JUDGMENT : H.K. Rathod, J. Heard learned Advocate Mr. Dipen K. Dave for petitioner Damnagar Municipality. Petitioner Damnagar Municipality has challenged common award passed by labour court, Amreli in Reference NO. 18/04 to 22/04 and 34/04 to 35/04 Exh. 57 dated 13th July, 2009. Labour Court has partly allowed reference and granted reinstatement in favour of respondents workmen to their original post with continuity of service an 25 per cent back wages for intervening period. 2. According to petitioner, from list of events, facts are as under: It is necessary to note that common award has been passed by labour court in respect to each reference but petitioner Municipality has filed separate individual petitions in each reference, therefore, in all, six matters are there which have been decided by this court by delivering this common judgment. Respondents were employed on daily wages as sweeper. Petitioner was facing financial problem due to delay in grant. Therefore, petitioner was not able to pay regular salary, hence, respondents along with other employees gone on strike. According to petitioner, strike was called by respondents during Diwali time which resulted in garbage, heaps and jammed drainages in whole city of Damnagar. Medical Officer of Damnagar also warned Panchayat to get work of cleaning done and to get dirt removed from streets of Damnagar. Therefore, petitioner under took exercise to negotiate and intimated to collect their salary with employee but respondents did not start work and entire city of Damnagar faced severe stinking and dirt. On 7th December, 2003, it was held in special general meeting that in case of failure in negotiation, to terminate services of all employees and entered contract for cleaning work to get rid of severe stinking and dirt resulted in the epidemic in the city. After failure in negotiation, petitioner terminated service of all the employee after following due procedure of law. Respondents raised industrial dispute challenging termination order. Petitioner appeared before labour court and filed defence statement and placed all relevant documents on record but labour court has, without appreciating evidence on record, directed petitioner to reinstate employee on his original post with continuity of service with 25 per cent back wages for intervening period and, therefore, petitioner has challenged said award by filing this group of petitions. 3. Learned Advocate Mr. 3. Learned Advocate Mr. Dave appearing for petitioner municipality has submitted that before going on strike, no notice has been issued by union to petitioner municipality, therefore, sudden strike without notice is considered to be illegal. He further submitted that petitioner municipality had requested so many time to concerned respondents to join service as per annexure D page 36 to 62 but concerned employees had not reported for work and, therefore, ultimately, in general body of petitioner municipality, resolution was passed to terminate service of concerned respondent employees and, therefore, industrial dispute was raised by concerned employees which was referred to labour court for adjudication on 11.2.2004. According to facts of respondent workmen, respondent workmen were working with Gram Panchayat, Damnagar as Safai Kamdar along with other Safai Kamdars. Gram Panchayat had not paid workmen their wages for the period from July, 2003 to October, 2003, therefore, workmen demanded wages for above period and warning was given to Gram Panchayat by notice on 17th October, 2003 that if gram panchayat did not pay wages of workmen, then, workmen will be having no other option but to proceed on strike. Gram Panchayat has replied to respondents workmen by letter dated 30.10.2003 that as workmen stopped work, gram panchayat did not require their service any more, therefore, present dispute has been raised against termination. Statement of claim was filed by workmen before labour court and workmen served notice to panchayat on 17.10.2003. Assistant Commissioner of Labour summoned both parties and thereafter, workmen reported for their duties as per instructions of Assistant Commissioner of Labour and started work from 16.12.2003 but gram panchayat declared that service of workmen are terminated and all of them are retrenched. Written statement was filed by Gram Panchayat Damnagar denying all the facts of statement of claim contending that Gram Panchayat is an establishment working under the Gujarat Panchayats Act and Industrial Disputes Act, 1947 is not applicable to first party No.1. Gram Panchayat has given notice on 3rd November, 2003 and also issued letter dated 7th November, 2003 calling written explanation from respondents workmen, however, workmen continued to remain in their illegal activities, therefore, Gram Sabha decided unanimously to dismiss workmen. Gram Panchayat has given notice on 3rd November, 2003 and also issued letter dated 7th November, 2003 calling written explanation from respondents workmen, however, workmen continued to remain in their illegal activities, therefore, Gram Sabha decided unanimously to dismiss workmen. These workmen were not recruited after following recruitment rules and procedure and economic position of Gram Panchayat is not sound and job of workmen was not satisfactory and therefore request was made by petitioner panchayat to dismiss reference. 