Judgment:
ORDER
Majithia, J.
1. On the petition of respondent No. 1, Deputy Commissioner of Labour (Conciliation), Bombay, referred the following dispute for adjudication to the Labour Court :
'Whether the workman is entitled for reinstatement with full back wages and continuity of service with effect from March 7, 1985'?.
2. The 1st Labour Court, passed the following Award on August 18, 1995 :
'The Company to reinstate the workman with continuity of service with effect from 6/7 February 1985 with 50% back wages and other consequential benefits'.
3. The Petitioner-Management has challenged this award in this petition under Article 226 of the Constitution. The writ petition came up for hearing on January 9, 1996 and the following order was passed :
'Rule. Operation of the impugned order stayed subject to compliance of Section 17B of Industrial Disputes Act. Back wages be deposited in Fixed Deposit in any Scheduled Bank for period of three years within one month. If the petition is not disposed of in the meantime, the Fixed Deposit will be renewed for a further period of three years'.
4. It is disputed that the back wages as enjoined in the Award under challenge has been deposited from the date of termination of service to the date of passing of Award. The first respondent is not paid wages from the date of the Award. The claim in this Notice of Motion is only for payment of back wages, from the date of award.
5. The affidavit filed in support of this Notice of Motion by respondent No. 1 reads thus :
'I say that I am concerned workman in the above matter. I say that I am not gainful employed in any establishment in anywhere.
I further say that I am entitled to wages prevailing on the date of Award i.e., 18-10-1955 under the Section 17B of Industrial Disputes Act, 1947. I say that a workman of my seniority grade today is getting Rs. 7,000/- p.m. approximately as total emolument for a month. I, therefore, say that I am entitled to aforesaid wages per month from the Petitioner Company as provided under Section 17B of I.D. Act from the date of the Award every month during the pendency of the above Writ Petition'.
6. The Petitioner has filed affidavit in reply dated February 22, 1996. The petitioner has taken the following objections :
(i) The petitioner has led the evidence before the Labour Court that the first respondent was gainfully employed and that evidence was not taken into consideration by the latter while awarding reinstatement in service and back wages.
(ii) The first respondent was not earning Rs. 7,000/- per month.
(iii) The family members of 1st Respondent-workmen are economically well off and well settled and are capable of looking after the needs of the family members including the 1st respondent workman.
7. The first respondent has filed affidavit in which he has taken a positive stand that he is not gainfully employed in any establishment. The petitioner's contention that first respondent was gainfully employed was dealt with by the Labour Court observing thus :
'Learned Representative Mr. Ramrakhiani urged that the workman was employed some where and the Works Manager was examined in this Court who deposed that the workman was working somewhere else. In the past the workman has refused to work when temporary job was offered to him i.e., the same job which he has doing. Mr. Ramrakhiani relied on Executive Engineer v. Punabhai, reported in 1994 1 CLR 64, wherein it is held that :-
'A daily wager is not provided with the work throughout the year. Therefore while awarding back wages, the Court should try to find out for how many days the workman could have got the work and one of the methods that can is to find average of the last three years and direct payment of back wages on that basis. In this case, the workman had worked for 99 days in 1983, 76 days in 1984 and 53 days in 1985. Thus on average he had worked for 56 days in a year. Therefore, back wages should have been directed to be paid to him on the basis that he had worked for 78 days in a year.
In the result that this petition is partly allowed. The award passed by the Labour Court is modified to the aforesaid extent. Rule is made absolute accordingly with no order as to costs.
Therefore, while awarding back wages, the Court should try to find out for how many days the workman could have got the work and one of the methods that can be adopted is to find out average of last three years and payment of back wages on that basis. The workman had worked for 99 days in 1983 76 days in 1984 and 53 days in 1985. Thus, on an average he had worked for 76 days in a year. Therefore, back wages directions should be on the basis of 76 days in a year. Taking into consideration the above view, the workman will not be entitled to full back wages and will have to calculate average days in a year. Taking into consideration his employment for last three years before his termination. However, after hearing both the sides and in the interest of justice also granting 50% back wages to the workman in this matter would meet the ends of justice from the date of termination. In the result, my findings to Issue Nos. 1, 1(a), 2, 3 are in the affirmative, to Issue No. 4 that the workman is entitled to 50% back wages and continuity of service'.
8. A perusal of this observation indicates that the Labour Court's attention was invited to the evidence of the Management that the workman was gainfully employed and after nothing the same, he passed the order.
9. If the family members of the first respondent are economically well settled, it does not disentitle the first respondent to claim the relief of back wages to which he has been held entitled to by the Labour Court. We fails to understand that if the family members of the workman are well settled, this will disentitle the workman to claim reinstatement and payment of back wages as envisaged under section 17B of the Act.
10. The first respondent is entitled to back wages from the date of award as adjudicated thereunder. The petitioner has not disclosed in his affidavit as to what would be the due wages to the first respondent payable under the award. The information which was available with the petitioner has been deliberately with held from this court. The petitioner has all the relevant record and wages due to the first respondent has to be determined in accordance with the same and as adjudicated by the Labour Court.
11. The defence taken by the Petitioner-Company to deny the first respondent's claim for wages from the date of the award is not lacking in merit but bona fide too.
12. However, we make it clear that the petitioner-Company is entitled to take work from the first respondent. Hence, the following order.