S.S. Sudhalkar, J.
1. The petitioner is a workman of respondent No. 3. His services were terminated. He issued demand notice and the Labour Court ordered his reinstatement but did not allow back wages. This writ petition is qua back wages only.
2. We have heard learned counsel for the parties.
3. Counsel for the petitioner argued that the Labour Court has erred in not awarding the back wages. The Labour Court has observed that the petitioner had admitted that he is hale and hearty and has stout body and that he meets his expenses by doing labour job. This was the reason his claim for back wages was dismissed. Counsel for the respondent-Board argued that in view of the admission of the petitioner, it appears that the Labour Court has rightly declined the back wages. We do not agree with the reasons given by the Labour Court for denying back wages. Merely because the man has to survive and for that he may be doing labour job as the petitioner was doing, that will not mean that he is gainfully employed.
4. In the case of Rajinder Kumar Kindra v. Delhi Administration, AIR 1984 S.C. 1805 it has been observed by the Supreme Court as under:
“…In support of this submission Mr. Jain pointed out that the appellant in his cross-examination has admitted that during his forced absence from employment since the date of termination of his service, he was maintaining his family by helping his father-in-law Tara Chand who owns a coal-depot, and that he and the members of his family lived with his father-in-law and that he had no al-
ternative source of maintenance. If this is gainful employment, the employer can contend that the dismissed employee in order to keep this body and soul together had taken to begging and that would as well be a gainful employment. The gross perversity with which the employer had approached this case had left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny backwages on the ground that the appellant and the members of his family were staying with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law Tara Chand who had a coal depot, it cannot be said that the appellant was gainfully employed. This was the only evidence in support of the submission that during his forced absence from service he has gainfully employed. This cannot be said to be gainful employment so as to evidence on the record to show that the period of his absence from service.”
5. The petitioner was getting Rs. 1124/- per mon that the time his service was terminated. It cannot be presumed that he would get this much amount by doing labour work. The labour work may not be available every day. In view of the above reasons, we find that the Labour Court has erred in denying the backwages to Ihe petitioner,
6. As a result, this petition is allowed. The award of the Labour Court is modified to the extent that the petitioner will be entitled to back wages from the date of demand notice.
7. Petition allowed