a note that the records have been destroyed, as the application was more than ten (10) years old. 11. Learned counsel for the petitioner has made the available the copy of application in I.A.No.1/2013, contents of which are not disputed by the learned counsel for respondent. 12. Learned counsel for the petitioner would submit that the Labour Court committed an error in rejecting the application under Section 33C (2) of the Act, 1947, despite the benefits relating to back wages is confirmed by the Division Bench of this Court. He would submit that the Labour Court erroneously interpreted the order of the Division Bench of this Court to hold that the back wages are denied applying the principle of 'no work no pay'. It is his submission that the back wages are denied only during the pendency of disciplinary proceedings and back wages are to be granted from the date when the petitioner raised dispute before the Labour Court till the date of reinstatement. 13. It is his submission that the back wages are denied only during the pendency of disciplinary proceedings and back wages are to be granted from the date when the petitioner raised dispute before the Labour Court till the date of reinstatement. 13. Learned counsel for the respondent on the other hand would submit that the Writ Appeal filed by the Management was allowed in part and the back wages granted by the Labour Court was denied applying the principle of 'no work no pay' by referring to the judgment of the Hon’ble Supreme Court in the case of J.K.Synthetics Ltd., Vs K.P.Agarwal , [ (2007) 2 SCC 433 ] . It is his submission that after disposal of the Writ Petition when the writ appeal was filed, the Management had the benefit of interim order of stay, wherein the operation of award passed by the Labour Court was stayed and even during the pendency of Writ Petition, the petitioner-Management had the benefit of interim order, wherein operation of the award passed by the Labour Court was stayed. 14. It is further submitted that during the pendency of writ petitions as well as writ appeals, an application under Section 17B of the Act, 1947, was filed by the workman and the same was allowed and whatever wages payable under Section 17B was paid by the Management. 15. Referring to the clarificatory order passed by the Division Bench of this Court, it is urged that the back wages is denied by applying the principle of 'no work no pay' and the employee did not work from the date of dismissal till the date of reinstatement on 13.01.2011. Thus, it is urged that the petitioner is not entitled to any back wages as the same was denied by the Division Bench of this Court and the Labour Court is justified in rejecting the application seeking back wages. 16. Learned counsel for the respondent to substantiate his contention that when the writ petitions as well as writ appeals were pending before this Court, the petitioner is not entitled to back wages would refer to the judgment of Hon’ble Apex Court in the case of State of Gujarat And Others vs. Dilipbhai Shaligram Patil , [ (2006) 8 SCC 72 ] 17. This Court has considered the contentions raised at the Bar and perused the records. 18. This Court has considered the contentions raised at the Bar and perused the records. 18. There is no dispute that the penalty imposed by the Disciplinary Authority was interfered by the Labour Court and the Labour Court has modified the penalty and directed the reinstatement. The operative portion of the award passed by the Labour Court reads as under: "The dispute raised by the first party workman under Sec.10(4-A) of the ID Act, 1947 is allowed in part and the impugned order of dismissal dated 20th August 1993 is hereby set aside and the second party management is hereby directed to reinstate the first party workman into his original post forth with together with continuity of service and all other consequential benefits with backwages already paid as per order dated 5.5.1995 passed by this court on the application filed by the first party for interim relief. Further, the second party management is directed to treat the period of suspension of the first party as leave at his credit and if no leave is available at his credit the same shall be treated as leave without allowance. In the circumstances of the case, the parties to bear their own cost." 19. From the above said award, it is noticed that the interim order passed by the Labour Court on 05.05.1995 is treated as 75% back wages payable to the petitioner- employee. The Division Bench of this Court while allowing the writ appeal has concluded that "the Labour Court misdirected itself in thinking denial of back wages itself would constitute a punishment and for proof of misconduct that would be a punishment proportionate to the misconduct established". Having observed this, the Division Bench of this Court further held that "Therefore to that extent, order of the Labour Court suffers from infirmity which requires to be set aside. Even learned Single Judge has not thought this aspect from a proper perspective and erred in upholding the order of the Labour Court." 