ORDER Arun Mishra, J. 1. This writ petition has been preferred by the Management of Western Coalfields Ltd. (hereinafter referred to as WCL), Pench Area, aggrieved by an award dated 27th June, 1990 passed by the Central Government Industrial Tribunal, Jabalpur, directing employment of 301 workers from 21-6-1980 with backwages and cost of Rs. 5000/-. 2. It is averred in the petition that WCL is a company registered under the Companies Act. Company is the owner of various Coal Mines. Digwani Quarry of Pench East Colliery was one of the mines owned by the WCL. The Samyukta Khadan Mazdoor Sangh (AITUC) raised an industrial dispute with the Asst. Labour Commissioner (Central) Chhindwara. Conciliation had failed. Central Government referred the dispute for adjudication to the Central Government Industrial Tribunal (CGIT) as per order (A) dated 18th June, 1982 - "Whether refusal of the management of Pench East Colliery of Western Coalfields Limited in Pench Area, PO Parasia, District Chhindwara to provide work to Sri Ramjanam and 300 other truck loaders (whose names are given in annexure) employed at their Dighwani Quarry and to regularize them as colliery workers is lawful and proper? If not, to what relief are these workmen entitled?" 3. The Workers' Union in their statement of claim submitted that the labourers were engaged for loading and unloading the trucks. The Management of Pench Area is part and parcel of WCL and started mining operation in the open cast quarry/ mines from April, 1979 numbering 5 in all. These mines were situated on both the sides of river Pench. In April, 1979 new coal basin was struck to the relief of workmen, though operation in the 5 quarries was started, first the operation of removing of over burden, then of coal production. For removal of over burden the use of bulldozers was freely made. Machine was hired on contract. In the operation of over burden private persons who were not employee of Management were allowed to work in Mines in violation of the provision of Mines Act, 1952. The Union has further contended that for coal raising and dispatch the workmen in the schedule picked pieces of coal big and small from the area of Mine that was blasted and loaded then in the trucks, which were waiting there itself near the pit. The Union has further contended that for coal raising and dispatch the workmen in the schedule picked pieces of coal big and small from the area of Mine that was blasted and loaded then in the trucks, which were waiting there itself near the pit. The Management did not deliberately keep any statutory register nor payment register in accordance with the provisions of Mines Act, 1952 and Wages Act, 1936. Management tried to remove the workman from their services. 37 of them were removed. Union took up their case and by an arbitration award they were provided the jobs. The Union has further contended that workers were utilized to load the trucks. Large number of trucks, which were brought to the quarry by the consumers, were filled by these workers. The Management has been prosecuted for removing over burden through Contractor. The Management is continuing to do this, because if proper attendance of truck loaders is maintained, then they would have to give proper account of the coal raised, wages and allowances paid and these workmen would have to be regularized in accordance with law. It was prayed that 300 workers be regularized as colliery workers w.e.f. 1979. 4. Management submitted their reply to Statement of Claim (B). It was contended that reference is bad in law and has been made without application of mind and mechanically. It was submitted that there was no employer-employee relationship between the 301 individuals and Management of Colliery. They were outsiders having no connection with the Coal Industry. Management also denied that the individuals were Truck Loaders "employed by it in Digwani Quarry. All the purchasers used to bring their own Trucks and their own employees. These persons were not employed by the Management. 5. The CGIT has framed the issue to the effect that - Whether Ramjanam and 300 other employees named in the schedule, were employees of WCL Ltd. in the Pench Area; whether services of these 301 workmen were terminated by the management of the WCL and they have not been provided any work; whether they are entitled to be regularized. The CGIT has found that the refusal of Management of Pench East Colliery of WCL, action of not providing opportunity to work to Shri Ramjanam and 300 other truck loaders, whose names are given in Annexure to the schedule of reference and to regularize them, is not lawful and proper. The CGIT has found that the refusal of Management of Pench East Colliery of WCL, action of not providing opportunity to work to Shri Ramjanam and 300 other truck loaders, whose names are given in Annexure to the schedule of reference and to regularize them, is not lawful and proper. They are entitled to be employed as truck loaders in the similar capacity, they be reinstated with backwages and all consequential benefits. 