1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 400 OF 2008 LETTERS PATENT APPEAL NO. 400 OF 2008 LETTERS PATENT APPEAL NO. 400 OF 2008 IN IN IN WRIT PETITION NO. 5071 OF 2008 WRIT PETITION NO. 5071 OF 2008 WRIT PETITION NO. 5071 OF 2008 WITH WITH WITH CIVIL APPLICATION ST. NO. 26352 OF 2008 CIVIL APPLICATION ST. NO. 26352 OF 2008 CIVIL APPLICATION ST. NO. 26352 OF 2008 M/s. HBD Machines Manufacturing Corporation. .. Appellant. vs. Ashok Humbare & Ors. .. Respondents. Mr. S.I. Kazi i/by V.M. Parkar for Appellant. Mr. Sudhir N. Deshpande for Respondents. CORAM: J.N. PATEL, & CORAM: J.N. PATEL, & CORAM: J.N. PATEL, & SMT. V.K. TAHILRAMANI,JJ. SMT. V.K. TAHILRAMANI,JJ. SMT. V.K. TAHILRAMANI,JJ. DATE: 6TH FEBRUARY, 2009. DATE: 6TH FEBRUARY, 2009. DATE: 6TH FEBRUARY, 2009. P.C. . Heard. 2. The only issue raised in this Letters Patent Appeal is that the Industrial Court as well as the Learned Single Judge ought not to have given full back wages while ordering reinstatement of the respondent employees. The learned counsel for the appellant 2 places reliance on the judgment of Three Judge Bench of the Supreme Court in the case of General Manager, General Manager, General Manager, Haryana Roadways and Rudhan Singh, Haryana Roadways and Rudhan Singh, Haryana Roadways and Rudhan Singh, reported in 2005 (3) L.L.N. 754 wherein the Supreme Court observed that while awarding back wages the Court has to be cautious and take into consideration a host of factors rather than passing the order in a mechanical manner. 3. In the present case there is evidence on record to show that the employees did report for work at the establishment of the appellant. The workmen stepped into witness box and were cross-examined at length but nothing was brought on record to show that they were gainfully employed during the period they were out of service. Therefore, the decision in the case of General Manager, Haryana Roadways and Rudhan Singh (supra) does not help the appellant. 4. We find that there are concurrent findings of fact in so far as the termination of the respondents is concerned, as illegal. The only reason why the employees approached the Industrial Court was because the Labour court granted 75% back wages. It is the settled principle of law that in case an employee is terminated illegally, he is entitled for reinstatement with full back wages except when it is found that he has been gainfully employed during the period from termination till his reinstatement. 3 5. Therefore, we do not find that there is any merit in the Letters Patent Appeal. The same is dismissed. 6. In view of the dismissal of the appeal, civil application does not survive. The same is dismissed as infructuous. (J.N. Patel, J.) (J.N. Patel, J.) (J.N. Patel, J.) (Smt. V.K. Tahilramani, J.) (Smt. V.K. Tahilramani, J.) (Smt. V.K. Tahilramani, J.)