J.S. Narang, J.

1. Pursuant to order dated 6.10.2004, the Court file of C.W.P. No. 7915 of 1987 has been perused. This petition pertains to different management than the case in hand, as such, there is no similarity or nexus with the aforestated petition.

2. The petitioner was in the service of respondent No. 1 for more than 3 years and he was drawing a monthly salary of Rs. 396/-. On 13.6.1981, his services were terminated on the premises that he had illegally participated in a strike. An industrial dispute was raised and the order of termination became the subject matter of challenge. The petitioner submitted his statement of claim and the plea raised was that his services were terminated without any charge sheet, enquiry, notice or payment of compensation as envisaged under the provisions of the Industrial Disputes Act. 1947 (hereinafter referred to as the). The management contested the claim of the petitioner and took the plea that the services of the workman had been terminated as he was temporarily employed. An alternative plea had been taken that in fact the workman had abandoned his job and he was gainfully employed elsewhere. Upon the pleadings of the parties, the issues had been framed which read as under:-

"1) Whether the termination of services of the workman is justifiable at law and in order

2) Whether the workman has been gainfully employed

3) Relief."

3. The Labour Court has given a categoric finding that the workman had not been given the appropriate opportunity to prove his conduct. Thus examining the act of the management from any angle, the termination of the services of the workman has not been held to be justified. Resultantly, issue No. 1 has been decided in favour of the workman. As a sequel thereto, the petitioner has been granted the relief of reinstatement.

4. So far as the claim of back wages is concerned, tainted with the rigour of gainful employment, the Labour Court has categorically observed that the workman had deposed that he remained unemployed ever since the termination of his services. His statement has not been demolished by the management by producing the contrary evidence. It is the settled law that if a statement is not demolished by way of cross examination or otherwise production of contrary evidence, the benefit has to be given to the claimant. It is on these premises the Labour Court has definitely held that the workman was not gainfully employed ever since the termination of his services. However, while considering to grant the relief of back wages, it has been observed that the demand notice was submitted more than 13 months after the order of termination and further the workman had proceeded on strike without demand notice or leave in May, 1981 without handing over the charge. These circumstances and the factual corroborations added weight and that the Labour Court has come to the conclusion that the workman has himself abstained from the work, therefore, his claim of back wages cannot be allowed.

5. Learned counsel for the petitioner has argued that the Labour Court has made a contradictory observation. Because, it has been categorically observed that the petitioner had not been given the appropriate opportunity to prove his conduct, and therefore, the order of termination is bad in law. If that be so, it cannot be accepted that the workman himself abstained from the work. Thus, the Labour Court ought to have granted full back wages once it has been categorically held that the order of termination is illegal and is void. He has placed reliance upon a judgment of this Court rendered in re: Teja Singh and Ors. v. Nihal Singh Wala Cooperative Agriculture Service Society Ltd. and Anr., 2003(4) S.L.R. 51.

6. I have heard learned counsel for the petitioner and have perused the paper book, and am of the considered opinion that the Labour Court has erred in not granting the relief of back wages to the workman, especially, in view of the fact that the order of termination of the services of the workman has been held to be illegal and unjustified on the premises that he had not been given the appropriate opportunity to prove his conduct. I am in respectful agreement that the aforestated dicta of this Court in Teja Singhs case (supra).

7. Resultantly, the petition is allowed and the award dated 17.6.1987 is modified to the extent that the petitioner shall be entitled to the full back wages from the date of termination till the reinstatement has been granted and of course with all consequential benefits.