6. Shri P. S. Nair, Sr. Counsel with Shri Sandeep Aole, Adv. appearing for the petitioner has submitted that there was no employer-employee relationship; hence CGIT has erred in law in directing reinstatement of workers. He has further submitted that the finding recorded by the CGIT is perverse. He has submitted that workers have been reinstated pursuant to the award passed by the CGIT and the interim orders issued by this Court but they have no right. He has submitted that reference itself was not properly framed by the Govt, of India. While making the reference, the employees were treated to be in the employment, of the petitioner, which was not proper. In any case grant of backwages cannot be said to be proper and justified, no finding has been recorded that workmen were not gainfully employed elsewhere. Question of gainful employment has not been gone into by the CGIT, hence award of backwages cannot be said to be proper. 7. First coming to the question of employer-employee relationship. Firstly the 37 truck loaders with respect to whom the arbitration was held, an award was passed by the Arbitrator in favour of those 37 persons. Thereafter similar action was taken against the employees mentioned in Annexure to the schedule of reference. Oral evidence of three witnesses Shri R. K. Mahajan (MW-1), Shri B. B. Singh (MW-2) and Shri H. Singh (MW-3) has been appreciated by the CGIT. Shri R. K. Mahajan (MW-1) has stated that names have not been mentioned in statutory register whereas as per inspection report Ex. (W-3) when the quarry was inspected on 28-4-1980 by Dy. Director, Mines and Safety, presence of workers working in site was not marked till June, 1980. Thus it is clear that Management has resorted to unfair Labour practice as apparent from the Inspection Report (W-3). (W-3) when the quarry was inspected on 28-4-1980 by Dy. Director, Mines and Safety, presence of workers working in site was not marked till June, 1980. Thus it is clear that Management has resorted to unfair Labour practice as apparent from the Inspection Report (W-3). It is also clear that fully mechanized machines were used for removal and loading the coal; drilling and blasting of coal was also done by machine. It is stated that attendance of persons operating the machines have been recorded. He has submitted that mine was stopped under section 22 of the Mines Act for safety reasons as per Exs.(W-1) to (W-5). The witnesses could not state who was the owner of these trucks which were loaded at the quarry by mechanical process. Shri B. B. Singh (MW-2) in the course of cross-examination admitted that trucks which were loaded by mechanical means, belonged to Contractors. He admitted that Contractors were engaged for transportation of coal but he could not state whether any license under Contract Labour (Regulations and Abolition) Act, 1970 was taken for appointment of Contractor. He has further admitted that because of sudden technical irregularity, mine was directed to be closed in April, 1980. The Management has maintained list of drivers and Khalasis supplied by the contractors. The Management did not maintain the record of employees employed by the Contractors. Statement has been assessed in extenso by the CGIT. Apart from that Hanumant Singh (MW-3) has stated that case of 37 workers was different, however, it has been found by the CGIT that case of 37 workers was that of truck-loaders only as apparent from (W-24) and (W-25). The witness contradicted (MW-2) and stated that private trucks did not enter the quarry. The trucks would go only upto the dumping yard from where they lifted the coal, hence it is clear that in case the version of the witnesses to be relied upon none of the private trucks entered inside quarry and the Management had its own trucks to ply. Truck did not go to the place where the operation was carried on. The nature of the operation has also been considered by the CGIT as per deposition of Dayaram (MW-1), after blasting, big pieces of coal had to be cut into the small pieces. Coal produced was to be loaded by the truck-loaders. Truck did not go to the place where the operation was carried on. The nature of the operation has also been considered by the CGIT as per deposition of Dayaram (MW-1), after blasting, big pieces of coal had to be cut into the small pieces. Coal produced was to be loaded by the truck-loaders. There were about 350 truck-loaders, who were working in the quarry and were supervised by the Officers of WCL. Thus, it is clear that workmen were working in the supervision of WCL. Without working of the truck-loaders, the coal produced in the quarry could not be transmitted out of the quarry. He stated that in Para 3 of the deposition during cross examination that payment of these truck-loaders was made from payment window of the colliery office. Lateef (WW-2), one of 37 truck-loaders who were reinstated by the Arbitrator, has stated that 300 persons were working along with him. Statement of Rajendra (WW-3) and Rajkumar (WW4) also indicate that they