4. Before labour court, workman was examined at Exh. 12, Exh. 10, Exh. 9 in respective references. Documentary evidence of workmen was produced vide list Exh. 11. Exh.11/1 is copy of notice issued by workmen to Sarpanch, Gram Panchayat, Damnagar dated 17th October, 2003. Exh. 11/2 is copy of letter to Secretary, Damnagar Gram Panchayat by Labour Officer, Amreli. Evidence of workmen was closed before labour court vide Exh. 18. On behalf of petitioner, oral evidence of witness was recorded at Exh. 37. Documentary evidence of Gram Panchayat has been produced at Exh. 38 to Exh. 48 and at Exh. 51 to 55. No evidence was produced by first party no.2 and 3. Thereafter, issues have been framed by labour court and after considering fact that workmen those who remained continue in service for number of years, their services have been terminated by petitioner without holding departmental inquiry against respondents workmen because they have committed misconduct of proceeding on strike. Petitioner has settled dispute with 26 workmen, those who are reinstated in service with effect from 1st February, 2005 with continuity of service but with present respondents workmen, petitioner has not settled dispute for reasons best known to petitioner municipality. Therefore, according to respondents workmen, attitude of petitioner towards present workmen shows discrimination which has not been justifying termination, therefore, they are entitled for right of reinstatement. Learned Advocate Mr. Dave seriously not challenged relief of reinstatement but he has vehemently challenged award of 25 per cent back wages for intervening period granted by labour court. 5. I have considered submissions made by learned advocate Mr. Dave. I have also perused award passed by labour court. This matter can be considered by this court only on short ground while examining award passed by labour court, Amreli. 5. I have considered submissions made by learned advocate Mr. Dave. I have also perused award passed by labour court. This matter can be considered by this court only on short ground while examining award passed by labour court, Amreli. One is if order of termination is simple, then, each workman has completed continuous service of 240 days within the meaning of section 25-B of ID Act, 1947. Petitioner Municipality has not raised any contention before labour court that each of respondent workmen not completed 240 days continuous service, looking to evidence of workman which has not been challenged by petitioner in cross examination. Before going on strike on 17.10.2003, notice was served to petitioner by concerned workmen and these facts have been rightly appreciated by labour court while considering evidence of concerned respondent workmen. According to petitioner gram panchayat, service of workmen were terminated because workmen proceeded on strike but section 25F has not been followed by petitioner gram panchayat. Contention was raised by petitioner that it is not an industry but that contention has not been proved by petitioner by leading proper evidence before labour court. Decision to terminate service of workmen was taken by Gram Sabha without following mandatory provisions of ID Act, 1947. Therefore, such order is rightly set aside by labour Court. Exh. 39 is letter dated 30.10.2003 which suggests that order of termination has already come into effect and allegations have been made that workmen had misbehaved with panchayat. For that also, no departmental inquiry was held by petitioner against workmen concerned and, therefore, it amounts to termination based on misconduct and, therefore, departmental inquiry must have to be held by petitioner. Passing of resolution after terminating service of workmen was nothing but an eye wash as per labour court, Amreli. In light of this back ground, after considering oral evidence of workmen, in paragraph 32, labour court has granted 25 per cent back wages for interim period and denied 75 per cent back wages on the ground that earning during interim period was accepted to some extent by workmen concerned. 6. Labour Court, Amreli, while deciding common reference and examining issue framed by him on the basis of record produced by both parties, made discussion in para 27 to 32 which are relevant, therefore, quoted as under: "27. 6. Labour Court, Amreli, while deciding common reference and examining issue framed by him on the basis of record produced by both parties, made discussion in para 27 to 32 which are relevant, therefore, quoted as under: "27. In the present case, there is no evidence to show that the first party gave notice or notice pay in lieu of notice, compensation equivalent to fifteen days for every completed year or of sending notice to the Appropriate Government. The present workmen have also stated on oath that they were not given any notice or dues when they were terminated. The first party has also not challenged this fact during cross examination. Therefore, only because of the decision of Gram Sabha, termination of services of the workman without following mandatory provisions of the ID Act is not proper and justified. Therefore, issue no.2 is replied in affirmative. 