ORDER 1. By this petition under Articles 226 and 227 of the Constitution of India the petitioner has assailed the award dated 28.11.1992 (Annexure C) passed by the Presiding Officer. Labour Court. Sagar, whereby respondent No. 2 workman has been directed to be reinstated with full back wages. 2. The petitioner is a Municipal Corporation (in short 'the Corporation'). Since the services of respondent No.2 (hereinafter referred to as 'the workman') were terminated de hors to the Labour Laws, he availed the remedy provided under the Industrial Disputes Act, 1947 (in short 'the Act') and the matter was referred to the Labour Court by the appropriate Government. Before the Labour court the parties submitted their statement of claims. According to the workman, he was appointed on the post of Pump attendant w.e.f. 4.1.1987. His work was satisfactory. The petitioner without assigning any reason, all of a sudden, terminated his services on 27 .6.1988. According to the workman, no notice was issued to him, opportunity of hearing was also not provided and against the principles of natural justice, his services were terminated. According to the workman, the action of petitioner terminating the services is nothing but unfair labour practice. The stand of workman is that since he had served for more than 240 days in a calender year, therefore, without adopting the procedure as contemplated under section 25-F of the Act, 1947 his services have been illegally terminated. The workman, thus, prayed for his reinstatement with full back wages. 3. The petitioner also submitted its statement of claim refuting the averments made by the workman. According to the petitioner, the workman was a muster roll employee and was a daily wager. On account of completion of the work, his services were terminated automatically. It was prayed that the claim of the workman be dismissed. 4. The Labour Court, on the basis of the pleadings of the parties, framed necessary issues and recorded the statement of the workman. On behalf of the petitioner, one Vishnu Prasad Tiwari was examined. The Labour Court, on the basis of the evidence, came to hold that the action of the petitioner terminating the services of workman is in contravention to section 25-F of the Act, as a result of which directed the petitioner to reinstate the workman with full back wages. On behalf of the petitioner, one Vishnu Prasad Tiwari was examined. The Labour Court, on the basis of the evidence, came to hold that the action of the petitioner terminating the services of workman is in contravention to section 25-F of the Act, as a result of which directed the petitioner to reinstate the workman with full back wages. The Labour Court further directed the petitioner to make the payment of the wages admissible to the Pump Attendant, to him. Hence this petition. 5. It has been argued by Shri Samaiya, learned counsel for the petitioner, that the Labour Court has erred in law by passing the impugned award. According to learned counsel, the workman has failed to prove that he had worked for 240 days in a calender year and, .therefore, the order of reinstatement has been erroneously passed by the Labour Court. An alternative submission has also been put forth by him that in his statement of claim the workman has not pleaded that after his termination he was not gainfully employed nor there is any adjudication in that regard by the Labour Court and, therefore, the Labour Court erred in law by passing the award of full back wages. Learned counsel has also submitted that the Labour Court exceeded its jurisdiction by directing the petitioner to pay the wages of Pump Attendant to the workman. According to him this point was not referred to the Labour Court by the appropriate Government. 6. On the other hand, teamed counsel for the respondent/workman argued in support of the impugned award. 7. After having heard learned counsel for the parties. I am of the view that this petition deserves to be allowed in part. 8. So far as the contention of learned counsel for the petitioner that Labour Court erred in law by passing the award of reinstatement, it is found to be devoid of any substance. The Labour Court after scrutinizing the evidence of workman as well as the evidence of petitioner's witness Vishnu Prasad Tiwari arrived at a finding of fact that workman was appointed on 4.1.1987 and his services were terminated on 27 .6.1988. Thus, the workman had served more than 240 days in a calender year. This is a pure finding of fact. Admittedly no enquiry was held against the workman before terminating his services. Thus, the workman had served more than 240 days in a calender year. This is a pure finding of fact. Admittedly no enquiry was held against the workman before terminating his services. The provisions of section 25F of the Act were also not complied with. Though the stand was taken by the petitioner that the workman was a casual labour and his services were terminated automatically, but no record or document was filed on that behalf by the petitioner. Admittedly, the petitioner was possessing the entire service record of the workman. Since nothing has been placed on record in that regard, the finding of the Labour Court holding that the action of the petitioner terminating the services of workman is in contravention to section 25F of the Act, is not required to be interfered. The said finding of Labour Court reinstating the workman is hereby affirmed. 9. Now I shall deal with the alternative submission of learned counsel for the petitioner. There is substance in. the submission of Shri Samaiya, learned counsel for the petitioner, that the workman is not entitled for the back wages. On going through the statement of claim (Annexure-A) filed by the workman, it is found that no where he has pleaded that after the terminating of his services, he has not been gainfully employed. The burden of proof was on the workman to prove that he remained unemployed after the termination of the, service. In his entire statement of claim there is no whisper in that regard. On going through the award passed by the Labour Court, it is gathered that the Labour Court has not held that the workman remained unemployed after he was terminated from his services. In absence of any pleading in that regard by the workman. I am of the view that the Labour Court erred in law by passing the award of full back wages. Apart from this, it has come in the order of the Labour Court that the workman was only a daily rated employee. In the case of General Manager, Haryana Roadways v. Rudhan Smgh. 1 (2005) 5 SCC 5911. it has been held by the apex Court that there is no rule of thumb that in every case where Industrial Tribunal gives finding that termination of service was in violation of section 25F of the Act of 1947, entire back wages should be awarded. 1 (2005) 5 SCC 5911. it has been held by the apex Court that there is no rule of thumb that in every case where Industrial Tribunal gives finding that termination of service was in violation of section 25F of the Act of 1947, entire back wages should be awarded. The apex Court further held that award of back wages should not be passed in a mechanical manner and the relevant factors like qualifications of the workman, his length of service and availability of alternative work should be taken into consideration. Looking to the fact that the workman was a daily rated employee and had served in between 4.1.1987 to 26.6.1988 and particularly when the workman has not at all pleaded that he remained unemployed after his termination from service, I am of the view that he is not entitled for the back wages. Thus, the award of the Labour Court directing the petitioner to pay full back ages to the workman is hereby set aside. 10. There is merit in the contention of Shri Samaiya, learned counsel for the petitioner, that the Labour Court exceeded its jurisdiction by directing the petitioner to pay the regular wages of the Pump Attendant to the workman. It be seen that this point was not referred to the Labour Court. Thus, the question which was not referred to the Labour Court, the Labour Court was not having any jurisdiction to pass the award directing to pay the wages of Pump Attendant to the workman. The workman is entitled to be reinstated as daily wager and on the same post which he was enjoying prior to the termination of his services. 11. Resultantly, this petition succeeds in part. The award of the Labour Court so far as it relates to reinstatement is hereby affirmed and rest part of the award is hereby set aside. However, the workman shall be entitled for the wages from the date of the award dated 28.11.1992 passed by the Labour Court. Looking to the facts and circumstances, the parties are directed to bear their own costs.