were truck loaders. They served in the year 1979. Their services were discontinued in the year 1980. Their names were not entered in the statutory register, is the case set up from the beginning and found correct by the Dy. Director, Mines and Safety. These truck-loaders were employed in the colliery itself. The report, of Dy. Director has been elaborately discussed by the CGIT. 8. I find that in the discussion there is no infirmity. It has been found that unlawful transportation of coal was carried out from the colliery and for this reason unauthorized persons were permitted to enter in the Mines along with trucks. For that reasons attendance of workers was not recorded in the relevant registers, hence relationship has been denied unjustly by the Management. No record as to entry and exit of the trucks was maintained as stated by (MW-2). It was also done so as to illegally take out the coal. R. K. Mahajan (MW-1) has stated that Director of Mines had observed that number of trucks inside the quarry for the purpose of transportation should be regularized because of an accident of a helper had taken place. It was also done so as to illegally take out the coal. R. K. Mahajan (MW-1) has stated that Director of Mines had observed that number of trucks inside the quarry for the purpose of transportation should be regularized because of an accident of a helper had taken place. The work used to be done by 301 workers, they were also used for general work of removal of over burden, cleaning of place and other miscellaneous jobs within the mine area and inside the quarry when the trucks were not reached for loading as apparent from statement of Shri P. K. Banerjee (WW-5). When protest was raised by the Union about the illegal activity of the Management, mine was closed. It is apparent that 37 workmen who were reinstated, their cases were similar. Only persons permitted by the Management could enter inside the Pench East Quarry. However, illegal loading was taking place. Union right from beginning has set up a case that 301 workmen were employed by the Management. It is not an afterthought, even in the notice this fact was mentioned. They were working at the site of the quarry, loading the coal at the pit. Workmen are covered under the definition of Workman's definition in section 2 of Contract Labour (Regulation and Abolition) Act, 1970. Work is of parallel in nature and generally done by the workman in regular employment and part and parcel of manufacturing process of goods. The CGIT has given the finding thus :- 60. The discretion which an Industrial Tribunal has must be exercised in accordance with the well recognized principle. There is undoubtedly a distinction between Commercial and Industrial Arbitration. As has been pointed out by Ludwig Teller Labour Dispute and Collective Bargaining Vol. I page 536, "Industrial arbitration may involve the extension of an existing agreement, or the making of a new one, or in general the creation of new obligations or modifications of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements." "A Court of law proceeds on the footing that the power exists in the Courts to make contracts few people; and the parties must make their own contracts. The Courts reach their limit of power when they enforce contracts which the parties have made. The Courts reach their limit of power when they enforce contracts which the parties have made. An Industrial Tribunal is not so fettered and may create new obligations or modify contracts on the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimization. We cannot, however, accept the extreme position canvassed before us that an industrial Tribunal can ignore altogether an existing agreement or existing obligations for no rhyme or reason whatsoever (Rohtas Industries Ltd. v. Brijnandan Pandey and Others, 1956 XI LLJ 444 ). This is a case where labourers were exploited by the management (as also by contractor, if any). Though this Court has not held so and not only their names were not found in any of the statutory registers but also it was falsely averred by the management that no such workers were working at the site for loading of trucks which is a work of perennial nature and was performed under the direct control of the management. 64. Various tests have been applied to find out the relationship of employer and employee. In the modern world industrial operations have become complex and complicated and for the efficient successful functioning of any industry several 'incidental' operations are called in aid and it is the totality of these operations that ultimately constitutes the industry as a whole. Proof of existence of relationship can be made out as fairly and fully by circumstantial evidence as it can be by evidence which is direct. While the employee, at the time, when his services were engaged need not have known the identity of employer, there must have been some act or control by the parties recognized one and another as master and servant (see page 471 Malhotra, Vol. 1). 