K.K. Desai, J.
1. This is an appeal on behalf of the original petitioner from the judgment and order made by Kantawala, J., on March 18, 1971, dismissing the Miscellaneous Petition No. 904 of 1969 with costs.
2. Respondent No. 1 joined service of the appellant who carried on business as proprietor of Asian Photos at Nanabhai Lane, Bombay, sometime in 1958. He was discharged from service on October 3, 1967. His case was that his discharge from service was wrongful. He accordingly recorded the relevant facts in his correspondence addressed, inter alia, to the officer in charge of the shops and establishments office and Labour Commissioner's office. He claimed reinstatement with back wages. The conciliation proceedings failed and the conciliation officer made normal failure report. By reference dated April 30, 1968, the demand of respondent No. 1 for reinstatement with full back wages was referred to the Labour Court. The parties appeared personally before the Labour Court and by the award dated September 19, 1969, the Labour Court, upon appreciation of the evidence on record, held that respondent No. 1 had not abandoned and relinquished the service and the case made by the appellant to that effect was incorrect. The finding made was that respondent No. 1 was removed from service without assigning any reason and without holding any inquiry. The correspondence disclosed that the relation between respondent No. 1 and the appellant were not cordial. That was a result of a dispute raised by respondent No. 1 for payment of bonus and about leave that should be granted. The appellant was guilty of unfair labour practice. In connection with the demand for back wages, the finding was that respondent No. 1 had remained unemployed from the date of his discharge from service and that fact had not been rebutted by cross-examination or other evidence. He, therefore, granted full back wages with salary for the month of September, 1967.
3. In the Miscellaneous Petition No. 904 of 1969 the above award was challenged under Art. 226 of the Constitution. The contentions advanced by Mr. Shetye for the appellant before the learned single Judge were as follows : The Labour Court had acted in excess of jurisdiction in directing reinstatement of respondent No. 1 in service with full back wages. The submission was that in view of the strained relationship between the parties, the Labour Court should have in its discretion refused to grant reinstatement in service and in any event should not have directed payment of full back wages. This submission was developed by arguing that respondent No. 1 had not led evidence to show that he had made efforts to secure employment unsuccessfully during the period between the date of the award and the date of his discharge from service. These contentions were negatived and the findings made by the learned single Judge were as follows : Respondent No. 1 had been removed from service without any reasons whatsoever and this was a case of victimisation, for the demand made for bonus and the conduct of the appellant had been rightly described by the Labour Court as involving unfair labour practice. As regard the question of reinstatement the learned Judge read the observations of the Supreme Court in the case of Hindustan Steels Ltd. v. A. K. Roy, : (1970)ILLJ228SC . In applying the principles contained in the above authority, the learned Judge noticed that it had been observed by the Labour Court that the relationship between the parties has become strained. The learned Judge, however, found that the reinstatement of respondent No. 1 was correctly ordered. In that connection, the learned Judge held that in the written statement of defence the appellant had not pleaded that the continuance of respondent No. 1 in service was hazardous or prejudicial to the interest of the appellant and/or was injurious to his business. In fact, before the Conciliation Officer the appellant had expressed willingness to reinstate respondent No. 1 in service and the only dispute which had continued to subsist at that stage between the parties related to the payment of back wages. The learned Judge accordingly pointed out that the conduct of the appellant before the Conciliation Officer proved that in the opinion of the appellant himself there was no harm or harassment in continuing respondent No. 1 in service. The observation that the relations between the parties were strained was only in connection with the attitude of the appellant in respect of the claim made by respondent No. 1 for bonus and in connection with leave. This was entirely insufficient to reject the claim for reinstatement. As regards the question of back wages granted by the Labour Court, the learned Judge held that respondent No. 1 had 'as stated by him continued to try for his employment and in spite of his efforts the petitioner refused to do so'. The learned Judge, therefore, held that the Labour Court had justifiably granted back wages and rejected the petition.
4. The contentions made before the learned Judge are repeated before us by Mr. Sawant for the appellant. His main and substantial contention was that the learned Judge had failed to notice that respondent No. 1 had not proved by leading evidence that during the relevant period his efforts to get employment had failed. This failure, in the submission of Mr. Sawant, was sufficient for a finding that respondent No. 1 was not entitled to payment of any back wages at all. In his submission back wages amounted to damages and it was in law obligatory on respondent No. 1 to make efforts to gain employment and to prove before the Labour Court that in spite of such efforts he had failed to get employment. In that event only back wages could be granted. He also submitted that having regard to the finding of the Labour Court that the relations between the parties were strained the learned Judge should have held that the award for reinstatement was incorrect. For these reasons, he submitted that the award should be set aside.
