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. 24 OF 2004 LETTERS PATENT APPEAL NO. 24 OF 2004 LETTERS PATENT APPEAL NO. 24 OF 2004 IN IN IN WRIT PETITION NO. 2315 OF 1995 WRIT PETITION NO. 2315 OF 1995 WRIT PETITION NO. 2315 OF 1995 Noble Paints Pvt.Ltd. ...Appellant (Orig.Respondent) V/s. Shri HaushalaPrasad Brijmohan Mishra ...Respondent (Orig.Petitioner) Mr.Vinod Tayade i/b. Mr.Piyush Shah for the Appellant. Mr.N.M. Ganguli for the Respondent. CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. V.M. KANADE, JJ. V.M. KANADE, JJ. DATED : JANUARY 31, 2008 DATED : JANUARY 31, 2008 DATED : JANUARY 31, 2008 P.C. :- P.C. :- P.C. :- 1. By this appeal, the respondent challenges the order passed by the learned Single Judge of this Court in Writ Petition No.2315/1995 dated 9th November, 2001. That petition was filed by the present respondent-workman challenging the Award passed by the Labour Court dated 22nd April, 1994. By that Award, the Labour Court had directed the present appellant-company to reinstate the respondent with continuity of service - 2 - but without backwages. Writ petition was filed by the respondent-workman challenging the order of the Labour Court denying the backwages to him. The learned Single Judge has set aside the order of the Labour Court denying the backwages to the respondent and has directed the present appellant-company to pay full backwages. 2. The learned Counsel for the appellant submits that the question whether the respondent is entitled to backwages on his reinstatement in service, is considered by the Labour Court in paragraph 13 of the Award. The Labour Court has held that apart from the fact that the son of the respondent owns a garage, the respondent was gainfully employed and was doing business of supplying cotton waste and therefore, he is not entitled to backwages. The learned Counsel submits that in the Judgment, the learned Single Judge nowhere considered this aspect of the reasoning given by the trial Court and has set aside the order merely by observing that the Labour Court has denied backwages to the respondent because his son was carrying on business of garage. The learned Counsel submits that the Labour Court had not - 3 - denied backwages to the respondent because his son was owning a garage but because the respondent himself was carrying business of supplying cotton waste. According to the learned Counsel, therefore, the order of the learned Single Judge suffers from non-application of the mind to the relevant aspect, therefore, has violated the principles of natural justice and therefore, liable to be set aside. 3. The learned Counsel for the respondent, on the other hand, submits that though the learned Single Judge has not specifically discussed the finding of the Labour Court that the respondent was doing business of supplying cotton waste, according to the learned Counsel, even assuming that the respondent was doing business of cotton waste during the period after termination of his services, that cannot be a sole ground for denying the backwages to the respondent. The learned Counsel submits that the learned Single Judge has considered three judgments of the Supreme Court in holding that the respondent is entitled to payment of backwages. The learned Counsel took us through the - 4 - judgment of the learned Single Judge. 4. Now in view of the rival submission, it becomes clear that the reason given by the Labour Court for denying backwages to the respondent are contained in paragraph 13 of the Award. That paragraph reads as under :- "13. In view of my findings on issues No.1, 2 & 3 the workman is entitled for reinstatement. It is strongly argued for the company that the workman is engaged in the business of waste cotton and that he does not want service, but the argument cannot be accepted as it is already held that the services of the workman were illegally terminated. It is clearly admitted in the cross examination of the workman that Mishra Garage workshop belongs to him but it is in the name of his son N.H. Mishra. He has submitted that sometimes, he used to sell cotton waste whenever he get order. He was shown receipt dt.20.5.87 and 28.5.87 and that these receipts are produced alongwith list Ex.26, Sr.No.2 & 3. The workman has admitted that he is doing the above business till today if he got orders. He has already stated that he sold cotton waste to party No.1 company. He has further denied that on 28.7.87, Shri Baukar told him to join duty and he told him that he did not want. All these facts taken together would go to show that the workman has engaged in the business of cotton waste and was earning. It was argued through out for the company that the workman is earning Rs.2000/- to Rs.3000/-. Therefore the workman is not entitled to backwages. The evidence of - 5 - the workman also shows that he has gainfully employed in his own business. Therefore, in view of these facts, I hold that the workman was gainfully employed and hence I answer Issue No.4 accordingly and pass the following Award :- A W A R D The first Party company is directed to reinstate the workman with continuity of service w.e.f.11.4.87 without back wages. No order as to costs." 5. Perusal of the above paragraph shows that the fact that the respondent’s son owns a garage mentioned by the Labour Court was not a ground on which backwages have been denied to the respondent-workman. The backwages have been denied to the respondent-workman because the Labour Court found that he was doing business of supplying cotton waste. Perusal of the order of the learned Single Judge shows that nowhere this aspect of the reason given by the Labour Court for denying backwages, has been considered by the learned Single Judge. In our opinion, the learned Single Judge could have gone into the question whether the respondent is entitled to full backwages, half backwages or what part of backwages, only after recording the finding of - 6 - that the reason given by the Labour Court for denying the backwages to the respondent, is bad or invalid. It is only after setting aside that finding of the Labour Court, the learned Single Judge could have gone ahead and considered the question of entitlement of the respondent for backwages. Now, as a result of series of judgments of the Supreme Court, the law is well settled that the payment of backwages does not follow as a matter of course after the order of reinstatement is made. The burden is on the workman to prove that he was not gainfully employed during the period after termination of his services. On perusal of the order, it is clear from the order of the Labour Court that the employer had led evidence to prove that the employee-respondent was gainfully employed. In our opinion, order of the learned Single Judge suffers from non-application of mind to the relevant aspect of the records, inasmuch as without discussing the only finding recorded by the Labour Court for denying backwages, order of the Labour Court has been set aside. 6. In the result, appeal succeeds. The judgment - 7 - and order of the the learned Single Judge is set aside. The order passed by the Labour Court is restored. 7. Appeal is disposed of. 8. In view of the disposal of the appeal, connected Civil Application No.389 of 2002 does not survive and it is disposed of. (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)