65. In order to determine the existence of relationship of independent contractor or employee "few problems in the law have given greater variety than the case arising on the borderline between what is clearly an employer-employee relation and what is clearly an independent entrepreneurial dealing", for "it is often easy to recognize a contract of service when you see it, but difficult to say where the difference lies". Problems of this kind have come before the Courts with the advent of social legislation in England during the last ninety years and in India during the last Fifty years. Problems of this kind have come before the Courts with the advent of social legislation in England during the last ninety years and in India during the last Fifty years. Consequently, a considerable body of case law has developed under the recent social welfare legislation. There has been extraordinary variety of relationship while have come in force at one time or another, and it is now clear that it is impossible to define a contract of service in the sense of stating a number of conditions, which are both necessary to, and sufficient, for the existence of such a contract. This position has been succinctly stated in the American Jurisprudence. It is the element of contract of the work that distinguishes the relationship of master and servant from the independent contract relationship. The most important test in determining whether one employed to do certain work is independent contract or mere servant is the control over the work which is reserved by the employer. Thus the most satisfactory test is to ascertain as to who is the employer at any particular time is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged. 68. What in fact matters is lawful authority to command so far as there is scope for it. And there must always be some room for it if only in incident or collateral matters. The question, therefore, is not whether the control is exercised, it is where is the right of control? And the distinction between the physical control and the right of control is important. The control includes the powers to decide the term, the way it will be done, the means employed in doing it, the time and place where it shall be done. All these aspects of control must be considered in deciding whether the rights exist in a sufficient degree to make one party a master and the other his servant. However, it has for long been apparent that analysis of the extent and the degree of such control is not in itself decisive. It is left to the Courts of law to decide what the contract of employment or service is in the circumstances of each case. 69. However, it has for long been apparent that analysis of the extent and the degree of such control is not in itself decisive. It is left to the Courts of law to decide what the contract of employment or service is in the circumstances of each case. 69. Halsbury describes the tests "to distinguish between an independent contractor and the servant, the rest is whether the employer remains the power, not only of directing what work is to be done, but also of controlling the manner of doing the work. If a person can be overlooked and directed in regard to the manner of doing his work, that person is not a 'contractor' (Halsbury's Laws of England, 3rd Edn. Vol.25 p.498). (See Malhotra, Vol. 1 pages 470 to 477). 70. In the instant case, the workman concerned could enter into the quarry i.e. at the specified place, at the time given by the principal employer for certain period and they had to pick up the coal under the supervision and control of management and load it in the trucks as directed by the principal employer. Thus the principal employer had full control, not only on the work but the manner of work, the place of work and the time of work and obviously the work is of perennial nature. Thus even assuming that these workmen were contractors workmen, they must be treated as workmen of the principal employer in the circumstances of this case and in the light of law discussed above. 9. I am in agreement with the observation and the findings recorded by the CGIT. The CGIT has further held that services were stopped due to closure of Mines/Closure. 74. Issue No. 1(B), (C) and Issue No. 2 :- Having held that the workmen under reference were employees of the Western Coalfields Limited in the Pench Area, Parasia, District Chhindwara and they being no more in service it follows that either their services were stopped due to the closure of the mines/quarry for three months or were terminated by the management. It is obvious that the management did not provide them work rather refused to provide them work else they would not have come before this Tribunal for adjudication in the matter. 75. It is obvious that the management did not provide them work rather refused to provide them work else they would not have come before this Tribunal for adjudication in the matter. 