The burden of proof regarding gainful employment during the claimed period rests on the employer, and failure to provide sufficient evidence can lead to the allowance of the employee's claim for back-wages.

K.K. Tated, J.

1. Heard the learned counsel for the parties.

2. Rule.

3. Rule made returnable forthwith. By consent, matter is taken up for final hearing at the stage of admission.

4. By this petition, under Articles 226 and 227 of the Constitution of India, the petitioner original respondent 2nd party challenges the order dated 6.10.2010 passed by learned Presiding Officer, Central Government, Industrial Tribunal No. 2, Mumbai in reference No. CGIT2/35 of 1990 rejecting the petitioner's claim for back-wages.

5. A few facts of the matter are as under:

6. The petitioner is working with the respondent since 1982. Respondent terminated petitioner's services w.e.f. 29.4.1988. Therefore, petitioner made application before the Competent Authority for his grievance. The Government of India, Ministry of Labour by its order dated 24.10.1990 in exercise of powers conferred by clause (d) of sub-section (1) and sub-section 2(A) of section 10 of the Industrial Disputes Act, 1947 referred the dispute to the Tribunal for adjudication 'whether the action of the Management of International Airports Authority of India, Bombay in terminating the services of Mr. G.K. Pande, Operator (E&M) w.e.f. 12.1.1988 is legal and justified. If not, to what relief the workman is entitled?'. Thereafter, the petitioner filed statement of claim making out a case that he was appointed by the respondent 1st party in 1982 on permanent post. He contended that he served with respondent 1st party for more than six years. By order dated 24.4.1988, the respondent terminated the petitioner's services.

7. On 27.4.1995 by Award Part I, the Tribunal held that the services of the petitioner had been illegally terminated. No enquiry had been held against the petitioner prior to termination of his services and therefore, the Tribunal permitted the respondent-employer to lead evidence to justify its action which it had taken under Regulation 31(2)(vi) of the International Airport Authority of India (General Conditions of Service) Regulations, 1980. By Part II award dated 5.3.1997 the Tribunal held that the action taken by the respondent No. 1 against the petitioner was justified in view of the evidence led before it. However, the termination was held to be effective from 29.4.1988 and not from 12.1.1988.

8. Being aggrieved by the said order, the petitioner preferred Writ Petition No. 3513 of 1997 in this court. The said Writ Petition was decided by this court by oral judgment dated 24.9.2008 and the case was remanded to the Labour Court to decide whether back-wages and consequential benefits are payable to the workmen from 29.4.1988 i.e. the date of termination to the date of reinstatement in service.

9. Thereafter, the Tribunal issued two notices to the petitioner to remain present before it for deciding the issue with respect to the back-wages. Those notices were sent to the parties at the addresses which were available with the Tribunal. However, the notices were returned by the postal authorities with endorsements that the petitioner had "left" the premises and "Does not stay at the present address". Therefore, the said reference was decided ex-parte by the Tribunal by order dated 10.8.2009 and dismissed the petitioner's claim for back-wages.

10. Being aggrieved by the said order dated 10.8.2009 passed by the Tribunal, the petitioner preferred Writ Petition No. 8468 of 2009 before this court. This court (Coram: Smt. Nishita Mhatre, J.) by order dated 6.7.2010 ex-parte award dated 1.12.2008 and the order dated 0.8.2009 in Misc. Application No. CGIT 2/4 of 2008 are quashed and set aside. Matter was remanded to the Tribunal to decide on its own merits.

11. Pursuant to the said order, the petitioner appeared before the Tribunal and filed affidavit in lieu of examination if chief dated 28.7.2010. The respondent also filed affidavit in lieu of examination-in- chief of Jagannath Tukaram Palande working with the respondent authority as Asst. Manager (Pers) dated 27.8.2010. After hea