THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.29972 of 1998 Date: 30.1.2008 Between : Executive Engineer, O&M Division, SRSP Nizamabad. …..Petitioner And Y. Mallaiah and anoher. …… Respondents THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.29972 of 1998 ORDER: Aggrieved by the Award of the Labour Court-II, Hyderabad, in I.D. No.555 of 1992 (old I.D. No. 31 of 1992), dated 27.2.1997, the present writ petition is filed. The first respondent-workman filed a petition under Section 2(A)(2) of the Industrial Disputes Act,1947 before the Labour Court-II, Hyderabad to have the order of termination passed against him set aside and that he be reinstated into service with all attendant benefits. The first respondent-workman contended that he was appointed as an N.M.R. on 15.3.1981, that he had continuously worked for more than five years without any break and that failure on the part of the petitioner herein to comply with the requirements of Section 25F,G and H of the Industrial Disputes Act rendered his termination illegal. Before the Labour Court, the 1st respondent examined himself as W.W.1 and marked Ex.W1, xerox copy of the Service Certificate issued by the Section Officer. On behalf of the petitioner, no oral or documentary evidence was adduced. The Labour Court took note of the contentions urged on behalf of the 1st respondent’s counsel that the 1st respondent was appointed as N.M.R. on 15.3.1981 and that he worked upto 31.10.1987, for a period of more than five years. The Labour Court observed that since there was no oral or documentary evidence placed on behalf of the petitioner, it found that there was considerable force in the contention of the 1st respondent’s counsel that the objection of the petitioner was unsustainable. The Labour Court held that the impugned termination order was in violation of Section 25-F of the Industrial Disputes Act. While directing reinstatement of the 1st respondent with all attendant benefits, including continuity of service, the Labour Court awarded 50% back wages from the date of the petition till the date of reinstatement. Learned Government Pleader for Irrigation would seek to question the said Award and contend that the Labour Court ought not to have relied on Ex.W1, which is a xerox copy of the Service Certificate, and that the Section Officer had no authority to issue such a Certificate. She would also rely on the judgment of this Court in General Manager, Vijaya Bank vs. Pramod Kumar Gupta[1] and J.K. Synthetics Ltd., vs. K.P. Agarwal[2], to contend that the Labour Court is required to examine several factors before deciding as to whether back wages can be granted or not. She would also rely on an order of this Court, in W.P. No. 15246 of 1998 dated 9.7.2007, to contend that the onus is on the workman to show that he had completed 240 days of service in the 12 months period preceding the date of his termination and, in the absence of the onus being discharged, the Labour Court ought not to have directed reinstatement of the 1st respondent with 50% back wages. It cannot be lost sight of that the petitioner has not chosen to adduce any evidence before the Labour Court, either oral or documentary. It is no doubt true that the onus is on the workman to establish that he had completed 240 days of service in the 12 months period preceding the date of his termination. In the present case, the 1st respondent-workman has not only examined himself as W.W.1, but has also marked the xerox copy of the Service Certificate issued by the Section Officer. In the absence of any evidence being let in by the petitioner that the Section officer had no authority to issue such a Certificate, the contention now urged across the bar does not merit acceptance. It is no doubt true that in Pramod Kumar Gupta[3] and J.K. Synthetics Limited[4] the Supreme Court held that several factors are required to be taken into consideration before back wages are awarded. It must, however, be borne in mind that in the present case the Labour Court has not awarded back wages from the date of termination but has restricted back wages to 50%, that too only from the date on which the petition was filed till the date of reinstatement of the workman. One other important factor which would justify this Court exercising restraint, and in refusing to interfere with the Award of the Labour Court, is the failure on the part of the petitioner herein to comply with the statutory prescription of payment of last drawn wages as required under Section 17-B of the Industrial Disputes Act. This Court, by order in W.V.M.P No. 3058 of 1999 dated 9.11.1999, directed the petitioner herein to deposit the entire back wages within eight weeks as also to continue to pay the wages last drawn by the workman. It further directed that, on such deposit of back wages being made by the petitioner, the 1st respondent-workman would be at liberty to withdraw half by furnishing security and the other half without furnishing security. Sri B.G. Ravinder Reddy, learned counsel for the 1st respondent- workman would contend that the petitioner had not complied with the requirements of both Section 17-B of the Act and the order of this Court dated 9.11.1999 in continuing to pay wages last drawn. The Award of the Labour Court in the present case is dated 27.2.1997 and the present writ petition was filed on 1.9.1998. For the past nearly a decade the petitioner herein had failed to pay the workman wages last drawn by him despite the statutory mandate under Section 17-B of the Industrial Disputes Act and the interim order of this Court in W.V.M.P. No.3058 of 1999 dated 9.11.1999. Jurisdiction under Article 226 of the Constitution of India is not to be exercised as a matter of course, but is discretionary and is required to be exercised only in larger public interest. The statutory prescription under Section 17-B of the Industrial Disputes Act is of payment of wages last drawn is meant to ensure that the workman is provided enough means of survival during the pendency of writ petition before the High Court. Since the petitioner has failed to comply with the statutory mandate of paying the workman the wages last drawn, and in failing to comply with the order of this Court dated 9.11.1999, it is but appropriate that this Court exercises restraint and not exercise its discretion to interfere with the Award of the Labour Court. The writ petition fails and is, accordingly, dismissed. No costs. __________________________ RAMESH RANGANATHAN,J DATE: 30th January, 2008 pnb [1] 2006(7) SCC 379 [2] 2007(2) SCC 433 [3] 2006(7) SCC 379 [4] 2007(2) SCC 433