75. From the statement of W.W.5, P. K. Banerjee, Para 17, it is evident that large number of persons were employed thereafter and this fact is evident from the documents Ex. W/28 to Ex. W/35. As per Ex. W/27 the then Chairman, Shri Laxmanan, had entered into an agreement on 17-7-1985 agreeing to give employment to all casuals. As per Ex. W/28 it was directed that casuals are not required to get their names sponsored through the Employment Exchange. As per Ex. W/29 dated 2-1-1979, the R.C.C. (Central) had drawn the attention of C.L.C. (Central) showing the irregularities being committed to sizeable number of workers in different collieries. As per Ex.W/37 the case of these 301 workers was to be considered by the Deputy Chief Personnel Manager and this fact finds place in Ex.W/27 also. Western Coalfields Limited is a vast concern and is not confined to Pench area collieries alone, but at different other places in M.P. and Vidarbha Region of Maharashtra. Thus there is clear violation of section 25H or in any case of section 25FFF and 25FFA because the said quarry was closed down without any notice to these workmen or giving them compensation as envisaged in section 25FFA and section 25FFF, for these workmen had already worked for more than one year. In any case these workmen concerned should have been offered work first before employing others. As per section 25H of I.D. Act which reads as under, they are entitled to the same :- 25-H. Re-employment of retrenched workmen. - Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity "to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen" who offer themselves for re-employment shall have preference over other persons. In view of the accepted policy of the management these workmen should have been given work. This was not done. Thus they are entitled to be employed as truck loaders or in any other capacity equivalent to the same either in the Pench Valley area or other area under the Western Coalfields Limited. In view of the accepted policy of the management these workmen should have been given work. This was not done. Thus they are entitled to be employed as truck loaders or in any other capacity equivalent to the same either in the Pench Valley area or other area under the Western Coalfields Limited. In this view of the matter, Central Government is, obviously, appropriate Government to make this reference. 10. Shri Nair has submitted that workmen have reinstated as per the interlocutory orders passed by this Court. A Division Bench of this Court has passed an order on 11-2-1991 to the following effect:- Shri P. S. Nair for the petitioner. Shri N. C. Jain for respondent No. 1. Shri N.C. Jain, counsel for respondent No. 1 brought to our notice that the petitioner has not complied the orders of this Court dated 13-11-1990 whereby the petitioner was directed to take the labourers in the employment. Shri Nair appearing for the petitioner states that the petitioner is prepared to reinstate the 301 employees but the same could not be done as they are not in possession of respective addresses of those 301 employees. Shri N. C. Jain submits that the order of reinstatement- be delivered to the authorized representative of the Union, respondent No. 1. It is directed that the petitioner shall issue the reinstatement orders in favour of 301 employees and the same shall be delivered to the authorized representative of the respondent No. 1, through General Secretary of the respondent union within 15 days and in case of any difficulty of identification, the representative of the Union respondent No. 1 shall identify the labourers-employee. They are also heard on LA. No. 986/91. Counsel for the respondent does not press the same. The petition be listed after 15 days for admission. C.C. to parties. 11. On 5-3-1991 further directions were issued by this Court, which is quoted below:- Shri P. S. Nair for the petitioner. Shri N. C. Jain for the respondents. Heard on admission. Admit. Security Rs. 250/- to be deposited within one month and identical copies also within the same period. They are heard on LA. C.C. to parties. 11. On 5-3-1991 further directions were issued by this Court, which is quoted below:- Shri P. S. Nair for the petitioner. Shri N. C. Jain for the respondents. Heard on admission. Admit. Security Rs. 250/- to be deposited within one month and identical copies also within the same period. They are heard on LA. No. 1428/91 which is an application made on behalf of the petitioner for modification of the order dated 11-2-1991 wherein it has been directed that, the petitioner shall issue the reinstatement orders in favour of the 301 employees and the same shall be delivered to the authorized representative of the Sangh, respondent No. 1, and in case of any difficulty Of identification the representative of the Union shall identify the labourers concerned. In the application under consideration, the petitioner has expressed the willingness to employ 301 workers but none of the employees are approaching the Management to receive the reinstatement orders although the reinstatement orders have already been passed and the delivery of the reinstatement letter to the representative