28. It appears that the first party sent a letter to the workman on 30 October 2003 produced at Exh. 39. It says that the workman was not permanent. That she was not entitled to benefit of permanent nature. It further says as the workman has stopped cleaning work with other workmen, the panchayat did not require her services. Its' second part says that the workman had misbehaved against the Panchayat. Therefore, sought an explanation from the workman as to why action should not be taken. 29. Therefore, considering exh. 39, the first party had already terminated services of the workmen. The letter also says that the workmen had misbehaved with the Panchayat. The letter does not reveal that the first party wanted to hold an inquiry against the workman and then after wanted to take decision. Therefore, when there was misconduct, it was necessary for the first party to hold inquiry. Therefore, to pass a resolution after terminating services of the workman was nothing but an eyewash, according to me. 30. It also appears that the first party terminated services of nearly 33 safai kamdas on the similar reason of going on strike. It also appears that all the workmen had raised industrial dispute in the Office of the Assistant Commissioner of Labour. The first party refused to reinstate the workmen during conciliation proceedings. The pleading and case of the parties were similar in all the cases. It also appears that all the workmen had raised industrial dispute in the Office of the Assistant Commissioner of Labour. The first party refused to reinstate the workmen during conciliation proceedings. The pleading and case of the parties were similar in all the cases. However the first party settled the 26 cases and reinstated 26 workmen from 1st February, 2005 with continuity of service. The first party did not settle the present disputes for the best reasons known to it. Therefore, this conduct of the first party shows discriminatory attitude towards the present workmen. 31. Therefore, considering all the facts and circumstances of this case, the termination of the workmen is not justified, according to me. Therefore, the workmen are entitled to reinstatement. 32. The workmen have stated on oath that they worked as rag pickers since they are terminated. They have further stated that they earn Rs. 10 to Rs. 15 per day. There is no evidence to show that the workmen were gainfully employed during the intervening period. Therefore, the workmen are also entitled to back wages. However, considering nature of duties and all the facts and circumstances of this case, according to me, interest of justice shall meet, if back wages at 25% is awarded for the intervening period." 7. Initial burden to prove unemployment during interim period is upon employee. According to evidence of workmen given by them on oath, they worked as rag pickers since the termination of their service and received earning of Rs. 10.00 to Rs. 15.00 per day. Against that evidence of workmen, no rebuttal or positive evidence has been produced by petitioner for proving gainful employment of each workman during interim period. Once, workman has proved unemployment during interim period to some extent as per the evidence on record which suggests that the workmen are not having absolute gainful employment during interim period, therefore, burden has been shifted upon employer to disprove facts stated by workmen on oath. For discharging that burden and for disproving facts stated by workmen on oath, there is no any evidence led by petitioner before labour court. For discharging that burden and for disproving facts stated by workmen on oath, there is no any evidence led by petitioner before labour court. Date of termination of workmen is 23rd October, 2003 and reference is decided by labour court on 13th July, 2009, total period of which comes to about six years, therefore, labour court has considered nature of duties, status of employee and facts and circumstances of case as well as discriminatory treatment given by employer to present respondents, as matter has been settled by petitioner with other 26 workmen while reinstating them in service with effect from 1st February, 2005 with continuity of service and not settled dispute with present respondents workmen, those who are similarly situated, therefore, it shows discriminatory attitude shown by petitioner towards respondents workmen which has been rightly considered and appreciated by labour court and on that basis, in interest of justice exercised discretionary powers under section 11-A of ID Act, 1947 and granted 25 per cent back wages for interim period. 8. Normally when termination is found to be unjustified and violative of section 25F of ID Act, 1947, employee concerned becomes entitled for normal relief of reinstatement with all other consequential benefits. Considering allegations made by petitioner against respondents workmen, for that, no departmental inquiry was conducted by petitioner and, therefore, on both grounds, labour court has set aside termination. In such circumstances, workmen are entitled for back wages from petitioner unless it is proved by employer that workmen were gainfully employed. 