( 1 ) HEARD the learned Advocate, Mr. Devang Vyas, appearing on behalf of petitioner. ( 2 ) IN the present petition, the petitioner has challenged the award passed by Labour Court, Ahmedabad in Reference No. 1628 of 1999 dated 31. 1. 2006. The Labour Court has granted reinstatement with continuity of service while setting aside dismissal order dated 28. 6. 1999 with 25% back wages of interim period. The present petition is filed against the direction of not granting full back wages of interim period. ( 3 ) LEARNED Advocate, Mr. Vyas, appearing on behalf of petitioner, submitted that Labour Court has committed gross error in not granting the full back wages of interim period, though workman remain unemployed during the interim period. He also submitted that presumption of the Labour Court that during this interim period, workman should not remain without any work / job, is not based upon any evidence. He also submitted that Labour Court has committed error in granting only 25% back wages of interim period. ( 4 ) I have considered the submissions made by learned Advocate, Mr. Vyas and have also perused the award passed by Labour Court. The Labour Court has examined the issue, whether workman is entitled to any amount of back wages of interim period or not in Issue No. 5. The termination has been set aside by the Labour Court only on the ground that mandatory provisions of Section 25f of the I. D. Act,1947 has been violated by the Management. This being a technical breach of mandatory provisions which ultimately resulted in reinstatement in service. The Labour Court has given reasons relying upon the decision of the Apex Court in case of M. P. State Electricity Board Vs. Smt. Zharina reported in 2003 (98) FLR 595. The Labour Court has considered that looking to the decision of the Apex Court when termination has been set aside, it is not a natural and ordinary consequence to grant full back wages to the workman concerned. The Court has to consider the various relevant factors before granting the amount of back wages. The Labour Court has considered while exercising the discretionary power, whether workman has made any sincere efforts; is there any negligence on the part of workman and financial position of the establishment. The Court has to consider the various relevant factors before granting the amount of back wages. The Labour Court has considered while exercising the discretionary power, whether workman has made any sincere efforts; is there any negligence on the part of workman and financial position of the establishment. These aspects have been taken into account by the Labour Court considering the evidence of the workman vide Exh. 9 and various applications which were filed by the workman vide Exh. 33/2 to Exh. 33/14. The Labour Court has observed that these are the similar type of applications produced by the workman without any acknowledgment from other side, whether such application was submitted to any other employer for getting the job by the workman or not. For that, workman has not produced any reliable evidence before the Labour Court. The answer has been given by the workman that he is not having the acknowledgment of such application because he was not having the amount for sending this application by RPAD. Such explanation cannot be believed and same was rightly not believed by Labour Court. The Labour Court has also observed that some of the applications are local which can be served or applied by hand delivery and to obtain the signatures from the establishment. That proof is also not produced by the workman before the Labour Court. The important and relevant aspect which has been taken into account by the Labour Court is that reference is of the year 1999 and workman was examined before the Labour Court in the year 2002. Therefore, for more than three years, workman remained silent. If the workman is really unemployed and not able to maintain his family, he should have to remain vigilant while proceeding in the reference, but that vigilance was not there. That aspect has been rightly appreciated by the Labour Court. The Labour Court has also considered that reference remained pending before the Labour Court from 1999 to 2006. For that long period, it is not proper to pass award of full back wages in light of the financial position of the Ahmedabad Municipal Transport Service. That aspect has been rightly appreciated by the Labour Court. The Labour Court has also considered that reference remained pending before the Labour Court from 1999 to 2006. For that long period, it is not proper to pass award of full back wages in light of the financial position of the Ahmedabad Municipal Transport Service. The Labour Court has also rightly presumed that for such a long time, workman may not remain without work and these are the aspects which have been taken into account and discretionary powers have been exercised by the Labour Court on the materials which are on record and granted 25% back wages of interim period. ( 5 ) THE law on this question recently examined by the Apex Court in case of Municipal Council, Sujanpur Vs. Surinder Kumar reported in 2006 (5) Scale 505 . The relevant discussion is in Para. 13, 15 and 16 which are quoted as under :"13. Equally well settled is the principle that the burden of proof, having regard to the principles analogus to Section 106 of the Evidence Act that he was not gainfully employed, was on the workman. (See : Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors. (2005) 5 SCC 100 ). 15. Apart from the aforementioned error of law, in our considered opinion, the Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of Section 11a of the said Act being discretionary in nature, a Labour Court was required to consider the facts of each case therefor. Only because relief by way of reinstatement with full back wages would be lawful, it would not mean that the same would be granted automatically. 16. For the said purpose, the nature of the appointment, the purpose for which such appointment had been made, the duration / tenure of work, the question whether the post was a sanctioned one, being relevant facts, must be taken into consideration. ( 6 ) RECENTLY, the Apex Court has also considered similar question in case of Haryana State Electronics Development Corporation Ltd. Vs. Mamni reported in 2005 AIR SCW 2979, wherein, another recent decision in case of UP State Brassware Corporation Ltd. Vs. U. N. Pandey reported in JT 2005 (10) SC 344. The Apex Court has observed in Para. ( 6 ) RECENTLY, the Apex Court has also considered similar question in case of Haryana State Electronics Development Corporation Ltd. Vs. Mamni reported in 2005 AIR SCW 2979, wherein, another recent decision in case of UP State Brassware Corporation Ltd. Vs. U. N. Pandey reported in JT 2005 (10) SC 344. The Apex Court has observed in Para. 15 and 17 as under :"15. This Court in a number of decisions has categorically held that the relief of reinstatement with full back wages is not to be given automatically. Each case must be considered on its own merits. 