JUDGMENT
Rajesh Balia, J.
1. A very short issue is raised in this petition. Petitioner No. 2 Logar Mal who is alleged to be member of petitioner No. 1, a registered trade Union, was appointed as a helper in the employment of Department of Mines and Geology, Govt. of Rajasthan, Udaipur in the Year 1970. His services were terminated by the order dated 16.8.1976. An industrial dispute was raised in respect of the termination of the petitioner No. 2 and the following dispute was referred:
D;k ;akf=d vfHk;Urk] [kku ,oa HkwfoKku foHkkx] mn;iqj }kjk muds Jfed Jh yksxjey rsy dks ¼ftldk izfrfuf/kRo Hkkjrh; ekbZfuax foHkkx deZpkjh la?k] mn;iqj us fd;k gS½ lsok ls i`Fkd djuk mfpr ,oa Bhd gS\
2. In the said reference, award was passed on 25.11.1980 in favour of the petitioner No. 2 holding that the termination order was invalid. According to the award, the employee was not entitled to back wages with effect from 16.8.76 to the date of reinstatement provided he is reinstated with one month from the date of the publication of the award by the Employer. It was further envisaged that failing reinstatement within the stipulated period, the employee will be entitled to full back wages for the period with effect from the date of termination to the date of reinstatement. Aggrieved-with the aforesaid order, the petitioners have filed this writ petition challenging the denial of back wages as a necessary consequence of reinstatement.
3. A return has been filed on behalf of the respondents stating that since the petitioner has been reinstated with in the stipulated period of one month from the date of publication of the award, he is not entitled to back wages in terms of the award. It has further been averred that after his reinstatement his services have been terminated by the order dated 27.9.1983 on account of the fact that he remained continuously absent form the work for which a detailed chart has been submitted in reply to the writ petition. It has further been submitted that petitioner has not made any averment in his writ petition that he was not gainfully employed during the period from termination of his services to the date of the reinstatement, and, therefore, in terms of the provisions of Section 17B of the Industrial Dispute Act, the petitioner is not entitled to grant of back wages. The law in this connection is trite that normally, rule of reinstatement is full back wages whereas at the same time, it has also been recognised that in particular circumstances of each/case, the Court may be induced to modify the direction in regard to the quantum of the back wages payable. In this connection, reference may be made to a decision of their lordships of the Supreme Court in Gujarat Steel Tubes Ltd. etc. etc. v. Gujarat Steel Tubes Mazdoor Sabha and Ors. wherein it was observed as under:–
The discretion to deny reinstatement or pare down the quantum of back wages is absent gave for exceptional reasons. However particular circumstances of each case may induce the Court to modify the direction in regard to the quantum of back wages payable. Though the normal rule, on reinstatement is full fack wages since the order of termination is non est, even so, the industrial Court may well slice off a part if the workmen are not wholly blameless or the strike is illegal and unjustified. To what extent wages for the long Interregnum should be paid is, therefore, a variable dependent on a complex of circumstances.
4. Coming to the present case on the one hand, there is a direction of the labour Court itself that in case, the employee is not reinstated within one month of the publication of the award, he is entitled to full back wages which is suggestive of the intention of the Labour Court about the denial of back wages only in the event of prompt reinstatement and on the other hand, the peculiar circumstances emerging from the record are that termination of the petitioner earlier was also on account of his alleged absence from duty and even after reinstatement, the petitioner has ultimately been found guilty of wilful absence from duty. Gainful employment during the period when termination order remained in force is also a relevant factor which has to be taken into consideration before award of full back wages. In the absence of any evidence for or against the gainful employment of the petitioner No.2 During the period when his termination order was in force in the ordinary course, it would have been appropriate to direct the Labour Court to examine the issue and pass appropriate order in this regard. However, taking into consideration the facts and circumstances of this case and the suggestion from the counsel for the parties that instead-of remanding the case back to the labour Court for deciding the issue of back wages, this Court may pass as appropriate order about slicing down the back wages.
5. I, deem it just and proper to modify the award passed by the Labour Court, Uaipur to the extent that petitioner No. 2 will be entitled to fifty percent of the emoluments for the period from 16.8.1976 to the date of his reinstatement i.e. 29.4.1981, which he would have got, had he remained in service.
6. With this modification in the impugned award dated 25.11.1980 (Ex. 1), the writ petition is disposed-of.