The grant of back wages in cases of reinstatement must be considered on a case-by-case basis, taking into account various factors such as the nature of appointment, length of service, and availability of alternative work.

( 1 ) THIS petition has been filed against an award of the Labour Court passed in adjudication case No. 194 of 1984 in proceedings under Section 10 of the Industrial disputes Act. The reference made was thus-

"whether the action of the management of state Bank of India, Region III, The Mall, kanpur, in relation to their Jhonstonganj branch, Allahabad in terminating the services of Shri Mahatma Mishra, ex-Messenger with effect from September 4, 1982 and not considering him for further employment as provided under Section 25-H of the Industrial Disputes Act, is justified, if not to what relief is the workman concerned entitled. "

( 2 ) BY the award dated May 10, 1985 the industrial Tribunal- cum-Labour Court has reinstated the respondent No. 2 with full back wages. I have heard learned counsel for the parties and have also perused the record. The facts appear from the record are that the respondent No. 2 was engaged as temporary employee at Jhonstonganj, Allahabad of the petitioner bank on May 31, 1982, his services were terminated by way of an oral order on september 3, 1982. It is stated by the petitioner that workman had worked only 88 days and without break. The facts as stated by the petitioner are that the petitioner bank had not given to the respondent-workman any appointment letter, any termination letter and as workman was not permanent employee, no notice was also given to him.

( 3 ) THE petitioner bank contends that as the nature of engagement of respondent- workman was of casual nature and not against any permanent post or vacancy and also on account of fact that under the Sastry Award and Desai award, it was open to the banks to engage such casual workman, it had done so and the workman was not liable to be reinstated on this account.

( 4 ) LEARNED counsel for the petitioner bank has argued that the award of the Labour Court is vitiated on account of the fact that the Labour court has wrongly come to the conclusion that the respondent-workman had been engaged against permanent post. He argues that the labour Court has wrongly recorded that the job of the messenger, for which the workman, had been engaged was of a permanent nature. He argues that finding has been without any basis whatsoever or any discussion on the subject that the job of the messenger was of permanent nature. He reiterates the contentions of the bank that the respondent- workman had been engaged only for a short period as a messenger as there was temporary requirement in the bank. The finding, as he argues, is completely erroneous in absence of any discussion that job of a messenger was of a permanent nature.

( 5 ) HIS second argument also arises from the first argument and he argues that it was not within the scope of reference made to the industrial Tribunal to go into the question of existence of vacancies. His third argument is that the findings recorded by the Labour Court on "unfair labour practice" is also vitiated in absence of any specific pleading or any proof in this regard.

( 6 ) LEARNED counsel for the petitioner has relied on a recent decision in the case of regional Manager, State Bank of India, v. Raja ram (2004) 8 SCC 164 : 2005-I-LLJ-12 (SC)on a question as to what amounts to "unfair labour practice", the Honble Supreme Court has held that it is only when the year after year and for many years, the employees are continued in service with artificial breaks in the service with object to deprive them status and privileges of a permanent workman. Can it be said that it was a case of "unfair labour practice. "?

( 7 ) SRI Arnab Banerjee learned counsel appearing for the petitioner argues that in the present case, since the admitted position is that the workman has worked only 88 days, it cannot be said that respondent-workman had been deprived of a permanent status having continued to work with the bank year after year.

( 8 ) SRI Banerjee has also argued that it is also open to the bank under the Sastry Award and the Desa