SBCWP No.4713/02. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.4713/2002. Sadiq Ali Vs. Judge Labour Court No.2, Jaipur & Anr. Date of order : November 24, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri P.K. Sharma for the petitioner. Shri Hemant Gupta, Additional Government Counsel for the State. **** BY THE COURT :- Heard learned counsel for the parties. 2) This writ petition has been filed by the petitioner-workman challenging the award of the labour court dated 18/4/2001 to the extent it has denied back wages to him. A reference was made to the labour court of the industrial dispute on the question whether retrenchment of the petitioner by the respondents vide order dated 5/8/1988 was legal and justified and if not, for what amount, the workman is entitled for. SBCWP No.4713/02. 2 3) Shri P.K. Sharma, learned counsel for the petitioner has argued that though the labour court has held the retrenchment of the petitioner illegal and the respondents were directed to reinstate the petitioner with continuity but at the same time, it has declined back wages to the petitioner only on conjectures and surmises. Labour court has held that possiblity of the fact that petitioner-workman might have been engaged elsewhere, cannot be denied and on that basis declined to award any back wages. Learned counsel for the petitioner submitted that whether or not the petitioner was in gainful employment, has to be proved as question of fact and such question of fact having not been proved and there being no evidence to show that petitioner was gainfully employed, the labour court erred in law in not awarding backwages. 4) Shri Hemant Gupta, learned Additional Government Counsel opposed the writ petition and submitted that retrenchment of the petitioner was made on 5/8/1988 and the award was passed by the labour court on 18/4/2001. For all this period of long time, it cannot be presumed that petitioner might not have in the gainful employment anywhere. Learned Government Counsel however submitted that writ petition filed against the same award has been dismissed, award has therefore been complied with. SBCWP No.4713/02. 3 5) Perusal of the award reveals that petitioner has before the labour court asserted on oath by filing his affidavit that he was not gainfully employed during the period from the date of retrenchment till passing of the award. Labour court has though noticed this aspect but not given any satisfactory justification while disbelieving the version. It has simply observed that the possibility of the petitioner having gainfully employed during this period elsewhere cannot be ruled out. In other words, what was observed by the labour court was not because of any evidence in rebuttal produced by the respondents. In fact, labour court has proceeded to disallow the back wages only because it presumed that for all this time, petitioner could have been gainfully employed elsewhere. If what is held by the labour court is accepted, its converse also could not be ruled out. No evidence has been adduced by the respondents to show that actually petitioner was gainfully employed or he was employed on regular basis having certain regular or definite income. 6) In the facts of the case, interest of justice would be met if petitioner is awarded 50% of the backwages rather than denying him backwages for the entire period. SBCWP No.4713/02. 4 7) In the result, writ petition is allowed in part. Direction of the labour court contained in award dated 18/4/2001 (Ann.1) denying full back wages for the period from 5/8/1988 to 18/4/2001, for about 12½ years, is modified and instead thereof, respondents are directed to pay 50% of the back wages of such period to the petitioner. Compliance of the judgment shall be made within a period of three months from the date, its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. anil