N.V. Anjaria, J.

1. It is against judgment and award dated 5.1.2006 of Labour Court, Surat passed in reference (LCS) No. 142 of 1993, that the present petition is filed. By said judgment and award, the Labour Court allowed the reference of the respondent-workman and directed her reinstatement on the original post with backwages. It further directed to pay Rs.2,000/- towards costs.

The respondent-workman, according to her case in the Statement of Claim, was employed with the first party employer since 1.1.1978. The work of road repairing and incidental work was being taken from her and she was paid daily wages at the rate of Rs. 11.70 ps. per day. It was the case that her services were illegally terminated with effect from 21.3.1987. The grievance of the workman was also that the employer was not paying minimum wages and treating her arbitrarily. The workman prayed for reinstatement with backwages. The first party employer filed reply at Exh. 27 and contested the reference.

It appears that the workman was reinstated by the petitioner after this Court issued notice in the petition on 4.12.2007. Following was recorded in the order:

"2. Ms. Mandavia, learned Counsel appearing for the petitioner submits that in order to avoid paying idle wages under section 17-B of the I.D. Act, the petitioner has chosen to reinstate the respondent-workman without prejudice to the rights and contentions about her being not an employee of the petitioner. She submits that however, the order of the Labour Court qua back wages may be stayed as the learned Labour Court has not assigned any reason whatsoever justifying payment of 100% back wages.

3. Mr. Koshti, learned Counsel appearing for the respondent submitted that the order so far as reinstatement is concerned, the same is reasoned one, however, if the Court is inclined to stay the back wages, liberty be reserve to the workman to approach the Court in case of any difficulty in future as she is continue in service as she has been reinstated by the Panchayat pending petition.

4. In view of that, Rule. The Award passed by the Labour Court dated 5.1.2006 passed in Reference (LCS) No. 142 of 1993 is hereby stayed in respect of back wages only. It is clarified that the workman, who has been reinstated, shall be continue during pendency of this petition."

2. Heard learned advocate Ms. Sejal K. Mandavia for the petitioner-employer and learned advocate Mr. K.R. Koshti for the respondent-workman.

Learned advocate for the petitioner submitted that the reference was sought for after gap of 7 years. It was submitted that the Labour Court did not record the finding about breach of section 25-F of the Industrial Disputes Act, 1947, yet passed the order of reinstatement. Learned advocate for the petitioner further submitted that though the workman was reinstated, it was without prejudice to the rights and contentions of the petitioner. She submitted that the part of the award which directed payment of backwages, was wholly uncalled for and unjustified and further that relief as awarding of backwages was not to be automatic.

On the other hand, learned advocate for the respondent submitted that the employer left the contest and leading of evidence in the midst, and his evidence ultimately came to be deleted. It was submitted that the evidence led by the workman was rightly believed by the Labour Court. Learned advocate supported the award of backwages by contending that the employer was required to establish by leading evidence that the workman was employed elsewhere.

3. From the facts on record and on consideration of the judgment and award of the Labour Court, it appears that as per the case of the workman, she was continued during the period from 1978 to 1987. She deposed herself at Exh. 9 and supported the facts stated in the Statement of Claim. One Ranchhodbhai Chaudhary (Exh. 38) was examined on behalf of the workman who fortified the case that the workman was engaged to work on the roadside and was doing work o