The burden of proof of the employee's unemployment during the interregnum period lies with the employee, and the initial onus is on the employee to plead and prove that he was not gainfully employed. The employer should be given an opportunity to lead evidence on the issue of the employee's gainful employment.

JUDGMENT

Shampa Sarkar, J. - Being aggrieved by the award dated August 29, 2011 passed by the learned Judge, First Labour Court, West Bengal at Kolkata, in Case No. 02 of 2000, the employer-company and one its officers have preferred this writ petition under Article 226 of the Constitution of India. By the said award, the court below had, inter alia, held that the service of the applicant, was terminated illegally by the Company and the workman who is the respondent no.3 herein, was entitled to get back his service with full back wages and other consequential benefits. The company had been further directed to reinstate the respondent no.3 with immediate effect and to pay him the full back wages from the date of termination till the actual date of reinstatement.

2. The facts leading to the filing of the writ petition are that the respondent no. 3 while working as a pair spinner had been allotted work in the 'B' Shift. On December 13, 1998, at about 8.30 p.m., the respondent no. 3 was found working in an inefficient manner. When the superintending shift assistant questioned the respondent no. 3, he shouted back at his superior in abusive language and threatened to kill him by pointing a knife. A charge-sheet was issued by the competent authority of the petitioner no. 1 dated December 14, 1998 and the respondent no. 3 was also suspended on and from the said date. The respondent no. 3 submitted his objection to the said charge-sheet. A domestic enquiry was initiated by appointment of an Enquiry Officer. Upon completion of the domestic enquiry, the respondent no. 3 was found guilty and was dismissed from service by a letter dated October 28, 1999. The respondent no. 3 raised an industrial dispute. The respondent no. 3 challenged the domestic enquiry as also the order of dismissal before the Deputy Labour Commissioner, Government of West Bengal, Chandannagar which subsequently led to filing of a case under Section 10(1)(b) of the Industrial Disputes Act, 1947, before the learned First Labour Court, New Secretariat Building at Kolkata being case No. 2 of 2000.

3. The petitioner no. 1 contested the proceeding. By an order dated May 5, 2008 the learned Judge, First Labour Court set aside the domestic enquiry on the ground of violation of the principles of natural justice. It was held that sufficient evidence had not come forth to charge the employee with the allegations of riotous or disorderly behaviour, habitual negligence and frequent repetition of such act or omission for which fine could be imposed as a punishment. The petitioner no. 1 was directed to reinstate the respondent no. 2 with full back wages from the date of termination till the date of reinstatement with consequential benefits. It was further held that as the employer had not pleaded that the respondent no. 3 was gainfully employed before any other concern since termination of service and as no documents had been put forward by the employer with regard to allotment of a shop to the applicant from where he was selling 'Chatu' and 'Bhujiya', the contention of the petitioners that the respondent No.3 gainfully employed during the intervening period was baseless. There was no evidence of any income of the respondent no. 3 from any other source after his termination from service. The learned Court held that under such circumstances the respondent no. 3 was entitled to full back wages.

4. The petitioners preferred the writ petition challenging the above award of the First Labour Court on various grounds, inter alia, nonconsideration of both oral and documentary evidence with regard to past conduct of the respondent no. 3, own admission of the respondent no. 3 of the fact that there was misunderstanding and altercation on the day of the incident, the Court having travelled beyond the pleading and the evidence while allowing full back wages. It was submitted that there was no pleading of the workmen of not being employed during the interim period in the petition filed by the re