( 1 ) THIS writ petition is directed against the award of the Labour Court dated May 22, 1998 wherein it was held that the dismissal of the petitioner workman vide order dated May 28, 1990, pursuant to an enquiry conducted against her, was not commensurate with the nature of misconduct proved against her and, therefore, the respondent management was directed to reinstate the workman with continuity in service by treating the intervening period as absence from duty as leave without pay. It was further held that the workman is not entitled to any back wages. Aggrieved by the latter part of the award, declining to grant any back wages to the petitioner workman, she has preferred the present petition.

( 2 ) THE brief facts of the case are that the petitioner Operator in the year 1982 with respondent No. 3 herein, at its New Delhi office. She was dismissed from service vide order dated May 28, 1990. She raised an Industrial dispute which was referred to the Labour Court vide reference dated August 12, 1991. The said reference was decided on May 22, 1998 by the labour Court whereby the learned Presiding officer came to the conclusion that though the dismissal of the petitioner workman was not commensurate with the nature of misconduct, however she was not entitled to any back wages since she had nowhere stated in her affidavit that she remained unemployed after dismissal from service, whereas in the affidavit filed by the management it was categorically stated that the petitioner workman had been gainfully employed. The learned Presiding Officer further held that despite the fact that the petitioner workman knew very well that the management had taken the plea of gainful employment as the copy of the affidavit filed by the management had already been supplied to the petitioner workman before the cross-examination of MW1, yet MW1 was not cross-examined on this point, which established that the petitioner workman was gainfully employed after her dismissal from the service of the respondent management. Thus, an order of reinstatement without back wages was passed in favour of the petitioner workman.

( 3 ) THE entire controversy in the present case revolves around the question that whether the petitioner workman is entitled to claim and receive full back wages irrespective of whether she had pleaded or proved the fact of her unemployment. In other words, the sole question that arises for consideration in the present writ petition is as to whether the onus is on the respondent management to prove that the petitioner workman was gainfully employed, irrespective of the fact that she did not mentjon in her affidavit, the factum of her not being gainfully employed during the period of her termination from service.

( 4 ) IN the course of arguments, learned counsel for the petitioner workman submitted that the petitioner workman had stated in her cross-examination by the respondent management that she was not gainfully employed anywhere else. It was also stated by the learned counsel for the petitioner workman that examination-in-chief and cross-examination are both very important parts of the pleadings and have an equal value in the eyes of law. The attention of the Court was further drawn to the fact that the respondent management in their affidavit had not stated as to where the petitioner workman was gainfully employed during the period of her termination. It was also stated that once the petitioner workman had categorically stated that the petitioner workman was not being gainfully employed elsewhere in her cross-examination, the onus to prove or disprove the said fact shifted to the respondent management.

( 5 ) NONE has appeared for the respondent management; hence the matter is decided on the basis of the submissions made by the learned counsel for the petitioner workman as also by perusing the pleadings of the parties. On such perusal, it transpires that the respondent management in its reply has specifically denied that it was req

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