1 wp-652-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi WRIT PETITION NO. 652 OF 2011. Premchand Thakur Prasad Pandey. ..Petitioner. vs. M/s. Umesh Chemicals Industries & Ors. ..Respondents. .... Ms. Heena Mistry, i/b. A.D. Shetty, for Petitioner. Mr. S.V. Sadavarte, for Respondent. .... CORAM : S.J. KATHAWALLA, J. DATE : 4TH JULY 2011. P.C. : The above Writ Petition is taken up for Admission. 2. The Petitioner was in the employment of the Respondent from 11th November 1994 to 6th November 2004. According to the Petitioner, his services were orally terminated without following due process of law. In view thereof, the Petitioner filed a complaint against the Respondent before the Fifth Labour Court, Mumbai, being Complaint (ULP) No. 126 of 2008 alleging unfair labour practices u/s. 28 read with Item No.1(a), (b), (d), (f) and (g) of Schedule IV of M.R.T.U. and P.U.L.P. Act. In the said complaint, the Petitioner prayed for reinstatement with continuity of services and back wages, w.e.f. 6th November 2004. The Respondents filed their written statement and denied having committed any unfair labour practices. The Labour Court by its judgment dated 7th March 2009 allowed the complaint filed by the Petitioner and directed the Respondents to reinstate the Petitioner with continuity of service and full back wages w.e.f. 6th November 2004. 2 wp-652-11 3. Being aggrieved by the said judgment, the Respondents filed a Revision Application being (ULP) No. 99 of 2009 before the Industrial Court, Mumbai, on various grounds including the ground that the Labour Court erred in granting the full back wages to the Petitioners. The Industrial Court after hearing the learned Advocates appearing for the parties by its detailed order dated 26th August 2010 partly allowed the Revision Application. The order dated 7th March 2009 passed in respect of the reinstatement and continuity of services was confirmed and the order in respect of granting full back wages to the Petitioner was quashed and set aside and the matter was remanded back to the Labour Court to decide the issue of back wages afresh after giving opportunity of hearing to both the sides. 4. Being aggrieved by the Judgment of the Industrial Court dated 26th August 2010 setting aside the order of the Labour Court to the extent of granting full back wages to the Petitioner and remanding back the matter to the Labour Court to decide the issue on back wages, the Petitioner has filed the present Writ Petition impugning the said Judgment. I have heard the learned Advocates appearing for the parties and have also perused the evidence lead by the parties as well as the Judgments of both the Labour Court and the Industrial Court. The Petitioner in his Affidavit of Evidence has categorically stated that from the date of the oral termination of his services till the date of filing of his evidence, he was unemployed though he tried his level best for his gainful employment. However, in his cross- examination, the Petitioner has admitted that for some time he was doing the work of painting and could maintain his family by doing the said work of painting. The learned Judge of the Labour Court has not taken cognizance of this admission and has granted full back wages to the Petitioner. The Industrial Court has in paragraph 7 of 3 wp-652-11 its impugned Judgment held that the Fifth Labour Court has erroneously granted the full back wages to the Petitioner in the following terms :- “7. ....................... The Ld. Judge however erroneously granted the full back wages to the Opponent without considering the fact that the Opponent was doing the painting work for maintaining his family. It is settled law that the back wages cannot be granted manually only on the ground that the termination is illegal. It is for the employee to prove that he was not in the gainful employment and he did not make any income. The Hon’ble Supreme Court in the case of North East Karnataka Road Transport Corporation V/s. M. Nagangouda, reported in 2007-I-CLR-939 has held that, ‘Gainful employment’ includes self employment wherefrom income is generated, even the agriculture income.” The Opponent in his cross examination has admitted that he was doing painting work for maintaining his family and that aspects ought to have been taken into consideration by the Labour Court while granting the full back wages to the Opponent. Therefore, in my view the matter requires to be remanded back to the Labour Court to decide the issue of back wages afresh after giving opportunity of hearing to both the sides. The order passed by the Labour Court dt.07.03.2009 requires to quash and set aside in respect of back wages only.” 5. In my view, after appreciating the evidence recorded before the Labour Court, the learned Member of the Industrial Court has given cogent reasons as to why the issue regarding grant of back wages to the Petitioner, needs to be reconsidered by the Labour Court. The learned Member of the Industrial Court, after correctly recording its reasons, has remanded the matter back to the Labour Court, for its decision only on the said issue. I am therefore of the view that the said Judgment of the Industrial Court cannot be faulted on any ground and the Writ Petition deserves to be dismissed. The Writ Petition is accordingly dismissed with a direction to the Fifth Labour Court to hear both the parties and decide the issue as regards the 4 wp-652-11 payment of back wages to the Petitioner by the Respondents at the earliest but not later than 31st October 2011. 6. The Writ Petition is accordingly disposed of. [ S.J. KATHAWALLA, J. ]