JUDGMENT : VIPUL M. PANCHOLI 1. This petition is filed under Articles 226 and 227 of the Constitution of India, in which, the petitioner – Employer has challenged the award dated 17.12.2011 passed by the Presiding Officer, Labour Court, Kalol in Reference (LCK) No.204/2005, whereby the Labour Court has partly allowed the Reference and directed the petitioner to reinstate the respondent – workman with continuity of service and to pay 75% backwages. 2. Heard learned advocate, Mr. Varun K. Patel for the petitioner and learned advocate, Mr. Reena Kamani for learned advocate, Mr. P.H. Pathak for the respondents. 3. Learned advocate, Mr. Patel appearing for the petitioner submitted that the petitioner is a proprietary firm and is engaged in the business of manufacturing of Ghamelas, buckets, agricultural implements and utensils. It is submitted that there was only one post of Pressman in the manufacturing unit of the petitioner and the respondent was working as Pressman in the said unit, however, the post of Pressman was to be abolished w.e.f. 01.05.2005 and, therefore, the respondent – workman was retrenched from the services of the petitioner w.e.f. 01.05.2005 and the respondent – workman was informed about the same vide communication dated 26.04.2005 about the abolition of the post and his retrenchment w.e.f. 01.05.2005. It is submitted that the respondent was also informed that he would be paid gratuity, retirement benefits and other legal dues by the petitioner, copy of said letter was sent by Registered Post AD, however, it was returned with an endorsement that the respondent – workman has refused. 4. Learned advocate submitted that thereafter, the respondent – workman raised industrial dispute, which was referred to the Labour Court, Kalol, where the statement of claim was filed by the respondent – workman at Exh.5, whereas the petitioner filed written statement, Exh.7 and after considering the evidence led before the Labour Court, now the impugned award has been passed by the Labour Court, whereby the aforesaid direction has been issued. 5. At this stage, learned advocate submitted that while admitting the present petition, this Court has granted stay with regard to continuity of service and 75% backwages on a condition that the respondent – workman shall be reinstated in service within stipulated time. It is submitted that immediately thereafter, the petitioner reinstated the respondent – workman on 15.05.2012 and he has worked with the petitioner till 11.11.2018. It is submitted that immediately thereafter, the petitioner reinstated the respondent – workman on 15.05.2012 and he has worked with the petitioner till 11.11.2018. It is submitted that the respondent – workman died on 11.11.2018. Learned advocate, therefore, urged that now the dispute is with regard to 75% backwages awarded by the concerned Labour Court. 6. Learned advocate submitted that it was the specific case of the petitioner before the Labour Court that there was only one post of Pressman, which was abolished and, therefore, the respondent – workman was retrenched, therefore, there is no question of preparation of seniority list for the post of Pressman and in fact, the compensation was offered to the respondent – workman, which he had refused. Learned advocate at this stage has referred to the statements of claim, copy of which is placed on record at Page No.23 of the compilation. It is submitted that in the said statement of claim, the respondent – workman has not stated that he is not gainfully employed and thus, there is no pleading before the Labour Court with regard to the same. Learned advocate at this stage also referred to the deposition given by the witness of the petitioner, wherein it has been specifically stated that the respondent – workman is having one rickshaw bearing Registration No.GJ-18-X-7356, which is of the ownership of the respondent – workman. Learned advocate has also referred to the cross-examination of the respondent – workman, wherein he has admitted that his son is driving rickshaw. Thus from the aforesaid evidence produced before the Labour Court, it is contended that the respondent – workman was gainfully employed and, therefore, it is not proper on the part of the Labour Court to award 75% backwages to the respondent – workman. Learned advocate has also submitted that while awarding 75% backwages, the Labour Court has not assigned any reason. Learned advocate, therefore, urged that the impugned award be quashed and set aside qua the backwages. 7. Learned advocate has placed reliance upon the decision rendered by the Hon’ble Supreme Court in case of M.L. Singla Vs. Punjab National Bank & Anr., reported in (2018) 18 SCC 21 . Learned advocate has more particularly placed reliance on Paragraph Nos.28 and 29 of the said decision. 8. 7. Learned advocate has placed reliance upon the decision rendered by the Hon’ble Supreme Court in case of M.L. Singla Vs. Punjab National Bank & Anr., reported in (2018) 18 SCC 21 . Learned advocate has more particularly placed reliance on Paragraph Nos.28 and 29 of the said decision. 8. At this stage, learned advocate has also placed on record the documents i.e. the writing given by the heirs of the deceased and receipt. From the aforesaid documents, it is pointed out that the petitioner has given Rs.1,50,000/- by way of gratuity and other compensation to the legal heirs of the deceased workman by cheque issued from HDFC Bank, Kalol Branch. Thus when the amount of gratuity and other compensation is already paid to the legal heirs of the deceased workman, this petition be allowed by quashing and setting aside the impugned award qua the backwages. 