1. Heard learned advocate for the petitioner. None is present for the respondent.
2. The petitioner, workman in reference being Reference LCK No.420 of 1993 in the Labour Court Kalol, has approached this Court under Articles 226 and 227 of the Constitution of India, challenging the award dated 01.10.2002, whereby the Labour Court did not award 100% of back wages while awarding reinstatement and only 35% of back wages.
3. The Labour Court while allowing the reference partly, recorded that the considerations to be borne in mind for awarding back wages did not justify granting of 100% back wages and hence granted 35% of back wages only.
4. Learned advocate Shri D.J.Bhatt has submitted that as per his information workman has not so far received any notice indicative of the fact that employer has challenged this award or not.
5. Learned advocate Shri Bhatt contended that the workman's earning out of selling buffalo's milk in the dairy cannot be classified in the gainful employment so as to negate awarding of 100% back wages. He submitted that the workman was in fact working in the department for collection of milk in the dairy itself and in absence of any proof that workman was carrying out this business only after his termination, there was no ground for denying the back wages.
6. This Court is of the considered view that the petition is required to be dismissed for the following reasons.
7. Learned advocate for the petitioner is correct in submitting that the income arising out of selling of milk could not have been subject matter of denying back wages. Had it been a sole ground in absence of any evidence that the animal rearing and/or animal husbandry was not part of the family business and/or it was only with a view to employ the workman that he had undertaking that activity, but if one looks at the reasoning of the Labour Court for denying the back wages it would become clear that what is weighed with the Court is the factum that workman has put in only one year of service prior to his termination and the statement of claim was only in the year 1994. The deposition of the workman could be recorded only in the year 1999. There exists no other material to indicate that the delay was not attributable to the workman and in that view of the matter, the Court is of the considered view that the award impugned cannot be said to be so perverse so as to call for any interference under Article 226 or even under Article 227 of the Constitution of India. The petition being bereft of merit, deserves rejection and is accordingly rejected. Rule is discharged. No costs.
Pankaj (S.R.BRAHMBHATT, J.)