Important Point – 100% back wages cannot be awarded when workman was gainfully employed during intervening period.

1. Heard Mr. K.M. Patel, learned Senior Counsel with Mr. V.K. Patel, learned advocate for the petitioner and Mr. Mansuri, learned advocate for the respondent workman.

2. The captioned two petitions are taken out against the same award passed by learned Labour Court at Bharuch i.e. award dated 18.1.2005 in Reference (LCB) No. 226 of 1997. The first petition i.e. Special Civil Application No. 7072 of 2005 is taken out by the employer whereas second petition i.e. Special Civil Application No. 14818 of 2005 is taken out by the workman.

3. The petitioners have brought under challenge the award dated 18.1.2005 passed by learned Labour Court at Bharuch in Reference (LCB) No. 226 of 1997 whereby learned Labour Court has directed the employer to reinstate the respondent workman on his original post and to pay 65% backwages.

4. In view of the fact that both the petitions arise from same award, the petitions are heard and decided by this common order / judgment.

4.1 In this view of the matter, for the sake of convenience the original claimant – workman (i.e. petitioner in Special Civil Application No. 14818 of 2005) is referred to and described, in present decision, as “respondent workman” and the petitioner in Special Civil Application No. 7072 of 2005 is referred to and described as the “petitioner” or “petitioner employer” in present decision.

5. The petitioner employer is aggrieved by the direction which requires the petitioner employer to reinstate the workman and also obliges the petitioner to pay backwages 65%.

5.1 Whereas the respondent workman is aggrieved by the decision of learned Labour Court to refuse the benefit of 100% backwages and the respondent workman has claimed that the award whereby benefit of balance 35% backwages is denied to him may be set aside and he should be awarded backwages @ 100%.

6. So far as factual background is concerned, it has emerged from the details mentioned in the petitions and from the factual aspect recorded by the learned Labour Court in the impugned award, that upon being terminated from the service by order dated 22.11.1995 the respondent workman raised dispute which was considered and treated as industrial dispute and since any settlement between contesting parties did not materialize, the appropriate government referred the dispute for adjudication to learned Labour Court at Bharuch vide order of reference dated 10.6.1998. The said order or reference culminated into Reference (LCB) No. 226 of 1997.

6.1 During the proceedings before the learned Labour Court the respondent workman filed statement of claim wherein he alleged that his service came to be terminated illegally and arbitrarily and without following any procedure prescribed by law.

6.2 The respondent workman also claimed that he was working in the petitioner company since February 1989 on the post of Accountant – Clerk and at the salary of Rs.3300/- per month. He also claimed that he was member of the office bearer in the Union viz. “ABC Karmachari Union” and he held the post of Treasurer in the said union.

6.3 The respondent workman also claimed and alleged that though a settlement was arrived at between Union and the petitioner, and according to the terms of the settlement the employees whose services were terminated by the petitioner were to be reinstated, the petitioner did not implement the said settlement qua him and thereby committed breach of the settlement. The respondent workman also claimed that the settlement dated 13.6.1996 was not implemented by the petitioner in respect of other two workmen as well.

6.4 The respondent workman also claimed that any departmental proceedings were not initiated and conducted against him and before terminating his service the petitioner had not paid him any compensation or any other amount except the wages for current month and 1 month notice pay.

6.5 On the premise of such allegations, respondent workman claimed that the order passed by the petitioner terminating his service may be set asi