9. In Novartis India Ltd. v. State of West Bengal and others, 2009 (2) LLJ 9 , apex court considered question of back wages in para 20, 30 and 35 to 41 as under: "20.It is also trite that for the purpose of grant of back wages, conduct of the concerned workman also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right. 30. Even if some income was derived by the employee, the same should be taken into for consideration for the purpose of consideration in regard to grant of entire back wages. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right. 30. Even if some income was derived by the employee, the same should be taken into for consideration for the purpose of consideration in regard to grant of entire back wages. Our attention has been drawn to a decision of the Bombay High Court in Navin J. Surti v. Modi Rubber Ltd. and another, 2004 (2) CLR 46 wherein it was observed :- "Eventually, there would be a burden cast upon the employee to disclose the efforts made by him to secure another job during the time he was out of employment on account of termination of the service, in order to justify the claim for the back wages in its entirety. Indeed, the Division Bench in Sadanand Patankar's case (supra) has clearly ruled that "Since the facts about the employment or non-employment and/or the efforts made or not made to secure an alternative employment during the period of enforced idleness are within the special knowledge of the employee, it is only fair and proper that he should first state whether, he was employed or not and during what period, the amount of income earned by him if any, the nature of efforts made by him for securing alternate employment or the circumstances which prevented him from making such efforts." It has also been clearly held that once such burden is discharged by the employee, it would be for the employer to prove facts to the contrary. Similarly is the decision of the learned Single Judge, as he then was (Sri Justice B.N. Srikrishna), in Indiana Engineering Works (Bombay) Pvt. Ltd. v. The Presiding Officer 5th Labour Court and Ors. 1995 (II) C.L.R. 890 where it has been clearly held that "I am of the considered view that the dismissed workman also owes a duty to the industrial adjudicator to honestly disclose full particulars of the facts which are purely within his knowledge and that any attempt to mislead the Tribunal must surely be looked at askance," It was furthermore observed :- "Apart from the obligation on the part of the employer to establish gainful employment of the employee during such period, it would also be necessary for the employee to disclose the efforts made by him to get. some other job or employment during such period as well as about the source of income during the said period and if so, to what extent. Mere silence on the part of the employee in that regard cannot, in any manner, enure to the benefit of the employee to justify the claim for back wages in entirety. It cannot be forgotten that the order for payment of back wages has to be from the point of view of compensating the employee for the loss suffered during the time he was out of the employment and not a reward for having succeeded in establishing the action of termination of the service by the employer to be illegal." 35. However, the question which arose for consideration before the Industrial Tribunal was as to whether the order of termination passed by the company was valid. The answer to the said issue was answered in the negative. It had attained finality. We have also noticed hereinbefore that there did not exist any justifiable reason as to why such a post haste decision was taken. 36. The workmen had pleaded that they remained unemployed. They stated so in their respective depositions. The fact that they survived and did not die of starvation itself could not be a ground for denying back wages to them. Even an unemployed person has a right to survive. He may survive on his past savings. He may beg or borrow but so long as he has not been employed, back wages, subject to just exceptions, should not be denied. An award of reinstatement in service was denied to them only because in the meanwhile, they attained their age of superannuation. 37. Back wages in a situation of this nature had to be granted to respondents by way of compensation. If the principle of grant of compensation in a case of this nature is to be applied, indisputably having regard to the fact situation obtaining herein, namely, that they were doing a specialized job and were to reach their age of superannuation within a few years, grant of back wages was the only relief which could have been granted. It was furthermore not expected that they would get an alternative employment as they were superannuated. Burden of proof was undoubtedly upon the workmen. The said burden, however, was a negative one. It was furthermore not expected that they would get an alternative employment as they were superannuated. Burden of proof was undoubtedly upon the workmen. The said burden, however, was a negative one. Once they discharged their burden by deposing before the Tribunal, it shifted to the employer to show that their contention that they had not been employed, was incorrect. No witness was examined on behalf of the employer. Even there was no pleading in that behalf. 