5. In support of his above submissions, he relied upon the observations of the Division Bench of this Court in the case of Malik Dairy Farms v. Its Workers' Union : (1968)IILLJ523Bom , where in setting aside an ex parte award made in favour of an employee, the Division Bench, in the absence of the employee before this Court, accepted the contention made on behalf of the employer that a servant who sued his employer for wrongful dismissal must show that he had made efforts to minimise his losses. Now, it requires to be noticed that the award which the Division Bench was considering was ex parte award made in the absence of the employer. The Division Bench was disposing of the case before it ex parte in the absence of the employee. The Division Bench was not prepared to lay down finally any proposition as appears from the phrase 'as at present advised' that is used by the Division Bench while accepting the above-mentioned proposition as a proposition with which the Division Bench was inclined to agree. The only result of the decision of the Division Bench in that case was that the ex parte award made by the Labour Court was set aside with a direction that an opportunity should be given to the employee and the union of the workmen to show that the employee had made necessary efforts to find gainful employment during the period of dismissal and was unable to get it. In this very connection, one cannot forget that in the case of Hindustan Steels Ltd. v. A. K. Roy (supra) it is observed that the relief of reinstatement in service was discretionary and not compulsory and 'if the circumstances of a particular case are unusual or exceptional so as to make reinstatement inexpedient or improper, the relief may be refused by the Tribunal concerned. The discretion in granting relief of reinstatement was liable to be exercised judiciously and the question of relief of reinstatement granted by an Industrial Tribunal was in that light liable to be reconsidered and investigated by the High Court in its jurisdiction under Art. 226. The question accordingly in the present case is as to whether in confirming the award made by the Labour Court, Kantawala, J., has failed to act in accordance with the above principles. On the question of the reinstatement ordered by the Labour Court every relevant factor has been noticed by Kantawala, J., as already stated above in reciting the findings made by the learned Judge. The circumstances as found by the learned Judge are established on the record of the proceedings before the Labour Court. Having regard to the existence of these circumstances, every argument made by Mr. Sawant for a finding that the order of reinstatement was incorrect must fail. The finding made in that connection by the learned Judge is accordingly confirmed.
6. On question of back wages, one cannot forget that having regard to the facts in the present case the contract of employment of respondent No. 1 has been rightly held to be wrongfully attempted to be broken by the appellant. The breach attempted to be committed by the appellant was liable to be completely set off and remedied, so that respondent No. 1 would not suffer any monetary damages in consequence of the breach attempted to be committed by the appellant. The consequence of the above discussion is that respondent No. 1 was entitled to payment of all and singular amounts of his arrears of salary on the footing that the contract of employment had continued in existence. Now, it is true that even in such situations the employee cannot be permitted to have double advantage and to make excessive gains by relying upon wrongful conduct of his employer. Whatever he earned during the period for which he was effectively not maintained in service must be accounted for by him and to that extent the liability of the employer must diminish. This is the direct result of the provisions in labour legislation entitling an Industrial Tribunal and/or Labour Court to grant relief of reinstatement with back wages. The question whether an employee had been gainfully employed during the relevant period must ordinarily be raised and agitated not by the employee but by the employer in the proceedings before the Industrial Tribunal and/or the Labour Court. It cannot be expected of an unlearned and a simple workman that he should remember to lead evidence to prove before such Tribunals about the facts of efforts made by him during the relevant period for procuring employment. In the present case, to succeed in his arguments, the appellant was bound to tender before the learned single Judge the record of evidence led by the parties on this question. The award of the a Labour Court appears, to us to be on the footing that there was sufficient evidence to show that in spite of the efforts made by him respondent No. 1 had remained unemployed during the relevant period. That is the finding of the learned single Judge. In connection with this question, the appellant must fail, because an effort to bring relevant evidence recorded by the Labour Court on the record of the miscellaneous petition on the original side had never been made on behalf of the appellant. The record of the proceedings in the miscellaneous petition is the only record which we can read in this appeal. The record in this appeal does not include the evidence on the record of the Labour Court and we are not in a position to investigate the quantum of evidence led on this question on behalf of respondent No. 1 and the cross-examination thereof on behalf of the appellant. Similarly, we do not know the evidence led by the appellant in this connection. We are for this reason unable to appreciate the strong efforts made on behalf of the appellant to argue that respondent No. 1 had failed to prove necessary facts to entitle the Labour Court to make its award in respect of the back wages. We are unable to see aside the findings made in that connection by the learned single Judge. The award was rightly confirmed by the learned Judge. We confirm the order made by the learned single Judge.
7. The appeal is dismissed. No order as to costs.