1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.3567 of 1996 Narayan V. Patil Petitioner Vs. Lalita Arts & anr. Respondents Mr.N.M.Ganguli for petitioner. Mr.Prashant G. Sawant for resp.no.1. CORAM: B.H.MARLAPALLE, J. January 22, 2008 ORAL JUDGMENT: 1. This petition impugns the award passed by the 6th Labour Court at Mumbai on 3/4/1995 thereby allowing Reference (IDA) No.692 of 1993. The Labour Court was pleased to direct reinstatement of the petitioner in his usual position with continuity of service with effect from 16/9/1992 and he was denied the benefit of backwages. Hence this petition is limited to the challenge of denial of backwages as the petitioner has succeeded on the demand of reinstatement. He claims that he ought to have been reinstated with full backwages. 2. Mr.Ganguli has placed reliance on the decision in the case of S.G.Chemicals and Dyes Trading Employees Union Vs. S.G. Chemicals and Dyes Trading 2 Limited & anr. [LLJ 1986 SC 490] [LLJ 1986 SC 490] [LLJ 1986 SC 490]. It was contended by Mr.Ganguli that it could not be conclusively proved before the Labour Court regarding the gainful employment of the petitioner during the intervening period and the onus squarely fell on the employer to prove the same. 3. Having heard Mr.Ganguli, the learned counsel for the petitioner and Mr.Prashant Sawant, the learned counsel for the respondent no.1 and on perusal of the R. & P., I am satisfied that no interference is called for in the impugned award for the following reasons: (a) In the Statement of Claim the workman admitted that for some time he was employed with Radhakrishna Printing Press after 16/9/1992 and that he came to be removed because the first party - employer intimated to the said company and everywhere he went, he had the same problem and, therefore, he could not get an employment. In the written statement filed by the employer, it was clearly mentioned that with effect from 16/9/1992 the workman was employed with Radhakrishna Printing Press at Girgaon and at the time the written statement was filed, he was employed 3 with Million Industries at Kala Chowkie. No doubt the employer did not bring any proof before the Labour Court in support of his contention that the workman was gainfully employed during the intervening period but at the same time it is not necessary that in every case of termination found illegal, the order of reinstatement with full backwages must necessarily follow. The benefit of granting full backwages depends on various factors like length of service, nature of job i.e. skilled or unskilled and the nature of misconduct, if any, for which the order of dismissal or termination from service was passed. (b) In the instant case admittedly the workman started working with the first party sometimes in October 1991. The employer claimed that he had joined on 26/10/1991 and the written statement of the first party very clearly stated that in the year 1991 he had put in 54 days of work, and in the year 1992 he completed 173 days of work by 15/9/1992. The employer had taken a stand that from 16/9/1992 the workman did not turn up. However, on the point of working days, the employer has placed on record a list of 12 vouchers (Exhibit C-4) and each of the voucher mentions the days of work in the earlier 4 month. If the vouchers are seen cumulatively, the plea of the employer regarding the number of working days ought to be accepted and it is clear that he did not complete 240 days of work as on 16/9/1992. Admittedly, he was a daily rated workman and, therefore, even for counting 240 days or service of one year within the meaning of Section 25-B of the I.D. Act, he would not get the benefit of weekly holidays. (c) Oral evidence of the workman does show that at least for some time he was employed with Radhakrishna Printing Press. Thus having regards to the short tenure of service and the alternate employment for some time, if the Labour Court while exercising discretion under Section 9-A of the I.D. Act has denied payment of backwages, there is no case for interference in the said view under Article 227 of the Constitution and more so when it is a possible view. Such a reasoning cannot be termed as perverse or manifestly erroneous. It must also be mentioned that the employer preferred not to file a writ petition challenging the award and it is clear that before the Conciliation Officer as well as before the Labour Court he had offered the petitioner 5 employment, if he would report to work. 4. Hence the impugned award does not call for any interference and the petition must fail. The same is hereby dismissed. Rule is discharged. No costs. (B.H.MARL