ORDER :

K. M. JOSEPH, J.

1. Leave granted.

2. The appellant is a qualified Chartered Accountant. He was appointed as Manager (Finance) by order dated 22.10.1997. Thereafter, he was posted in 2005 at the Balaghat Mines as the Deputy Chief (Finance). In certain circumstances, which were on account of the death of his father, he had to report late for work on three days. He was served with a show cause and it was followed up by yet another show cause. It was replied to. He came to be suspended on 05.10.2007. He was served with a charge memo on 27.10.2007. Thereafter, he was dismissed on 12.08.2008. The appeal carried by him was dismissed. He filed a writ petition. The writ petition filed was partly allowed by the Division Bench and this has resulted in the present appeal.

3. The controversy lies in a very narrow compass. While the Division Bench has ordered reinstatement of the appellant, the Court has denied him the benefit of backwages. In other words, this Court is called upon to decide whether there is justification to deny backwages to the appellant.

4. We have heard learned counsel for the appellant and learned counsel for the respondent.

5. The respondent is, undoubtedly, State under Article 12 of the Constitution. The contention of the appellant is that the appellant as a Chartered Accountant has been victimised. There was no justification at all in law, or in facts in launching the disciplinary proceedings against the appellant and it has been so held by the High Court as well in the impugned order. The High Court, however, has proceeded to take the view that the appellant is not entitled to backwages. The reason given is as follows ‘specially when the appellant has not worked during the said period’.

6. Learned counsel for the respondent would oppose the appeal by pointing out that the burden lay with the employee, if the appellant wished to show that he had not worked during the period that he was kept out of the employment. The appellant’s counsel joins issue with this proposition. He points out that judgments of this Court establish the principle that all that is required is that the workman/appellant must plead that he had not worked during the period when he was kept out of employment by illegal termination. In this regard, the appellant drew support from a large body of case law. In particular, he drew our attention to the judgment of this Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors. (2013) 10 SCC 324. The Bench of two learned Judges in the said case has, after reviewing of case law which included survey of two earlier three Judges Benches of this Court, concluded as follows:

“38. The propositions which can be culled out from the aforementioned judgments are:

38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.

38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prov