IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 198 of 2005 (M/S) Agron Remedies Pvt. Ltd. Sarverkhera, Moradabad Road, Kashipur, District Udham Singh Nagar ..……… Petitioner Versus Presiding Officer, Industrial Tribunal, Haldwani and another ……… Respondents Mr. R.K. Raizada, the learned counsel for the petitioner. Mr. Amar Nath Sharma, the learned counsel for respondent No.2. Hon’ble Tarun Agarwala, J. With the consent of the learned counsel for the parties, the matter is being heard and decided finally today. The petitioner has assailed the validity and legality of the award by which the Labour Court has directed the reinstatment of the workman with continuity of service and with 50% of the backwages. The facts leading to the filing of the writ petition is, that the respondent-workman was employed as a workman and his services was dispensed with on 16th May 1995. The workman, being aggrieved, raised an industrial dispute which was ultimately referred to the Labour Court by an order dated 13th June, 2000. The terms of the reference order is : “Whether the employer was justified in terminating the services of the workman w.e.f. 16th May1995? If not, to what relief is the workman entitled to?” Before the Labour Court the parties presented their written statement and rejoinder affidavits. The Labour Court, after considering the material evidence on record, found that the action of the employers in dispensing the services of the workman was arbitrary and was not in accordance with the provisions of Section 2 6-N of U.P. Industrial Disputes Act. The Labour Court held that the workman had worked for more than 240 days in a calendar year and that she had worked continuously and, consequently, she was required to be paid retrenchment compensation in accordance with the provision of 6-N of the Act. The Labour Court held that since the retrenchment compensation had not been paid, the order of termination was being in violation of the provision of 6-N of the Act and could not be sustained and accordingly directed reinstatement of the workman. The Labour Court, after considering the matter, also granted 50 percent of the backwages. The petitioner, being aggrieved by the said award, has filed the present writ petition. Heard Shri R.K. Raizada, the learned counsel for the petitioner and Shri Amar Nath, the learned counsel for respondent No.2. The court finds upon a perusal of the affidavits and upon a perusal of the award and the material brought on the record that the award of the Labour Court in so far as it directs the reinstatement does not suffer from any error of law. The Labour Court has considered the material evidence on record and has given a conclusive finding of fact that the workman had worked for more than 240 days in a calendar year and that the workman was not paid retrenchment compensation as provided u/S 6-N of the Act. The learned counsel tried to assail the findings of 240 days but in my opinion, the said finding is based on findings of fact which cannot be interfered in a writ jurisdiction. With regard to the payment of backwages, the Court finds that before the Labour Court, the employer had given offer at the stage of filing the written statement to the workman for reinstatment in service. This fact, even though, it has been noted by the Labour Court in the Award, but no emphasize has not been given to it. The Court finds that inspite of an offer of 3 reinstatement being given by the employer, the workman did not respond nor gave her consent and insisted in fighting out the case. In my view, this offer of the petitioner was sufficient for the Labour Court to deny backwages. In view of the aforesaid, the Court finds that the order of the Labour Court for reinstatment was incorrect. The Supreme Court in a catena of cases has held that backwages should not be granted mechanically where reinstatment is ordered. The Supreme Court in the case of General Manager Haryaya Roadways Vs. Rudhan Singh, JT 2005 (6) SC 137 has held that the Labour Court should not order backwages mechanically and other factors, namely, adhoc appointment, length of service, i.e. whether it was a short term, daily wages or temporary or permanent appointment and whether the workman was in a position to get another employment coupled with the fact that during the intervening period, the workman was gainfully employed or not are the relevant factors for consideration of payment of backwages. All these aspects have not been considered. This Court further finds that an interim order was granted directing reinstatement of the workman. It has been stated at bar that the workman has joined and is working. In view of the aforesaid, the writ petition is partly allowed. The award of the Labour Court in so far as it directs the reinstatment of the workman is affirmed. However, the award of the Labour Court in so far as it directs the payment of backwages is concerned, is set aside. In view of the partial success, the parties shall bear their own cost. (Tarun Agarwala, J.) Dated 20.05.2010 Shiv