P.C.

1. The original Petitioner who is an Employee has challenged the order of Reference (IDA) No. 22 of 2001 to the extent 50% back wages are denied. The original Petitioner thereafter had died.

2. I had indicated to the parties whether an amicable settlement of the dispute can be made. However, since that was not possible and since notice for final disposal at the stage of admission was also issued by order dated 7th July, 2011, the Petition is taken up for final hearing forthwith.

3. Rule. Rule is made returnable forthwith. Learned Advocate for the Respondents waives service of the Rule.

4. The Labour Court has held that there was no case of misconduct and the oral termination of the Petitioner was wholly unjustified.

5. In so far as the question of back wages is concerned, the Petitioner had stepped in the witness box and led evidence. Paragraphs 1 and 2 of the Affidavit in lieu of Examination-in-Chief of the Petitioner read thus :

“1. I say that I was dismissed by the First Party Company on 20.04.1999. Immediately thereafter it was not possible for me to look for and take any gainful employment. At that time 3 different proceedings were going on in various Courts viz. Reference (IT) No. 44 of 1999, Approval Application (IT) No. 09 of 1999 and the dispute raised by my Union in respect of my illegal dismissal. I say that I have been attending the proceedings in this Hon’ble Court on every date on which the matter is on board. It would not have been possible for me to pursue this Reference had I taken any gainful employment. Even otherwise I was around 40 years when I was dismissed; no employer would have given me any employment at that age. Thus, I am not gainfully employed from the date of my illegal dismissal till today.

2. I say that my wife earns meagre income by working as a Cook in a couple of households nearby my residence. I and my entire family is dependent on her meagre income. Her income is hardly enough to save us from starvation.”

6. There was hardly any cross-examination on this aspect save and except two questions which were answered by the Petitioner as under :

(i) I have no documentary evidence to show that I took search of the job.

(ii) It is not true to say that I am earning good income but I suppress the said facts from the court. It is not true to say that I filed false affidavit and I deposed false.”

7 On this background, the learned Judge of the Labour Court has decided Issue No.4 about back wages and observed thus :

“During cross examination taken by the first party company nothing is brought on record to show that the workman was gainfully employed or he was doing some other work or he had some income. The workman pleaded and also deposed in his evidence therefore the initial burden is discharged by the workman to prove that he was not gainfully employed. The company has not brought anything on record to show that the workman was gainfully employed.”

8. However, the backwages are denied for the following reasons given in paragraphs 27 and 28 which read thus :

“27. However our Apex Court in case of Reetu Marbles v/s. Prabhakant Sukla (2010 I CLR 10) observed that :

“there is gap of more than 15 years from the date of termination till aware of reinstatement. No any material placed on record that he was not gainfully employed during long spell of 15 years. Therefore 50% back wages granted.

28. Taking into consideration the above ratio the reinstatement do not follow with full back wages. The termination is dated 20.4.1999. More than 10 years have been passed. The workman has not done the work and in such circumstances full back wages cannot be granted to the workman but the workman would be entitled for 50% back wages.”

9. Mr. Bhatt, Advocate submitted that since the Petitioner had discharged the burden of showing that he was not gainfully employed and since no evidence to the contrary was led by the Respondents, 100% backwages ought to have been awarded. He relied upon the Judgment o