In order to claim backwages, the workman must prove with evidence that he was not gainfully employed after dismissal.

JUDGMENT :

VIPUL M. PANCHOLI

1. This petition is filed under Articles 226 and 227 of the Constitution of India, in which, the petitioner – Employer has challenged the award dated 17.12.2011 passed by the Presiding Officer, Labour Court, Kalol in Reference (LCK) No.204/2005, whereby the Labour Court has partly allowed the Reference and directed the petitioner to reinstate the respondent – workman with continuity of service and to pay 75% backwages.

2. Heard learned advocate, Mr. Varun K. Patel for the petitioner and learned advocate, Mr. Reena Kamani for learned advocate, Mr. P.H. Pathak for the respondents.

3. Learned advocate, Mr. Patel appearing for the petitioner submitted that the petitioner is a proprietary firm and is engaged in the business of manufacturing of Ghamelas, buckets, agricultural implements and utensils. It is submitted that there was only one post of Pressman in the manufacturing unit of the petitioner and the respondent was working as Pressman in the said unit, however, the post of Pressman was to be abolished w.e.f. 01.05.2005 and, therefore, the respondent – workman was retrenched from the services of the petitioner w.e.f. 01.05.2005 and the respondent – workman was informed about the same vide communication dated 26.04.2005 about the abolition of the post and his retrenchment w.e.f. 01.05.2005. It is submitted that the respondent was also informed that he would be paid gratuity, retirement benefits and other legal dues by the petitioner, copy of said letter was sent by Registered Post AD, however, it was returned with an endorsement that the respondent – workman has refused.

4. Learned advocate submitted that thereafter, the respondent – workman raised industrial dispute, which was referred to the Labour Court, Kalol, where the statement of claim was filed by the respondent – workman at Exh.5, whereas the petitioner filed written statement, Exh.7 and after considering the evidence led before the Labour Court, now the impugned award has been passed by the Labour Court, whereby the aforesaid direction has been issued.

5. At this stage, learned advocate submitted that while admitting the present petition, this Court has granted stay with regard to continuity of service and 75% backwages on a condition that the respondent – workman shall be reinstated in service within stipulated time. It is submitted that immediately thereafter, the petitioner reinstated the respondent – workman on 15.05.2012 and he has worked with the petitioner till 11.11.2018. It is submitted that the respondent – workman died on 11.11.2018. Learned advocate, therefore, urged that now the dispute is with regard to 75% backwages awarded by the concerned Labour Court.

6. Learned advocate submitted that it was the specific case of the petitioner before the Labour Court that there was only one post of Pressman, which was abolished and, therefore, the respondent – workman was retrenched, therefore, there is no question of preparation of seniority list for the post of Pressman and in fact, the compensation was offered to the respondent – workman, which he had refused. Learned advocate at this stage has referred to the statements of claim, copy of which is placed on record at Page No.23 of the compilation. It is submitted that in the said statement of claim, the respondent – workman has not stated that he is not gainfully employed and thus, there is no pleading before the Labour Court with regard to the same. Learned advocate at this stage also referred to the deposition given by the witness of the petitioner, wherein it has been specifically stated that the respondent – workman is having one rickshaw bearing Registration No.GJ-18-X-7356, which is of the ownership of the respondent – workman. Learned advocate has also referred to the cross-examination of the respondent – workman, wherein he has admitted that his son is driving rickshaw. Thus from the aforesaid evidence produced before the Labour Court, it is contended that the respondent – workman wa