( 1 ) wp498.06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 498 OF 2006 Pandurang s/o. Gyanoba Shinde .. Petitioner Age. 50 years, Occ. Service, At present Nil, R/o. Behind Kapad Mill, Latur, Tq. & Dist. Latur. Versus Karyakari Sanchalak .. Respondent Indira Sahakari Soot Girni Ltd., M.I.D.C., Latur. Mr. Kiran M. Nagarkar, Advocate for the petitioner. Mr. V.D. Hon, Advocate for the respondent. CORAM : V.R. KINGAONKAR,J. DATED : 12.01.2011 ORAL JUDGMENT :- 1. By this judgment, the petitioner challenges the judgment and order dated 11.11.2003 rendered by the Labour Court, Latur and refusal to grant back wages to him. The petitioner filed complaint under Section 28 (1) read with ( 2 ) wp498.06 Item 1 (a) (c) and (e) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices, 1971 (for short “MRTU & PULP Act”). His complaint No. 46 of 1998 was decided by the Labour Court in his favour. The Labour Court directed that the petitioner shall be reinstated by the respondent as a Winder within a period of two months with continuity of service. The Labour Court, however, declined to grant back wages to him. He preferred Reference (ULP) 259 of 2004, which came to be dismissed vide the impugned judgment rendered by the learned Member of the Industrial Court, Latur. 2. Short question involved in the petition is whether the petitioner is entitled to claim back wages and if he is so entitled, to what extent? 3. Heard learned advocates for the parties. 4. It is not necessary to go into the details of the dispute pertaining to the termination of services of the petitioner. Suffice it to mention here that he was working ( 3 ) wp498.06 since 04.12.1995 on the establishment of the respondent in Winding Department and later-on, was working in Mixing Department. He alleged that he was earning monthly pay of Rs.1200/- at the relevant time. He further alleged that he was illegally terminated on 08.07.1998, and the respondent committed unfair labour practices within the ambit of Schedule IV of the MRTU & PULP Act. 5. The Labour Court declined to grant back wages to the petitioner on the ground that he was gainfully employed and had refused to work in a particular department. The relevant observations of the Labour Court may be reproduced for ready reference. It is observed : “13. The complainant in his evidence has stated that he is maintaining his family by doing labour work and also is having some landed property, this aspect would show that he is gainfully employed and had also refused to work in a particular department. Therefore, he is not entitled to claim the backwages. The third aspect in respect of continuity, it is granted as there is no any case made out by the respondent to refuse it. x x x x x x x x x x x x” 6. What appears from the above observations of the ( 4 ) wp498.06 Labour Court is that the petitioner admitted the fact that he was doing labour work. He further admitted that he is holder of certain landed property. His admission is to the effect that he was maintaining family members by doing labour work. His admission does not show that he was earning any income from the agricultural land. The admission of the petitioner reveals that he was required to maintain members of family by doing labour work. It is of common knowledge that the work as a labourer is available as and when only employer requires such engagement of labourer. It is not a regular work available to any worker nor the income is certain. The income earned by a labourer would not be sufficient to satisfy the usual needs of him and the family members though he may carry out with the sustenance with the difficulties. In other words, such a labourer, who faced adverse circumstances and financial difficulties might have survived during hard days. But, it does not mean that he was gainfully employed. The expression “gainful employment” would imply that there was some gain received out of such employment. The mere physical survival of a person due to some work available as and when employers or agriculturists ( 5 ) wp498.06 require such engagement of labourer by itself cannot be termed as “gainful employment”. I may go a step ahead and say that such employment is need-based employment. 7. The learned Counsel for the respondent seeks to rely on certain observations in “North East Karnataka Road Transport Corporation V/s. M. Nagangouda” (2007 AIR SCW 736). The Apex Court has observed “Income either from employment in an establishment or from self-employment merely differentiates the sources from which income is generated, the end use being the same. Since the respondent was earning some amount from his agricultural pursuits to maintain himself, the Labour Court was not justified in holding that merely because the respondent was receiving agricultural income, he could not be treated to be engaged in “gainful employment””. 8. The fact situation in the given case is altogether different from the fact situation of the present case. It appears that in the given case the worker was found to be in a position to earn income out of his agricultural pursuits. ( 6 ) wp498.06 The admission of the petitioner was limited to the extent that he was able to maintain the members of the family by doing manual work as a daily wager. There is no admission of the petitioner that he was earning any agricultural income as such nor there is any admission to infer that such income was sufficient to maintain family members as well as he could have saved some corpus for the futuristic needs. The Labour Court seems to have misconstrued the admission of the petitioner. The learned Member of the Industrial Court also failed to take notice of such illegality committed by the Labour Court. The grant of back wages would always depend upon peculiar fact situation in each case. The respondent did not adduce any evidence to show that the petitioner was otherwise gainfully employed, during the relevant period after termination of his services. The stray admission of the petitioner was erroneously interpreted by the Labour Court while denying the back wages to him. The Labour Court observed that the respondent did not issue any notice to the petitioner to join service as a Winder. Once it was observed that the petitioner was ready to work on the establishment of the respondent, it goes without saying that the denial of ( 7 ) wp498.06 back wages is unfounded. What appears from the record is that the petitioner desired to work in the Mixing Department; whereas the respondent insisted that he shall work as a Winder. It does not mean that the petitioner abandoned duty and was totally unready to work as a Winder. True, the petitioner could not be allowed to choose the nature of employment. Obviously, the Labour Court was right while directing him to join duty as a Winder. 9. Considering the peculiar fact situation of the present case and the fact that there was reluctance of the petitioner to join as a Winder, it would be appropriate and in the interest of justice to grant 50% of the back wages to him from the date of termination of service till the date of the impugned judgment of the Labour Court. The petitioner shall be paid such 50% of the back wages along with arrears within a period of four months. The petitioner is at liberty join duty within a period of one month and he shall be allowed to join duties within such period. If he will fail to join the duty within a period of one month, then the respondent may take appropriate measures to bring it to the ( 8 ) wp498.06 notice of the Labour Court that there is non-compliance on the part of the petitioner and the petitioner will not be entitled for any further claim regarding wages, for his own default. 10. The petition stands disposed of. The rule made absolute accordingly. [V.R. KINGAONKAR,J.] snk/2011/JAN11/wp498.06