17. It was further opined : industrial Courts while adjudicating on disputes between the management and the workmen, therefore, must take such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring withing its purview giving a person what is due to him and not what can be given to him in law. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an industrial court shall lose much of its significance. The changes brought about by the subsequent decision of this Court probably having regard to the changes in the policy-decisions of the government in the wake of prevailing market economy, globalization, privatization and outsourcing is evident. in Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and Anr. , this Court noticed Raj Kumar (supra) and Hindustan Tin Works (supra) but held : as already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatsoever on the aspect whether the respondent was employed elsewhere during this long interregnum. Instead of remitting the matter to the Labour Court or High Court for fresh consideration at this distance of time, we feel that the issue relating to payment of back wages should be settled finally. There was no pleading or evidence whatsoever on the aspect whether the respondent was employed elsewhere during this long interregnum. Instead of remitting the matter to the Labour Court or High Court for fresh consideration at this distance of time, we feel that the issue relating to payment of back wages should be settled finally. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of this particular case including the vicissitudes of long drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement. " ( 7 ) RECENTLY, again this question has been examined by the Apex Court in UPSRTC Ltd. Vs. Sarada Prasad Misra and Anr. Reported 2006 SCC (Lands) 857, wherein, the Apex Court has observed that right to claim full back wages when to be granted. Held, no precise formula can be adopted nor "cast-iron rule" can be laid down in this regard. Payment of back wages is a discretionary power which has to be exercised keeping in view the facts and circumstances of each case. The approach of the Court / Tribunal should not be rigid or mechanical but flexible or realistic. In cases where the employee is entitled to reinstatement, the question regarding payment of back wages would be independent of the question as to entitlement to reinstatement. While considering and determining the question regarding payment of back wages, the Court / Tribunal would consider all relevant circumstances referred to herein and pass an appropriate order keeping in view the principles of justice, equity and good conscience. Relevant discussion in Para. 13 to 16 which are quoted as under :"13. But even otherwise, the award passed by the Labour Court as also the order of the High Court granting back wages deserves interference. In several cases, this Court has held that payment of back wages is a discretionary power which has to be exercised keeping in view the facts and circumstances of each case and neither straitjacket formula can be evolved, nor a rule of universal application can be adopted (vide PGI of Medical Education and Research v. Raj Kumar; Hindustan Motors Ltd. v. Tapan Kumar Bnhattacharya ). In Kendriya Vidyalaya Sangathan v. S. C. Sharma this Court held that when question of determination of entitlement of back wages comes up for consideration, prima facie, it is for the employee to prove that he had not been gainfully employed. Initial burden is on the employee to show that he remained without any employment. In several cases, similar view has been taken by this Court in recent years. In MP SEB v. Jarina bee it was observed that reinstatement in service and payment of back wages are two different things and payment of back wages is not a natural consequence of setting aside and order of dismissal. In Allahabad Jal Sansthan v. Daya Shankar Rai, it was indicated that the law is not in absolute terms that in all cases of illegal termination of services, a workman must be paid full back wages. In Haryana State Coop. Land Development Bank v. Neelam it was stated that the aim and object of the Industrial Disputes Act is to impart social justice to the workman but keeping in view his conduct. Payment of back wages, therefore, would not be automatic on entitlement of the relief of reinstatement. In G. M. , Haryana Roadways v. Rudhan Singh the Court reiterated that there is no rule of thumb that in each and every case, where the Industrial Tribunal records a finding that the order of termination of service was illegal that an employee is entitled to full back wages. A host of factors which are relevant, must be taken into account. 14. The Court stated : (SCC p. 596, para 8) 8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i. e. Whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him be may not be in a position to get another employment. However, where the total length o service rendered by a workman is very small, the award of back wages for the complete period i. e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration, is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year. 15. In Allahabad Jal Sansthan v. Daya Shankar Rai after considering the relevant cases on the point, the Court stated (SCC p. 130, para 16) 16. We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realised that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at. 16. From the above cases, it is clear that no precise formula can be adopted nor "cast-iron rule" can be laid down as to when payment of full back wages should be allowed by the court or tribunal. It depends upon the facts and circumstances of each case. The approach of the court / tribunal should not be rigid or mechanical but flexible and realistic. It depends upon the facts and circumstances of each case. The approach of the court / tribunal should not be rigid or mechanical but flexible and realistic. The court or tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the second question, the court or tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order. " ( 8 ) IN view of the observations made by Apex Court in aforesaid decisions and looking to the facts of this case that termination is of the year 1999, evidence was given by workman in the year 2002 and reference has been decided in the year 2006 and the financial position of respondent and not having sufficient proof of remaining unemployed or not producing reliable evidence before Labour Court about unemployment, these are the relevant factors which have been rightly considered and appreciated by the Labour Court and on that basis, discretionary powers have been exercised denying the 75% back wages of interim period. For that, according to my opinion, Labour Court has not committed any error which requires any interference by this Court while exercising the power under Article 227 of the Constitution of India. There is no infirmity in the award passed by Labour Court. This Court cannot act as an appellate authority. Even in case when two views are possible, then also, this Court cannot interfere with such award while exercising the power under Article 227 of the Constitution of India. Hence, there is no substance in the present petition. Accordingly, present petition stands disposed of.