9. On the other hand, learned advocate, Ms. Kamani for the respondent – workman has opposed this petition and submitted that the Labour Court has specifically recorded the finding on the basis of the evidence produced before it that before terminating the services of the respondent – workman, the petitioner has not followed the mandatory provision prescribed under the Industrial Disputes Act, 1947 (hereinafter referred to as “ID Act” for short) and in fact, there is violation of provision contained in Section 25F of the ID Act and thus, the Labour Court has rightly directed the petitioner to reinstate the respondent – workman. It is further submitted that the respondent – workman has while giving deposition at Exh.8 in cross-examination, specifically stated that he is unemployed and he has tried to get an employment and he was not gainfully employed, therefore, when the respondent – workman was not gainfully employed after he was retrenched, the Labour Court has rightly awarded 75% backwages. At this stage, learned advocate submitted that the legal heirs of the respondent – workman has accepted the amount of Rs.1,50,000/- towards the gratuity and not for the backwages or any other compensation. It is, therefore, urged that this petition may not be entertained as the Labour Court has not committed any error while passing impugned award. 10. I have considered the submissions canvassed by learned advocate for the parties and I have also perused the material placed on record. It is, therefore, urged that this petition may not be entertained as the Labour Court has not committed any error while passing impugned award. 10. I have considered the submissions canvassed by learned advocate for the parties and I have also perused the material placed on record. It is revealed from the record that as per the case of the petitioner, the respondent – workman was employed on the post of Pressman and there was only one post, however, when the said post was abolished, the respondent – workman was retrenched after giving notice dated 26.04.2005 and he was asked to collect retrenchment compensation and gratuity amount, however, the respondent – workman has refused to accept the said notice, which was sent by Registered Post AD. It is further revealed from the record that in the statement of claim filed before the Labour Court, the respondent – workman has not at all stated that he was not gainfully employed nor he has stated the said fact in the deposition given before the Labour Court. During his cross-examination, he has also admitted that he has not given any written application to any of the authority for getting employment. From the deposition given by the witness of the petitioner, it is further revealed that it is specifically stated that the respondent – workman is having rickshaw bearing Registration No.GJ-18-X-7356. In the cross-examination of the respondent – workman, it is specifically stated by him that his son is driving the said rickshaw and earning out of it. Thus from the aforesaid material, it is clear that the respondent – workman was not unemployed. 11. At this stage, the decision upon which reliance has been placed by learned advocate for the petitioner is required to be referred to. In case of M.L. Singla (supra), the Hon’ble Supreme Court has observed in Paragraph Nos.28 and 29 as under, “28. The fourth error was award of 50% back wages to the appellant. While awarding 50% back wages, the Labour Court did not examine the question as to whether the appellant had pleaded and proved with the aid of evidence that he was not gainfully employed after his dismissal from service. 29. In order to claim back wages, it was necessary for the appellant to plead and prove that he was not gainfully employed after his dismissal with the aid of evidence. 29. In order to claim back wages, it was necessary for the appellant to plead and prove that he was not gainfully employed after his dismissal with the aid of evidence. Respondent No.1-Bank too was entitled to adduce evidence to prove otherwise.” 12. Thus from the aforesaid observations made by the Hon’ble Supreme Court, it is clear that in order to claim back-wages, it was necessary for the workman to plead and prove that he is not gainfully employed after his dismissal by leading evidence. In the present case, as discussed hereinabove, the respondent – workman has failed to prove by leading evidence that he was not gainfully employed after his dismissal. Even otherwise, if the impugned award passed by the Labour Court is seen, it is revealed that while awarding 75% back-wages, the Labour Court has not assigned any reason. 13. Thus in view of the aforesaid facts and circumstances of the present case, this Court is of the view that the Labour Court has committed any error while awarding 75% back-wages to the respondent – workman. 14. So far as the direction issued by the Labour Court with regard to the reinstatement of the respondent – workman, learned advocate for the petitioner submitted that the petitioner has accepted the said direction and thereby reinstated the respondent – workman on 15.05.2012 pursuant to the interim order passed by this Court and the respondent – workman has worked upto 11.11.2018 i.e. till he died. Therefore, the said direction does not require any interference. 15. In view of the aforesaid discussions, this petition stands allowed partly. The impugned award dated 17.12.2011 passed by the Presiding Officer, Labour Court, Kalol in Reference (LCK) No.204/2005 is hereby quashed and set aside so far as it directs the payment of 75% back-wages, however, the direction pursuant to impugned award with regard to reinstatement is not interfered with. Rule is made absolute to the aforesaid extent.