20. In paragraph No.9, the Division Bench of this Court has held as under: "9. Therefore the question for our consideration is once misconduct is proved and Labour Court exercised power under Section 11(A) of the Act and directs reinstatement and reinstatement being a lesser punishment, what is the punishment to be imposed to the proved misconduct. We are told that the workmen has to retire in two years. Therefore the question for our consideration is once misconduct is proved and Labour Court exercised power under Section 11(A) of the Act and directs reinstatement and reinstatement being a lesser punishment, what is the punishment to be imposed to the proved misconduct. We are told that the workmen has to retire in two years. He is not entitled to back wages on the principle of "No work no pay". The misconduct now that is held to be established is insubordination, rude behaviour with the official superior. It is not a case, which can be lightly ignored. xxxxxxxxxx" 21. It is relevant to note that the Division Bench of this Court has also partly allowed the appeal and imposed the punishment of withholding of two increments with cumulative effect. On this order, a clarification is sought and the clarificatory order, as already noticed, would again reiterate the fact that workman is not entitled to back wages on the principle of 'no work no pay' and further, it is held that therefore, all that the workman is entitled to is reinstatement and all consequential benefits excluding the back wages subject to withholding two increments cumulatively. 22. After having gone through the aforementioned order in the writ appeal as well as on the application seeking clarification, this Court is of the opinion that the Division Bench has taken a view that the petitioner is not entitled to back wages that was granted to him during the pendency of proceedings before the Labour Court. The order dated 05.05.1995 granting 75% wages as interim relief is treated as back wages by the Labour Court. The Division Bench of this Court has held that it is impermissible given the fact that the misconduct against the petitioner is established, and petitioner is not entitled to wages for the period where he has not worked. 23. The clarificatory order would also indicate the same. Though the application filed by the respondent- Management would give an impression that back wages are denied in its entirety till disposal of the proceedings before this Court in writ appeal, what is required to be considered is implications of order passed by the Division Bench of this Court in the aforementioned Writ Appeal, both in the final order as well as in the order seeking clarification. 24. 24. Having gone through the said order, this Court is of the view that the back wages was denied to the employee for the period during proceedings was pending before the Labour Court. It is more so for the simple reason because this Court while hearing the Writ Appeal was considering the contention whether backwages are to be granted given the fact that the charges were proved as the Labour Court had directed to reinstate the employee and had granted 75% backwages by treating interim order granted during the pendency of the proceeding before it directing 75% wages as the backwages. Whether during the pendency of the writ appeals or earlier writ petitions the workman was to be granted backwages or not was not the question before this Court and there cannot be any order to that effect. 25. No doubt, there was an interim order staying operation of the award because of which the petitioner- employee was not entitled to seek reinstatement and the respondent-Management could not extract work from employee and that order of stay cannot be interpreted to say that the employee is not entitled to back wages from the date of award passed by the Labour Court till the date of order passed by this Court in the Writ Appeal on the principle of ‘no pay no work’. The final order which is in favour of the petitioner in so far as claim for reinstament, should be interpreted to hold that the petitioner should be treated to have been in employment from the date of award passed by the Labour Court. 26. The ratio in paragraph No.5 of the judgment of the Apex Court in State of Gujarat supra does not come to the aid of the respondent. On the other hand, it does come to the aid of the petitioner as this Court is of the view that the order of reinstatement awarded by the Labour Court is confirmed and to that extent, the petitioner has succeeded and respondent-Management has failed in the Writ Appeal to the said extent. The Writ Appeal is allowed only to the extent saying that the petitioner is not entitled to two increments with cumulative effect. 27. The Writ Appeal is allowed only to the extent saying that the petitioner is not entitled to two increments with cumulative effect. 27. This being the proposition of law, this Court is of the view that the petitioner is entitled to back wages from the date of award passed by the Labour Court till the date of reinstatement i.e., from 29.09.2005 to 13.01.2011. 28. Having said this, it is also required to be noticed that some of the amount is paid to the petitioner pursuant to the order dated 05.05.1995 and thereafter, under Section 17B of the Act, 1947, the amount is said to have been paid to the petitioner. While calculating the back wages payable for the period from 29.09.2005 to 13.01.2011, the amount paid pursuant to the order dated 05.05.1995 as well as pursuant to the order under Section 17B of the Act, 1947, the application dated 08.11.2006 before this Court have to be excluded. 29. For the reasons recorded above, the impugned order has to be set aside and the matter requires to be remitted to the Labour Court for fresh consideration keeping in mind the finding recorded above. 30. Hence, the following: ORDER i) The Writ Petition is allowed-in-part ii) The impugned order dated 05.03.2016 passed by the Labour Court in Application No.29/2015 is set aside; iii) The matter is remitted to the Labour Court for fresh adjudication relating the petitioner's entitlement relating to back wages from 29.09.2005 to 13.01.2011; iv) It is made clear that while adjudicating on the said claim, the amount already paid has to be excluded as per the order dated 05.05.1995 before the Labour Court and as per the order dated 08.11.2006 under Section 17B of the Act, 1947; v) The Labour Court shall endeavour to dispose of the application as expeditiously as possible as the dispute is pending between the parties since 1993 and both parties shall cooperate for the early disposal; vi) No order as to costs.