of the respondent union is likely to result in delivering the same to a wrong person as the Management apprehends that a large number of persons mentioned in the award are now really not in existence. Having regard to the facts, the order dated 11-2-1991 is modified only to the extent that the said 301 employees who are directed to be reinstated shall approach the Management and secure the letter of reinstatement personally from the Management and in case of any difficulty in the identification of a particular employee the Union representative shall identify the labourers/employee. It is, however, made clear that even after the reinstatement order is issued to any labourers/employee and if the Management entertain any doubt about his identity, the Management would be free to verify from their own sources. C.C. as per rules to parties. 12. Further order was passed by this Court into the question of identification and reinstatement of workmen on 29-10-1991 to the following effect:- Shri P. S. Nair for the petitioner. Shri P. P. Naolekar with Shri R. M. Shukla for the respondent No. 1 Union. Heard on LA. No. 8046/91 for modification of the order passed by this Court on 5-3-1991. Further order was passed by this Court into the question of identification and reinstatement of workmen on 29-10-1991 to the following effect:- Shri P. S. Nair for the petitioner. Shri P. P. Naolekar with Shri R. M. Shukla for the respondent No. 1 Union. Heard on LA. No. 8046/91 for modification of the order passed by this Court on 5-3-1991. Learned counsel for the respondent No. 1 Union states that the order passed by this Court on 13-11-1990 directing re-instatement of the workmen has not been complied with and several hurdles are being created by directing their identification, medical check-up and they are being asked to join in collieries outside the State. Learned counsel for the petitioner employer states that on the basis of the award of the Labour Court, the employer has a choice to reinstate workmen at any place where it vacancies. Having heard learned counsel for the parties, we directed that during the pendency of the petition, the workmen represented by the respondent No. 1. Union, whose termination has been set aside by the Labour Court, shall be reinstated at the places from where they were terminated or in the same "pench area of W.C.L.". So far as identification of workmen is concerned, directions have already been issued by orders passed by this Court on 11-2-1991 and 5-3-1991. No further orders in that regard are necessary to be passed. It is, however, directed that no other formality of photograph or medical check-up will be insisted by the employer. With the above observations, the application for modification of the order dated 5-3-1991 is disposed of. C.C. as per rules. 13. Yet another order was passed by Division Bench of this Court on 5-12-1991 after hearing the parties thus:- Shri P. S. Nair for the petitioner. Shri P. P. Naolekar with Shri R. M. Shukla for the respondent No. 1 Union. Heard on LA. No. 9238/91 for modification of the order dated 29-10-1991. Submission on behalf of the petitioner is that by the impugned award, under challenge, the workmen numbering 301 have been directed to be reinstated with back-wages and in compliance of section 17-B of the I.D. Act, the petitioner as an employer, has a choice to reinstate the workmen at any place of work in the area of the Western Coalfields. Submission on behalf of the petitioner is that by the impugned award, under challenge, the workmen numbering 301 have been directed to be reinstated with back-wages and in compliance of section 17-B of the I.D. Act, the petitioner as an employer, has a choice to reinstate the workmen at any place of work in the area of the Western Coalfields. It is pointed out that in Pench area and in all coalfields in the State of M.P., there are already surplus labourers and the company is incurring loss. The employer, therefore, should be permitted to reinstate the workmen in Maharashtra coalmines, such as Wani, Chandrapur and Ballarpur. Learned counsel appearing for the workmen submits that the same request made on earlier occasion was considered by this Court and rejected. Therefore, the same request cannot be reiterated again and again. In reply, it is also submitted that reinstatement, is being delayed for want of one or the other excuse to deprive the workmen of work and their salary, although the order of this Court is of the year 1990. It is further submitted that in case, there is surplus labourers in M.P. area at Pench Valley, the employer has a choice, if permissible, to transfer the workmen, who were appointed in place of the present workmen, who were terminated and now reinstated by the award. On behalf of the workmen, the submission is that since their services were retrenched from Pench Valley, they have a right to be reinstated at that place. We have perused the contents of our earlier order dated 29-10-91. We find that a similar request, as is made by this application, was earlier made to this Court and Court directed reinstatement of the workmen in Pench Valley area of the Western Coalfields. We do not think it necessary to reconsider that decision. We are also of the view that under section 17-B of the Industrial Disputes Act, 301 workmen who have been directed to be reinstated, cannot be reinstated in Maharashtra area and, thus, indirectly transferred before their reinstatement. LA. No. 9238/91 for modification filed by the petitioner is, therefore, rejected. 