ORDER

1. The short question posed for our consideration by the appellant management is to the effect whether the respondent was entitled to full back wages as directed by the High Court when the Labour Court on the dispute raised by the respondent against his termination had ordered his reinstatement in service with continuity but with 40% back wages.

2. The respondent was admittedly a daily wager Mali. He was removed from service on 13-9-1983. He raised an industrial dispute. The Labour Court, after hearing the parties, took the view that his termination was contrary to Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act"). However, in the absence of there being any clear evidence that the respondent was gainfully employed in the meantime the Labour Court passed a curious order saying that the ends of justice would be fully met if the workman is given continuity of service with back wages up to the extent of 40%. The respondent carried the matter in writ petition before the High Court. The appellant had not challenged the order of reinstatement and continuity of service as granted by the Labour Court to the respondent. Therefore, the short controversy before the High Court was as to whether the Labour Court was justified in denying 60% back wages to the respondent workman after having found that he had worked for 240 days and more during the relevant year before the termination and therefore the termination was violative of Section 25-F of the Act. The High Court in the writ petition observed that, "the workmen whose services have been terminated illegally are entitle to reinstatement with full back wages unless something contrary is sown. The High Court further observed that how the offer made the management to the respondent, who is Class IV employee, viz., Mail to Join the without back wages was Justified. Consequently, the High Court a allowed the wait petition and awarded full back wages to the respondent This order has been brought in challenge by the management in the present proceedings after obtaining special leave to appeal under Article 136 of the Constitution.

3. Learned counsel for the appellant raised following contentions in support of the appeal:

. (1) .that as the respondent was a daily wager when he was reinstated in service With continuity the Labour Court was justified in awarding only 4.0% back wages as he had not worked with the management in the meantime;

(2) that in a similar matter wherein a daily wager, Sweeper, was terminated and was ordered to be reinstated in service the Labour Court had granted 50% back wages and the High Court had granted 100% back wages. But this Court had set aside the order of the High Court. The appellant management in that case was the same as in the present case.

4. In support of these contentions reliance was placed on two decisions of this Court in M.D., U.P. Warehousing Corpn. v. Vijay Narayan Vajpayee and Jitendra Singh Rathor v. Shri Baidyanath Ayurved Bhawan Ltd.7 In our view none of the judgments can be of any avail to the appellant on the facts of the present case. It has to be kept in view that when termination is found to be violative of Section 25-F of the Act, it would be void as condition precedent would be found to be lacking for passing such order. The result would be that the workman concerned would be deemed to be in service throughout as has rightly been held by the Labour Court in his favour. Once that conclusion is reached, unless there is a clear evidence of gainful employment in the meantime, the respondent could not have been denied back wages to any extent.

5. In the decision in Vijay Narayan Vajpayee6 there was a direct write petition med by the employee who was terminated by the Corporation whim was amenable writ jurisdiction under Article 226 of the Constitution. In t case the employee was charged with allegations of theft, misappropriation 0 stock and certain irregularities. After preliminary enquiry and t