An employee whose removal is set aside illegal is deemed to be in service throughout and is entitled to the back-wages in terms of his continued employment throughout.

LINGARAJA RATH, J.

( 1 ) THE question falling for decision in this appeal is whether the Labour Court deciding an application under Section 33-C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act ) can refuse the claim of a reinstated workman for salary of the period from the date of the removal till the date of the judgment in the writ petition in which the removal is set aside, taking the view that such claim of the workmen is not an existing right implementable under the Section. A brief sketch of the facts are that the writ petitioner, who is the appellant before us, was a clerk-cum-cashier of the respondent-bank put under suspension on 13/10/1979 on account of his involvement in a criminal case and subsequently was removed from service on 31/12/1979 without any enquiry having been held. He was acquitted in the criminal case on 27/11/1980 and thereafter filed Writ Petition 6662 of 1980 in this Court claiming reinstatement in service. The writ petition was allowed on 22/02/1983 holding the removal to be illegal and directing his reinstatement but no orders were passed regarding the payment of the back-wages. The appellant was reinstated in service on 28/04/1983 and thereafter made the application under Section 33-C (2) before the Labour Court for the relief of back-wages for the period October 13, 197 9/04/1983. The Labour Court divided the period into three phases, the first being 13/10/197 9/12/1979, i. e. , the period of suspension for which period it directed payment of full back-wages less the subsistence allowance received. For the period 1/01/1980 to 2/12/1983 payment of back-wages was refused taking the view as above said. The claim for the back-wages for the period 22/02/198 3/04/1983 i. e. , the period intervening the judgment of in Writ Petition No. 6662 of 1980 and the actual reinstatement was also allowed. The decision of the Labour Court was assailed by the appellant in Writ Petition No. 11306/85 but the result having gone against him, this appeal has been preferred. The Labour Court in refusing the claim of the appellant took the view, pointing out that the appellant had not referred to any decision that once the order of dismissal is quashed the employee as a matter of course is entitled to back-wages, that silence in the judgment of Writ Petition No. 6662 of 1980 regarding payment of back-wages suggests that while quashing the order of reinstatement, payment of back-wages can be disallowed. It further held that it is not for the Labour Court to determine in an application under Section 33-C (2) whether back-wages should be allowed in full or part and, if so, to what extent. In simple terms, the Labour Court was taking the view that the amount of back-wages being not a determined figure, an application under Section 33-C (2) was not maintainable.

( 2 ) THE learned single Judge before whom the order of the Labour Court was assailed took the view that the normal rule is that if the employer is found to be wrong as a result of which the workman is directed to be reinstated, the workman whose services have been illegally terminated would be entitled to full back-wages except to the extent he was gainfully employed during the enforced idleness. While saying so, the learned Judge, however, observed :"when this Court has not made any order with regard to back-wages, the proper remedy left to the employee in case of nonpayment of back-wages is to get the matter referred under Section 33-C (2) of the Industrial Disputes Act. Section 33-C (2) of the Act does not strictly apply. If the Labour Court directs reinstatement, then the position is entirely different. "probably, we venture to say, the reference to Section 33-C (2) when first made in the above quotation is a mistake for Section 10 of the Industrial Disputes Act which, if so read, discloses the view taken that where High Court has not made any order regarding back-wages, the employee should seek a reference to the Tribunal and if the

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