14. Question of identification stands concluded by the directions issued by this Court and it has been stated by Shri Nair that workmen were reinstated as per the directions issued by this Court. They are continuing in service for more than a decade. LA. No. 9238/91 for modification filed by the petitioner is, therefore, rejected. 14. Question of identification stands concluded by the directions issued by this Court and it has been stated by Shri Nair that workmen were reinstated as per the directions issued by this Court. They are continuing in service for more than a decade. Thus for reinstatement part, I find no ground to make interference. 15. Coming to the question raised by Shri P. S. Nair that reference which was made by the Govt, of India treating the employees as workmen of the Management, was improper. As a matter of fact it was submitted before the CGIT by the Management that this question has to be decided by the CGIT. The CGIT has framed an issue on the question of relationship of employer-employee. It has been answered against the petitioner. Thus question raised is of academic importance. 16. Coming to the question of backwages, the CGIT has not given any finding with respect to the gainful employment of workman for a period of 10 years for which backwages stands granted. Gainful employment is one of the material factor to be considered as held by the Apex Court in Managing Director, Uttar Pradesh Warehousing Corporation and Another v. Vijay Narayan Vajpayee, (1980) 3 SCC 459 . The Apex Court in Pannijee Sugar and General Mills v. Workmen, 1984 (1) SCC 283 , has held that it is incumbent upon the Labour Court to enquire into the question of gainful employment while awarding the backwages - whether backwages payable for all the seasons which the worker has lost or for a particular season or for the entire period and for quantification of the relief having regard to his gainful employment. 17. This Court also in MPEB and Others v. Basant Kumar Pandey and Others, 1989 MPLJ 457 , has laid down thus :- 6. However, we accept Shri Gupta's very valid objection to a part of the award passed in each of the cases by which, in the mechanical exercise of its jurisdiction, the Labour Court, in each case, made an award for backwages and the Industrial Court, in appeal, confirmed that award. However, we accept Shri Gupta's very valid objection to a part of the award passed in each of the cases by which, in the mechanical exercise of its jurisdiction, the Labour Court, in each case, made an award for backwages and the Industrial Court, in appeal, confirmed that award. Shri Gupta has rightly drawn our attention to a decision of this Court in the case of Guna Central Co-operative Bank Ltd., 1987 MPLJ 414 : 1987 JLJ 249 to submit that there is no whisper of any finding to be read in any of the awards as to whether the delinquent employee was in any gainful employment after termination of his service so that he could be, and had to be, compensated for the loss suffered. Indeed, this view was taken by this Court on the holding of the Apex Court in the case of U.P. Warehousing Corporation v. Vijay Narayan, AIR 1980 SC 840 and we are clear in our mind that that decision of this Court, has not suffered any erosion as no contrary view of Apex Court has been placed for our consideration. Sarvashri N. K. Jain and H. N. Upadhyaya, appearing respectively for respondents Basant Kumar and Ramashankar Sharma, submitted that in their written statement the employees/workmen made a claim for payment of back wages on the basis of their being out of employment. However, we do not think that the Labour Court or even the industrial Court could have even given finding on that because there was no issue framed and no evidence led on the question as to whether the claimants in each case had not been gainfully employed during the relevant period. Accordingly, that part of the award is quashed and the matter is remitted to the Labour Court for deciding the question in accordance with law after framing proper issues and recording necessary evidence if so adduced by the parties. 18. In the instant case the CGIT has not given any finding that workmen were not employed gainfully elsewhere. Thus to that extent the award passed by the CGIT is set aside. Reinstatement part is upheld. With respect to backwages award is set aside. Matter is remitted back to the CGIT to decide question of backwages afresh in the light of discussion made above. 19. Resultantly, writ petition is allowed, in part to the extent indicated above. Cost on parties.