S.S. Sudhalkar, J. - (1.) (Oral) - - This writ petition is filed by the workman challenging the award to the extent that it limited the back wages to 25% only. There as on given by the Labour Court is as under : - "In view of my findings on the above issues, the workman is ordered to be reinstated with continuity of service and with (sic) but as regards back wages the workman has stated that he is married and has got three children who are school going and he has stated that his parents support him and his family and he is helping his fattier. It means that he is earning something by casual labour to make both ends meet but at the same time, it cannot be said that he is gainfully employed. So, I am of view that he is entitled to 25% back wages from the date of demand since i.e. 21st April, 1990. The reference is answered accordingly. No order as to costs. The workman is directed to report for duty within 30 days of the publication of the Award."
(2.) COUNSEL for the respondent has relied on certain principles laid down by the Learned Single Judge in the case Brij Basi Udyog, Mathura v. State of U.P. reported in, 2000(1) RSJ280:2006(2) SCT 168 (Delhi). He has relied on the principle No. (vii) enumerated in paragraph 13 of the judgment which is as under : - "(vii) No efforts were made by the workman to seek employment. It is also relevant. The workman should minimise the loss." Counsel for the petitioner relied on the judgment of learned Single Judge of this Court in the case of Ranjit Singh v. The General Manager and another, reported in, 1991(1) RSJ 792 :, 1991(2) SCT 382 (P&H). In that case, the Labour Court had granted back wages to the tune of 50% only on the ground that the workman had nowhere stated in which concern he made efforts for getting service nor he got his name registered with the Employment Exchange forgetting the job. This finding was not accepted by the learned Single Judge and it was held that ordinarily a workman whose services have been illegally terminated would be entitled to have back wages expect for the period, he was gainfully employed during the period of enforced unemployment.
(3.) IN the present case, the Labour Court has tried to divulge the fact that the petitioner is a married man and is having two school going children and has stated that his parents support him and his family and he is helping his father which means that he is earning something by casual labour to make both ends meet. It is difficult to accept this proposition. A man who may be helped by his father to support him and his children who are school going is one thing and being gainfully employed is another thing. If in the circumstances, as mentioned by the Labour Court that the petitioner was helping his father, it cannot be said to be gainful employment. Moreover, in the case of Hari Palace, Ambala City v. The Presiding Officer, Labour Court & another, reported in, 1979 PLR 720 it has been held by the Full Bench of this Court that normally the full back wages should be awarded unless the workman is gainfully employed and that was a normal rule though there can be exceptions.;