The main legal point established is that if the retrenchment is void ab initio, the workman is entitled to reinstatement, and the award of back wages should be based on the facts and circumstances of each case.

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. 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 n