( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1336 OF 1993 Shrimati Dhonika d/o Uttamrao Patole, R/o c/o Shri U.B. Patole (Master), Karist Camp, Walmiknagar, Gandhi Nagar Road, Jalna. PETITIONER VERSUS 1. The Manager, J.W.E.S. Douglas Girls Hostel, Jalna. 2. The State of Maharashtra RESPONDENTS …. Mr. H.A. Joshi, advocate holding for Smt. Smita Deshpande, advocate for the petitioner. Mr. S.G. Bobade, advocate holding for Mr. S.S. Choudhari, advocate for the respondent No. 1. Mr. D.R. Korade, AGP for the respondent No. 2. …. [CORAM : V.R. KINGAONKAR, J.] [DATE : 13th August, 2010] ORAL JUDGEMENT : 1. By this petition, the petitioner seeks to challenge a part of the Award rendered by learned Presiding Officer, Labour Court, Aurangabad in Reference (IDA) No. 15/1981. By that Award, Reference made under sections 10 and 12 of the Industrial Disputes Act by the Deputy Commissioner of Labour came to be allowed in favour of the petitioner. Still, however, while directing her reinstatement by the respondent ( 2 ) No. 1, with benefit of continuity of the services, no order was rendered regarding payment of backwages in her favour. 2. It is not necessary to elaborately set out the rival pleadings of the parties in as much as the dispute lies in a narrow compass. The petitioner challenges only a part of the Award whereby the Labour Court failed to consider her request for payment of backwages and no order in this behalf is rendered while deciding the Reference under sections 10 and 12 of the Industrial Disputes Act. There is no dispute about the fact that the petitioner was employed as warden in the Girls Hostel run by the respondent No. 1. She was working with the respondent No. 1 as such since July, 1976. She is M.A. B.P.Ed. And also had completed the training course as required to work as Warden. She was appointed in clear vacancy which had fallen vacant on account of superannuation of earlier warden by name Miss A.O. Sakhare. Her case before the Labour Court was that she was unnecessarily and illegally shunted out of the service by passing illegal termination order on 13-10-1979. She alleged that she was victimized due to the illegal termination. The Deputy Labour Commissioner had referred the dispute since the talks of conciliation had fizzled out. The Labour Court came to the conclusion that ( 3 ) termination of the petitioner was illegal. The Labour Court, however, noticed that the petitioner had admittedly worked elsewhere for some period between the date of termination of the service till the date of Award and, therefore, she was not entitled to seek the backwages. The case of the petitioner was that she was not paid any retrenchment compensation nor any notice was served on her prior to the termination. 3. Heard learned counsel for the parties. 4. At the threshold, let it be noted that the respondent No.1 has not filed any reply-affidavit in this matter. Needless to say, the averments made in the petition are not traversed. It is, therefore, quite clear that the statement in the petition can be looked into and may be relied upon in order to verify the fact situation. The learned Judge of the Labour Court vaguely observed that from her own evidence, it was apparent that the petitioner was gainfully employed after termination from the service and was working with Saint Marry High School, Jalna at the relevant time. Except and save such bald observation, no other tangible reason is assigned by the Laour Court to deny the entire claim for the backwages. It is pertinent to notice that the Labour ( 4 ) Court did not record any positive findings as regards gainful employment of the petitioner all along the relevant year from date of termination till her reinstatement. 5. The petitioner has made a categorical statement in paragraph No. 4 of her petition that she had worked purely on temporary basis during the relevant period. She has given details of such temporary employment. It appears that she worked as an Assistant Teacher in Rashtriya Hindi Vidyalaya, Jalna for period of 8 months and 20 days from 12-08-1987 to 30-04-1988, for period of 10 months 18 days in Arya Hindi Vidyalaya, Jalna as well as for period of 10 months and 15 days between 15-06-1989 to 30-04-1990. It appears that she worked for about 22 months and 12 days in Saint Mary School, Jalna from 02-07-1990 till the date of her reinstatement in the service. She categorically stated that she gave notice of resignation which was accepted w.e.f. 30-04-1993. Obviously, she intermittently worked during the relevant period from date of her termination of services till the date of her reinstatement, in various schools and that too as a temporary employee. There is no material on record to show that she was always gainfully employed and was working as a permanent employee on establishment of any other school. ( 5 ) 6. One cannot be oblivious of the fact that the petitioner is a duly qualified and well educated/trained employee. It was not expected that since date of termination, she would keep herself unemployed with a hope that one day or the other, she may get the final relief from the Labour Court and after some years, she would be reinstated. Her casual employment during the relevant period could not be regarded as sufficient substratum to reject her claim out-rightly and for the entire period, as such. What appears from the uncontroverted statement of the petitioner in the petition is that for about 60 months and some days, she was working intermittently during the relevant period. She was out of service for approximately 12 years, if appropriate period of her being unemployed is concerned, atleast she was not gainfully employed for about six (6) years during the relevant period. Therefore, the Labour Court should have granted her 50% of the backwages if the intervening employment was to be considered. The total rejection of her claim is, therefore, without sufficient reasons and as such, the impugned part of the Award deserves modification. It cannot be overlooked that the respondent No. 1 failed to prove that the petitioner was gainfully employed all along the period since the period of ( 6 ) her termination till the reinstatement. 7. For the reasons aforestated, I am inclined to hold that the petitioner is entitled to 50% of the backwages for the period of her unemployment from date of the termination i.e. 13th October, 1979 till the date of reinstatement. The Labour Court, in fact, did not pass any order as such while passing the final order in the matter though finding has been recorded against the issue raised in the matter being the issue No. 4. Hence, the petition is partly allowed. The respondent No. 1 shall pay 50% of the backwages to the petitioner as stated above and the same shall be worked out within period of three (3) months and the payment of the arrears shall be made within period of four (4) months hereafter. Rule is partly made absolute accordingly. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp1336-93 ( 7 )