38. Respondents were in private employment and not in public employment. Their services were permanent in nature. The termination of their services was held to be illegal as prior to issuance of the orders, no enquiry had been conducted. The order of discharge was, thus, void ab-initio. Back wages, therefore, could have been granted from the date of termination of service. 39. In Nicks (India) Tools v. Ram Surat, (2004) 8 SCC 222 this Court held : "19. Reliance placed by the learned counsel for the appellant on the case of P.G.I. of Medical Education & Research in our opinion, does not take the case of the appellant any further. In that case, this Court held that the Labour Court being the final court of facts the superior courts do not normally interfere with such findings of fact unless the said finding of fact is perverse or erroneous or not in accordance with law. In the instant case, we have already noticed that the basic ground on which the Labour Court reduced the back wages was based on a judgment of the High Court of Punjab and Haryana which, as further noticed by us, was overruled by a subsequent judgment of a Division Bench. Therefore, the very foundation of the conclusion of the Labour Court having been destroyed, the appellant could not derive any support from the above cited judgments of that Court. Similarly, in the case of M.P. SEB this Court only said that it is not an inevitable conclusion that every time a reinstatement is ordered, full back wages was the only consequence. This Court, in our opinion, did not conclude that even in cases where full back wages are legally due, the superior courts are precluded from doing so merely because the Labour Court has on an erroneous ground reduced such back wages. This Court, in our opinion, did not conclude that even in cases where full back wages are legally due, the superior courts are precluded from doing so merely because the Labour Court has on an erroneous ground reduced such back wages. In the instant case, we have noticed that the trial court apart from generally observing that in Ludhiana, there must have been job opportunities available, on facts it did not rely upon any particular material to hold that either such job was in fact available to the respondent and he refused to accept the same or he was otherwise gainfully employed during the period he was kept out of work. On the contrary, it is for the first time before the writ court the appellant tried to produce additional evidence which was rightly not considered by the High Court because the same was not brought on record in a manner known to law. Be that as it may, in the instant case we are satisfied that the High Court was justified in coming to the conclusion that the appellant is entitled to full back wages." {See also Jasbir Singh v. Punjab & Sind Bank & Ors., (2007) 1 SCC 566 40. In Madhya Pradesh Administration v. Tribhuvan, (2007) 9 SCC 748 while reiterating the principle relating to grant of back wages in some of the decisions to which we had adverted to, this Court opined that the court should consider each case on its own merits. So far as the issue that the orders of transfer were not in question, in the case of the parties themselves in Bikash Bhushan Ghosh (supra), it was observed that the orders of transfer were not in issue before the Tribunal. 41. There is another aspect of the matter which cannot be lost sight of. The Industrial Court had directed calculation of back wages on the last pay drawn. Its attention, however, was not drawn to the fact that in the mean time revision in wages had taken place. On the date of their superannuation, they were entitled to a much higher pay as the revision in wages had taken place to which the workman were entitled to. Its attention, however, was not drawn to the fact that in the mean time revision in wages had taken place. On the date of their superannuation, they were entitled to a much higher pay as the revision in wages had taken place to which the workman were entitled to. In view of the fact that the same attained finality, this Court is not inclined to exercise its jurisdiction under Article 142 of the Constitution of India for the purpose directing payment of back wages on the basis of revised scale of pay and, thus, it will not be fit and proper to interfere with the impugned judgment while noticing the law in this behalf." 