( 1 ) BY this Writ Petition under Article 226 of the constitution of India, the petitioner employee challenges the part of the order of industrial Court dated 9/9/1992, by which the learned Member, Industrial Court directed payment of only 50% backwages to him while ordering his reinstatement in service.

( 2 ) THE facts are - services of petitioner were earlier terminated in the year 1977, and therefore, he filed ULPA Complaint No. 74/1977. After summons in this complaint was served upon the employer, petitioner was taken back, and petitioner did not attend the Court and hence Labour Court on 10-7-1978 dismissed the complaint in default. In view of this dismissal, the respondent/employer again terminated his services orally by asking him not to report for duty on 28-9-1978. This oral termination was challenged by the petitioner by filing Complaint under section 28 of MRTU and PULP Act, bearing ulpa Complaint No. 103/1984, before the Labour Court. The Labour Court by its order dated 24-4-1991, dismissed the complaint observing that initial burden was upon the petitioner and he did not adduced any evidence. This order of the labour Court was challenged by petitioner by filing Revision under section 44, vide Revision ULPA No. 191/1991, before the Industrial Court. The Industrial court delivered its order on 9-9-1992. It held that the oral termination of the petitioner constituted illegal retrenchment, and as such he was entitled to grant of reinstatement. However, while considering the question of grant of backwages, it found that as petitioner did not adduce any evidence to show that he was not gainfully employed during the period of unemployment, he is not entitled to full backwages. It therefore, granted him only 50% backwages to the petitioner is arbitrary and unsustainable.

( 3 ) I have heard learned Senior Counsel R. B. Pendharkar, with Advocate mrs. Venkatraman and Advocate Sakhre for petitioner and learned Assistant government Pleader Mrs. Taiwade, for respondents.

( 4 ) LEARNED Senior Counsel after stating the facts, contended that there is absolutely no justification given by the learned Member of Industrial Court, for denying 50% backwages to the petitioner. He invites attention of the Court to the ruling of the Hon'ble Apex Court in AIR 1981 SC 1253, Mohanlal vs. Management, M/s Bharat, particularly para Nos. 9 and 16 thereof to contend that once there is non-compliance of section 25-F of the Industrial Disputes Act, the employee is deemed to have been continued in service, and no formal order of reinstatement is also necessary. Therefore he contends that in view of this deeming fiction, the employee is also entitled to full backwages. He has also relied upon the judgment of the Single Judge of Punjab and Haryana High Court, reported in 2002 (1) CLR 132, Pancham Singh vs. State of Haryana, to state that normal rule in such circumstance is grant of full backwages and the deviation is possible only if it is shown that the employee was gainfully employed during this period. It is further contended that burden in this respect is upon the employer. Reliance is also placed upon the judgment reported at 2004 (3) CLR, 557, Nick (India) Tools vs. Ram Surat and another, to contend that when full backwages were legally due to the petitioner, the learned Member of Industrial Court could not have denied the same to the petitioner. The learned Senior Counsel, has also placed reliance upon the Division Bench judgment of Rajasthan High Court reported at 2002 (2) CLR 1027, Bachhu lal vs. Dy. Conservator of Forest, to further show that burden is always upon employer to show that the employee was gainfully employed during the period of un-employment. He has also relied upon two judgments of this Court, reported at 2000 (2) CLR 859, Khandu Rambhau bhosale vs. Western Maharashtra Development and 2000 (2) CLR 863, Sayyad anwar vs. Divisional Controller, MSRTC, respectively, wherein similar view has been taken.

( 5 ) THE learned Se