V.K. Bali, J. - (1.) The only objection raised against the impugned Award, Annexure P -4, rendered by the Labour Court is that while dealing with the matter Under Sec. 33C(2) of the Industrial Disputes Act, finding could not be recorded that petitioner -workman was gainfully employed during some period of his forced idleness particularly when the Award reinstating the workman with back wages was passed in contest between the parties wherein question of gainful employment of the workman could also be raised by respondent -Management. In peculiar facts of this case, I do not wish to go into this question in writ Jurisdiction of this Court. The fact that workman was gainfully employed from December 15, 1980 to November 6, 1985 was proved to the hilt on the admission made by workman himself in the proceedings Under Sec. 33C(2) of the Act. It is well settled that the workman is entitled to back wages only for the period he was not gainfully employed. If technical objection raised by Mr. Gupta is accepted, it would result into giving double benefit to the workman, which, equity does not demand. The relief to be given under Article 226 of the Constitution of India is discretionary and it is not necessary in every case to interfere particularly if no injustice has been done. However, Mr. Gupta, appears to be on stronger footing while pressing his point that if the workman was gainfully employed for some period, it could not be said by the Labour Court that for the said period no wages shall be paid even though it may be proved that the workman was so gainfully employed on lesser pay than that was given by the Management. From the evidence that was led before the Labour Court and, in particular, from the statement of the workman himself, which stand has been accepted by the Labour Court also, it is clear that the workman remained employed on a consolidated salary of Rs. 575/ - per month after his retrenchment whereas he was drawing wages of Rs. 625/ - per month when his services were retrenched. There was, thus, a difference of Rs. 50/ -per month which had to be paid by the Management to petitioner -workman. There cannot be any exception to the aforesaid argument of learned counsel. In the forced circumstances workman is sometimes compelled to accept a job on far lesser pay than that he was getting from his earlier employer. It is only to the extent that he was gainfully employed that wages are not to be paid to him. Petitioner is, thus, held entitled to an amount of Rs. 50/ - per month over and above ordered to be paid by the Labour Court from December 15, 1980 to December 14, 1981 for which period he was gainfully employed on salary of Rs. 575/ - per month only as is clear from the statement of workman made before the Labour Court.
(2.) Mr. Gupta also contends that the workman was entitled to Rs. 100/ -increment per year and this evidence could not be led as the representative of the workman refused to appear on his behalf on March 2, 1989 on which date the statement of workman was recorded. The record does show that the representative of workman refused to appear on his behalf on March 2, 1989 and it is possible that the workman might have been prejudiced but for that reason I do not wish to remand the case for de -novo decision. It shall, however, be open to the petitioner -workman to file fresh application Under Sec. 33C(2) of the Act which shall, however, be confirmed only to the grant or otherwise of the increments.
(3.) This petition is, thus, partly allowed to the limited extent as indicated above. Parties are however, left to bear their own costs.;