10. As per decision of apex court in case of M/s. P.V.K. Distillery Ltd. v. Mahendra Ram, 2009 AIR SCW 2904, Long pendency of litigation in Labour Court cannot be considered to be a ground for denying relief of back wages to concerned employees, otherwise, employee would suffer double jeopardy of losing back wages and also delay in getting reinstatement. Relevant observations made by apex court in para 20, 21 and 22 are quoted as under: "(20) In the instant case, the notice had been issued limiting the question to the payment of 50% of the total back wages. This does not mean that the respondent is not entitled to further relief. The point that his services were terminated in the year 1985 and since then the case is pending for the last two decades in different courts also has no relevance, since he had approached the court within a reasonable time. It is not his fault that the case is still pending before the court. These grounds could not be held against him for denying the relief of back wages otherwise he would suffer double jeopardy of losing back wages and delay in getting the reinstatement for no fault of his. Therefore, it would have been more enlightening, had the High Court reasoned out as to why the appellant should reinstate the respondent with full employment benefits and should pay full back wages to him for nothing in return from him in terms of work, production etc. (21)Giving a realistic approach to the matter and in spite of all these circumstances we are restricting ourselves to the question of 50% of the total back wages. (21)Giving a realistic approach to the matter and in spite of all these circumstances we are restricting ourselves to the question of 50% of the total back wages. Although services of the respondent have been terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full employment benefits and full back wages. The notice was issued with a view that the appellant's factory has been taken over by a new management altogether and by asking the appellant to pay full back wages for the long interregnum would be unfair and unjust. The workman has not entered appearance to justify the award passed by the Labour Court. Therefore, in our view, it would be unreasonable to put a huge burden on the appellant by directing them to reinstate respondent with continuity of service and with full back wages, because the appellant's factory had been declared sick and remained closed for many years and has been assigned to a new management led by its Chief Executive Director, Sri M. K. Pilania in order to rehabilitate/reconstruct it. (22) In view of the above discussion, we are of the opinion that it would be fair and reasonable to direct the employer to deposit 50% of back wages by way of arrears of back wages, instead of full wages awarded by the Labour Court." 11. In view of the aforesaid observations made by apex court in both case and considering facts of present case in present group of petitions filed by petitioner, according to my opinion, labour court has rightly set aside order of termination found to be unjustified and considering the conduct of petitioner with the present respondents employees which is found to be discriminatory and labour court has rightly exercised powers under section 11-A of ID Act, 1947 and discretionary powers have been properly exercised in granting 25 per cent back wages for interim period on the basis of facts which are found from record, therefore, according to my opinion, no error is committed by labour court in granting reinstatement with 25 per cent back wages for interim period which would require interference of this court under Article 227 of Constitution of India. 12. After considering submissions made by learned advocate Mr. 12. After considering submissions made by learned advocate Mr. Dave in detail and also after perusing impugned award passed by labour court, according to my opinion, on both counts, labour court has rightly appreciated matter because if termination is considered as simple termination, then, mandatory provisions of section 25-F of ID Act were violated by petitioner while terminating service of respondents workmen and if termination is based on misconduct, then, for such alleged misconduct, no charge sheet was served to respondents by petitioner and no departmental inquiry was initiated by petitioner for proving the same and, therefore, order of termination has been rightly set aside by labour court, Amreli. Labour Court has rightly considered nature of duties and facts and circumstances of case and evidence of each workman where gainful employment to some extent has been accepted by workmen and, therefore, labour court has rightly granted only 25 per cent back wages for interim period. For that, according to my opinion, labour court has not committed any error which would require interference of this court under Article 227 of Constitution of India. Common impugned award is actually based on facts and fact finding arrived at by labour court. This court cannot disturb finding of fact decided by labour court while exercising powers under Article 227 of Constitution of India unless it is proved to be perverse or contrary to evidence on record. Labour Court has given cogent reasons and discussed evidence on record in support of its conclusion. Labour Court has applied mind in respect of facts which are on record. Order of termination is bad as well as unjustified and, therefore, rightly set aside by labour court and rightly granted 25 per cent back wages for interim period. Therefore, matter does not require interference of this court in exercise of powers under Article 227 of Constitution of India. {2010 AIR SCW page 1990}. 13. Therefore, there is no substance in these petitions filed by petitioner Damnagar Municipality. Therefore, these petitions are dismissed. Petitions dismissed.